Retrenched Because Of Your Age? Here Are Your Legal Rights

A leading Melbourne employment lawyer guides you through the first steps


Increasing life expectancy for the Australian population has resulted in many Australians remaining in the workforce for a longer period of time.

A number of employees in their 50’s are fortunate to enjoy high-incomes and have accumulated significant leave entitlements due to long tenures at one company.

Finding a new position in your 50’s can be difficult, especially if you have just finished a long-term and high-paying role. Therefore holding onto an existing job is very attractive.

Unfortunately, this comfortable position could be under threat due to age discrimination. This threat can be seen in various forms.

For example, an employer may present a performance improvement plan (PIP) out of the blue. The shock of being put on a  PIP when you have been a good employee can be upsetting and make it tempting to resign rather than face an unjust or humiliating process.

Another threat can arise out of a restructure of the business, the main purpose of which is to make the older employee’s position redundant, so the employee can be retrenched.

To establish age discrimination can be problematic when it is disguised in a performance improvement plan or a redundancy. What is important, is for the over 50 employee to be constantly vigilant and aware of their workplace rights.

A PIP which is unjustified should be challenged. A redundancy which can be shown not to be genuine should not be accepted.

Employees are encouraged to challenge

The redundancy provisions of the Fair Work Act 2009 are not generous for an employee who has three or four months of accumulated sick leave.

An employer choosing to pay a three-month redundancy is a cheap way out for the business and not much value to the employee who might never replace the job.

The Australian Human Rights Commission has found that a quarter of Australians over 50 in the workforce have experienced some form of age discrimination.

The Fair Work Act 2009 (cth) places onus on the employer to prove that it has not been guilty of age discrimination, provided that a prima facie case is made out by the employee.

The employee is encouraged by the Fair Work Act 2009 (cth) to challenge any suspect decision. The Act even provides for the employer to suffer a penalty at the hands of the employee. The penalty is usually paid to the employee.

Employers are well aware of the difficulty in winning such cases and will employ qualified lawyers.

The statistics show that if the employee tries to self-represent against such lawyers, the employee will not succeed. The employee must choose a well-qualified lawyer from the first sign of trouble and ideally while still employed.

Properly used, the law is very favourable to the employee, so it is vital that every over 50 employee is well aware of their legal rights.

If you feel that you have been discriminated against in the workplace because of your age, we recommend seeking legal advice.

About the author:

Alan McDonald is Managing Director of McDonald Murholme Solicitors, an employment law firm based in Melbourne and Adelaide.


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