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Perspective

Age Discrimination Up in the Air Again?

It is unlawful for an employer to discriminate against an employee, unless it falls within an exemption, such as for inherent requirements.

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In the case of Summers v Qantas Airways Limited [2021] FCA 391, Summers was awarded an interim injunction preventing Qantas from terminating his employment until his discrimination case is heard by the Human Rights Commission.

In April, Qantas dismissed the 65-year-old international pilot for no longer being able to meet the inherent requirements of his position, in accordance with their mandatory retirement policy.

Qantas argued their policy reflects the Convention on International Civil Aviation which prohibits pilots over the age of 65 from operating international flights. Further, Qantas argued the case should be dismissed as it is indistinguishable from the landmark case of Qantas Airways Ltd v Christie (1998) 193 CLR 280.

As in Christie’s, Qantas was found to have lawfully terminated Christie due to attaining the age of 60 and therefore being unable to fulfil the inherent requirements of the job. The operational impact of Christie not being able to operate international routes and taking up smaller routes other captains require would have resulted in practical difficulties and costs for Qantas if they were to continue his employment. The Court found Qantas had no obligation to restructure the roster and bidding system to accommodate for him.

Unlike Christie’s, Summers was not employed solely as an international pilot and operated a number of domestic routes, particularly in the COVID climate. Summers also had the ability to effectively participate in the roster system and blank line system and on the evidence submitted he is physically, mentally, and legally capable of flying the majority of ports, therefore enabling him to meet the inherent requirements of his position. As Summers could participate in the bidding system the operations of Qantas were not impacted and no adjustments was needed to accommodate him.

Judge Katzmann stated that although Summers had a prima facie case, it may not be a strong one. Nevertheless, as more than 30 years have passed since Christie’s was decided, this case should proceed and will be heard in the coming weeks, which we will provide an update for.

Lessons for employers

  • Ensure you are clear with your employees to ensure they understand the inherent requirements of their position (for example their Job Description is up to date and accurate) and the workplace policies.
  • If you are intending to dismiss an employee on the basis of age, ensure you have carefully considered the exemptions of discrimination in employment, otherwise it is likely to result in a discrimination claim. For example, if the exemption you wish to rely on is the exemption of inherent requirements, Gaudron J in Christie stated, a practical method of determining whether a requirement is inherent is to ask whether the position would be essentially the same if it were dispensed with, if it is not essential, you may still be able to undertake the inherent requirements of your job (see Boags v Button).
  • Ensure your workplace policies comply with the relevant discrimination legislation.
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