Reaching the age of retirement is not fair grounds for dismissal. A recent decision of the Federal Court affirmed that the age of 65 constitutes a voluntary retirement age. Employees are entitled to work beyond this provided they are capable of performing their duties.
Mr Cheng had worked at a Thai restaurant for 15 years. He took his long service leave and then, upon returning to work, was informed that he was rostered on for part time work.
Over the course of several escalating communications, Mr Cheng was told that Company policy dictated that the business did not employ anyone who reached 65.
The Federal Court found that this statement did not reflect a substantive policy of the business and added that, in any event, such a policy would be discriminatory. Therefore, Mr Cheng was successful with his unfair dismissal application.
This is a helpful reminder that employers should not presume that their employees will voluntarily retire at 65, as they are entitled to work beyond this provided they are capable of performing their duties.
Interestingly, the business and its directors also received substantial fines for failing to keep adequate records relating to employee leave entitlement and termination.
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