Age discrimination and Australian Law

Discuss about the Develop and Performance Management Process.

According to the Age Discrimination Act 2004 of Australia, the employer cannot show any discriminatory attitude towards any person for his/her age[1]. This law covers the employees of all age from being the victim of any discrimination for his/her age. Here, in the provided case, Julia has surely shown a discriminatory attitude towards John by identifying his age as the reason of his redundancy. As mentioned by Australian Human Rights Commission Act 1986, depending on the “age or medical record,” the employers must not show any discriminatory attitude towards an employee[2]. Moreover, as per “The Fair Work Act 2009”, “discriminating between one employee and other employees” based on his/her age is strictly against the law[3].

However, Julia has followed an unlawful way of executing the redundancy against John. Under the “unfair dismissal law” a part of “Fair Work Act 2009”, an organization cannot fire an employee unless it has a valid charge against the employee’s “conduct, capacity or because of a genuine redundancy”[4]. Hence, it can be said that Julia has performed an unlawful activity by letting John go[5].

However, the case of Sue, Julia has taken a complete wrong way. As mentioned by Australian Human Rights Commission Act 1986, any employer cannot show a discriminatory attitude towards a certain race. However, as mentioned by The Australian Human Rights Commission, the Australian law suggests some racial quota in the employment sector, which is mainly for the aboriginal citizens[6]. Here, Julia is saying that she has to maintain this quota and thus used the redundancy to achieve it, which is illegal. As per the Australian Human Rights Commission Act 1986, “discrimination in employment on the basis of race, color, sex, or ethnic origin” is strictly prohibited[7]. According to this particular law, “Race discrimination” includes treating an individual “(applicant or employee)” adversely “because he/she is of a certain race”. Here, Julia did the exact deed. However, she did against the majority race of the country. Hence, it can be certified as a case of adverse discrimination. However, the laws of this county have prohibited it. She has pointed out the race of Sue as the cause of her redundancy even having no specific performance related issue with her. Moreover, as discussed earlier, according to the “unfair dismissal law” (Fair Work Act 2009), the employer need to provide valid proof of incompetency, violation of company rules or conduct of the employee before laying him/ her off their jobs[8]. However, it the case of Sue, her race was the cause of her redundancy. Hence, it can be concluded that she has acted exactly out of her own psychological bias.

Unlawful execution of redundancy and Australian Law

On the other hand, in the case of Trang, there is official document of low level of performance. According to the Fair Work Act 2009, the major cause of redundancy can be declared as the low performance of an employee[9]. Here the company has enough proof of Trang’s consecutive underperformance, which has also been showed to him as the cause of his job cut. Hence, it can be said that Julia was right to serve her duty in this regard.

However, to uplift the performance level of Julia regarding equal attitude to the employees, she need to provide some sessions regarding the State laws those are involved in this regard, moreover, she needs to make known of the stakes the company has to face in occurrence of such discriminatory cases. For now, some actions need to be taken against Julia for such discriminatory behaviour with the employees.

This particular case can be identified as a bit tricky to assess. As mentioned by Julia, the interview process has a bit hint of racial discrimination over the employees. This accusation can be supported by the report of consecutive failure of the regional operations and regional financial manager in meeting the diversity targets n their workplace. Moreover, as per the latest report, these are significant dissatisfaction among the employees regarding this situation.

It can be feared that by asking the favorite rugby team, the interviewees’ perception regarding the latest cricket match, the two managers were trying to make an idea about the interviewees’ loyalty to any certain ethnic group or state or country. It helped them to recruit the member who has the same socio-political view of these two managers.

However, according to the Racial Discrimination Act 1975 and Fair Work Act 2009, discriminating based on “descent or national or ethnic origin” or “immigrant status” is punishable under these laws[10]. According to Fair Work Act 2009, favoring an employee based on “political opinion, national extraction, and social origin” is against the national law[11].

Moreover, as per the Australian Capital Territory: Discrimination Act 1991 (ACT), showing discriminatory attitude based on “religious or political conviction”, “occupation or calling” and even requesting for information regarding those subjects are prohibited to the employers[12]. Hence, it can easily be said that the interview process was not satisfactory and it has a racial tint within it.

Here, for nullifying the racial issues from the interviews the company can opt for a separate group of interviewers, which will include people from all the different races in the office. The group can make a mandate regarding the questions (like, what can and cannot be asked in the interview session). Moreover, it can be suggested that both the managers need to provide a list of set questions those are needed to be asked and the interviewees can be provided a feedback form after their interview sessions regarding their experience.

Racial discrimination and Australian Law

The statistical analysis of performance cannot be identified as a true indicator of gender bias within an organization. The KPIs are set by ignoring the sex related constrains among the employees. In such a context, the performance analysis report shows a clear bias in the performance. However, it is not much reliable, as this repot has ignored the utmost potentiality of each gender for a certain job role.

As mentioned in the Sex Discrimination Act 1984, the women workers are allowed to obtain the equal amount of pay as their male counterparts[13]. However, in many cases, the organizations deny pay the equal amount to the female workers. It creates a discrimination in the pay role; as discussed in the provide case, it goes unnoticed. 

Moreover, in various empirical cases it can be found that due to the job categories or the responsibility, various departments of plants recruits less number of women. In such cases, the report obviously goes against the recommended provisions under laws like Australian Human Rights Commission Act 1986, Sex Discrimination Act 1984 and many other[14].

On the other hand, as mentioned in the laws like Workplace Gender Equality Act 2012,  Fair Work Act, 2009 and many more, women workers are entitled to a number of work related safeguards like, “maternity leave”, “paternity and partner leave”, adoption leave and many others[15]. These leaves typically reduce the working days of the employees and a biased result comes in focus regarding the performance analysis.

Here, the organizations need to set their KPIs keeping in mind their workplace diversity. Moreover, the KPIs can be made developed according to the gender strength of a company. It will provide a better and clear result of employee performance. 

References:

Australia.Gov.Au. 2016. Australia.Gov.Au. https://www.australia.gov.au/.

Baird, M., Williamson, S., & Heron, A. (2012). Women, work and policy settings in Australia in 2011. Journal of Industrial Relations, 54(3), 326-343.

Bal, P. Matthijs, Dorien TAM Kooij, and Denise M. Rousseau. Aging workers and the employee-employer relationship. Springer, 2015.

Baylâ€ÂSmith, Piers H., and Barbara Griffin. “Age discrimination in the workplace: identifying as a lateâ€Âcareer worker and its relationship with engagement and intended retirement age.” Journal of Applied Social Psychology 44, no. 9 (2014): 588-599.

Biddle, Nicholas, Monica Howlett, Boyd Hunter, and Yin Paradies. “Labour market and other discrimination facing Indigenous Australians.” Australian Journal of Labour Economics 16, no. 1 (2013): 91.

French, Ben, Maree Veronica Boyle, and Olav Muurlink. “Workplace Bullying in Australia: The Fair Work Act and its Impact.” (2015).

Freyens, Benoit, and Xiaodong Gong. “Dismissal Laws in Australia: Reforms and Enforcement by Labour Courts.” (2015).

Harris Rimmer, Susan, and Marian Sawer. “Neoliberalism and gender equality policy in Australia.” Australian Journal of Political Science (2016): 1-17.

Healy, Joshua, and Michael P. Kidd. “Gender-based undervaluation and the equal remuneration powers of Fair Work Australia.” Journal of Industrial Relations 55, no. 5 (2013): 760-782.

Higgins, Claire. “Status Determination of Indochinese Boat Arrivals: A ‘Balancing Act’in Australia.” Journal of Refugee Studies (2016): fev036.

McCrystal, Shae. “Industrial legislation in Australia in 2013.” Journal of Industrial Relations (2014): 0022185614524314.

Piccolo, Raffaele, and Graham Harbord. “Under One Umbrella: The debate over combining anti-discrimination laws into a single Commonwealth Act.”Bulletin (Law Society of South Australia) 35, no. 3 (2013): 20.