Much media cov­er­age has been giv­en to whether US Pres­i­dent Joe Biden has the phys­i­cal capac­i­ty and men­tal acu­ity to cam­paign and secure a sec­ond term for the Democ­rats and then, if suc­cess­ful, effec­tive­ly serve for the dura­tion of that term. Pres­i­dent Biden would be 82 years of age at the start of a sec­ond term, 86 years old at the end of it.

While com­men­tary and prog­nos­ti­ca­tion about the US pres­i­den­tial elec­tion is out­side the scope of this arti­cle, the dis­cus­sion about Pres­i­dent Biden rais­es broad­er ques­tions for employ­ers about employ­ees of an advanced age.

In man­ag­ing old­er employ­ees, employ­ers need to be mind­ful of the Age Dis­crim­i­na­tion Act 2004 (Cth) (ADA) and the gen­er­al pro­tec­tions pro­vi­sions of the Fair Work Act 2009 (Cth) (FWA) that pro­hib­it adverse action for a range of pro­hib­it­ed rea­sons includ­ing, rel­e­vant­ly, age.

Assump­tions

Assump­tions about the abil­i­ty of an employ­ee to con­tin­ue in employ­ment based on age alone can lead employ­ers to make dis­crim­i­na­to­ry decisions.

There are myr­i­ad exam­ples in pop­u­lar cul­ture of enter­tain­ers and artists who defy such assump­tions. Mick Jag­ger still ener­get­i­cal­ly struts up and down the stage when per­form­ing with the Rolling Stones at the age of 80. Even more incred­i­bly, by his side is Kei­th Richards, who has hard­ly been an exem­plar of clean liv­ing, play­ing gui­tar at the age of 80. Bob Dylan is still per­form­ing con­certs as part of his apt­ly titled Nev­er End­ing Tour at the age of 83. Paul McCart­ney per­formed shows that went for close to 3 hours in Syd­ney last year at the age of 81.

Film direct­ing can be stress­ful and ardu­ous yet Clint East­wood, Woody Allen and Fran­cis Ford Cop­po­la direct­ed their most recent releas­es at the ages of 91, 87 and 84 respec­tive­ly. One of the most acclaimed releas­es of this year, Furiosa, was direct­ed by 79 year old George Miller. The Por­tugese film direc­tor, Manoel de Oliveira, direct­ed his last fea­ture film at the age of 103 after a burst of pro­duc­tiv­i­ty in his nineties.

Leg­endary radio announc­er John Laws still broad­casts every day at the age of 88, a fact com­ment­ed upon by Peter Gar­rett dur­ing the last Mid­night Oil con­cert (in which then 69 year old Gar­rett per­formed for close to 4 hours) and in a recent lec­ture by expa­tri­ate lawyer Geof­frey Robert­son KC (him­self 77). Laws’ one time radio rival, Bob Rogers, con­tin­ued broad­cast­ing well into his nineties.

Of course, for every one of these exam­ples, there are many oth­ers who have suf­fered from the rav­ages of time and not in a posi­tion to enter­tain as they once did. For instance, musi­cian Bri­an Wil­son, 2 days younger than Paul McCart­ney, will sad­ly nev­er per­form again.

Some employ­ers erro­neous­ly believe that once an employ­ee reach­es the age of 67 (the age of eli­gi­bil­i­ty for the age pen­sion) they can then retire’ that employ­ee, and some­times treat employ­ees beyond that age as out­stay­ing their wel­come. Many employ­ees are con­tent, of course, to retire at the ear­li­est oppor­tu­ni­ty. Oth­er employ­ees, for var­i­ous per­son­al, pro­fes­sion­al and finan­cial rea­sons, want to remain in employ­ment into their late six­ties, sev­en­ties and beyond.

Capac­i­ty and Performance

The desire for some employ­ees to con­tin­ue work­ing to an advanced age leads to the issue of what an employ­er can do if the per­for­mance of such an employ­ee does start to decline. The start­ing point is this rather trite propo­si­tion: treat them the same as every­one else.

Rather than focus­ing on the age of the employ­ee (ref­er­ence to which should be assid­u­ous­ly avoid­ed in dis­cus­sions), the employ­er should objec­tive­ly address the issues of per­for­mance that have arisen in the work per­formed by the employ­ee, just as they would for any oth­er employ­ee. In short, iden­ti­fy the defi­cien­cies in per­for­mance, pro­vide guid­ance, sup­port and train­ing to address any defi­cien­cies and, where nec­es­sary, pro­vide warn­ings and pro­ce­dur­al fair­ness in the per­for­mance man­age­ment process pri­or to any care­ful­ly con­sid­ered deci­sion to ter­mi­nate employment.

A few fur­ther obser­va­tions about man­ag­ing the per­for­mance of employ­ees of advanced age:

  1. The ADA and rel­e­vant pro­vi­sions of the FWA essen­tial­ly pro­hib­it employ­ees being treat­ed less favourably because of their age. It does not, how­ev­er, pro­hib­it or pre­vent such employ­ees being sub­ject to rea­son­able per­for­mance management.
  2. Fur­ther to this, the oper­a­tion of the ADA and rel­e­vant pro­vi­sions of the FWA do not gen­er­al­ly require the employ­er to take account of the age of the employ­ee and low­er the per­for­mance stan­dards than would oth­er­wise be required.
  3. Those per­for­mance stan­dards should, how­ev­er, be rea­son­able and relate to the inher­ent require­ments of the posi­tion to avoid, among oth­er things, the risk of indi­rect dis­crim­i­na­tion under the ADA.
  4. If an employ­ee is unable to per­form duties safe­ly then not only can the employ­er man­age this issue, it is imper­a­tive that it do so.
  5. If an employ­ee devel­ops a health con­di­tion that affects per­for­mance then the pro­vi­sions of the Dis­abil­i­ty Dis­crim­i­na­tion Act 1992 (Cth) (DDA) should be con­sid­ered. The issue may need to be man­aged as a func­tion of dis­abil­i­ty rather than age. The DDA may require the employ­er to make rea­son­able adjustments.
  6. If an employ­ee has an extend­ed peri­od of ser­vice then, as a gen­er­al propo­si­tion, it increas­es the risk the Fair Work Com­mis­sion will find the ter­mi­na­tion to be harsh” in the event of unfair dis­missal pro­ceed­ings, giv­en the impact that ter­mi­na­tion of employ­ment will have on the employ­ee. For an employ­ee of advanced age, the ter­mi­na­tion of employ­ment may prove to be career ending.
  7. Employ­ees of advanced age are required to com­ply with the same con­duct stan­dards as every­one else. Argu­ments rely­ing upon gen­er­a­tional dif­fer­ence to jus­ti­fy harass­ing or bul­ly­ing con­duct will be giv­en short shrift by a court or tri­bunal. The antics of Are You Being Served?’ are no longer the rel­e­vant standard.

Con­clu­sion

As the (old!) say­ing goes, age is just a num­ber’. In employ­ment, that is true. It does not tell the whole sto­ry about what an old­er employ­ee can bring to an employ­er. That said, as employ­ees look to pro­long their work­ing lives, employ­ers need to con­sid­er how to man­age the issues that can arise from employ­ees of an advanced age thought­ful­ly and sensitively.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

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