A 20-year-old woman is pursuing an adverse action claim against a former employer who claimed millennials should have “quick reflexes” and told her she needed counselling.
Everyone, rightfully, expects to be paid for the hours they worked. If they aren’t and they ask why they haven’t been paid, they don’t expect to be told they’re being unreasonable and have their age used against them.
But that appears to be what happened to a Victorian employee who followed up with her employer when her pay didn’t arrive on time.
The employee sent an email asking why she hadn’t been paid for five weeks of completed work. In the email, she reminded her employer that her contract stated she would be paid fortnightly, and that the employer had failed to comply with this.
In response, the employer stated she was waiting for a subsidy application to be approved before being able to pay the employee.
Unfortunately, the employer did stop there. Instead she went on to tell the employee that “for a 20-year-old this is quite a strong demand” and “should you find this not enough for you then you can make your decision to [resign] as there is not enough paid work for you”. She also reminded the employee that she was still within her probation period.
The employee noted that her age was irrelevant to the issue at hand. She again requested her pay be delivered promptly and stated that she would pursue action if it wasn’t.
Her employer didn’t take too kindly to this, and opened an email addressed to the employee with: “Please resign, your probation time [has] expired. We won’t put up with this at all and [you’re] demanding a lot from small employers.”
After further back and forth exchanges, the employee confirmed her resignation, but told her employer that she considered this a constructive dismissal (or forced resignation) and would be taking the issue up with the Fair Work Commission (FWC).
The employer then responded by telling the employee over email and text that she should seek counselling, that she was a “hungry and greedy young person”, and the employer might seek an intervention order (IVO) against the employee.
In May, the employee lodged a complaint with the FWC alleging that her employer “contravened the general protection provisions of the Fair Work Act” by engaging in a constructive dismissal. The employer raised a jurisdictional objection arguing the employee was not dismissed; she resigned.
FWC Deputy President Reg Hamilton rejected the employer’s objection, calling it “largely chaotic and irrelevant”. The next step would be for the Federal Circuit Court to hear the matter.
What spurred the adverse action claim?
Although the crux of the case is the constructive dismissal, the employer’s attitude towards the employee and her age are worth mentioning.
Even Hamilton found it concerning when the employer attempted to dismiss the claim due to the “level of life skills and maturity” of the employee and her lawyer.
Richard Gunningham, Principal at Batch Mewing Lawyers, says the employer’s action verges close to discrimination.
“Based on the emails that are published in this decision, I think the employer is on shaky ground,” he says.
“The comments that the employee ‘should have been completing things quicker because of her age’ and references to her taking ‘a very firm position… for a 20 year old’, in my view do create certain discrimination risks.”
This case is unusual because while we frequently hear concerning cases of ageism against older workers, we don’t often hear about it occurring in the opposite direction. But this case reminds employers that you cannot place different expectations on an employee based on their age.
“Holding someone to a higher standard based on their age gets you into pretty risky territory,” says Gunningham.“Some of the comments made by the employer in the emails do pretty clearly indicate that the employer was holding the employee to a higher standard.”
Despite the ageist comments, this isn’t an unlawful discrimination case. It’s an adverse action or general protections case.
As HRM has covered before, there has to be an intent behind resigning. If someone shouts ‘I quit!’ in the heat of the moment, but then turns up to work the next day, the intent isn’t clear enough to be taken as a resignation.
In this case, the employee didn’t show any indication she intended to resign before the employer suggested it to her. Even then, the employee didn’t immediately resign. After several email exchanges the employee wrote “Please accept this email as confirmation of my resignation” and in the same paragraph noted that she felt forced out.
Clearly Hamilton agreed, stating in his decision, “the Applicant resigned from her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by her employer.”
If the employer could prove it wasn’t a dismissal, says Gunningham, the decision might have gone differently. Unfortunately, in this case the employer could provide this.
“As the deputy president has pointed out, the employer seems to have changed its reasons for the dismissal… over the course of just the jurisdictional issue,” he says. “And so I think that will cause the employer problems down the track.”
The lesson here for employers is to keep clear records around the reasons and circumstances relating to a termination. If an employer cannot present a valid and clear reason to the FWC, it’s likely to weaken their defence.
Want to learn how to avoid an adverse action in your workplace? AHRI’s short course Introduction to HR Law is a great resource to get you started.