A 74-year-old handyman whose employer told him he should be enjoying his retirement has been reinstated after the Fair Work Commission found his dismissal was unfair.
The applicant in the matter was employed as a casual handyman from September 2017 at the Comfort Inn Fairways Motel in Primbee. The work included pool maintenance, lawn mowing, gardening and repairs to the motel rooms. His employer later purchased a nearby motel, the Oasis Resort.
In April 2019, the employer decide to undertake major renovations to all rooms at the Comfort Inn and asked the applicant to undertake the work. The applicant was tasked with removing built in wardrobes, skirting boards, furniture, beds and mattresses. He was required to render and paint walls and ceilings and install new kitchens, wardrobes and all furniture in the rooms.
In late June 2019, the employer announced the appointment of a new Company Director, Mr Wei.
On 7 August 2019, the applicant was approached by Mr Wei who advised the applicant that the business had decided to amalgamate the maintenance roles for the two motels. Mr Wei advised the applicant that the work would be physically demanding and allegedly said to the applicant that, ‘he should be enjoying his retirement’.
In the Fair Work Commission, Mr Wei said he relied on his personal judgement rather than send the applicant for a medical assessment to ascertain his suitability for the new Handyman position at both motels. He told the FWC that he based his judgement on the capacity of his parents, who were the same age as the applicant, Mr Jones:
MR WEI: I want to say Mr Jones – I very respect Mr Jones, because he is at the age of my father – my mother actually
THE COMMISSIONER: Mr Wei appears to be saying though that he has respect for Mr Jones and that Mr Jones is the same age as his mother.
MR SAGE: His father, I think.
MR WEI: Father and mother, yes.
THE COMMISSIONER: And that basically he was looking out for him.
MR WEI: Yes.
MR SAGE: Yes, Commissioner. Well, if that were the reason it’s still not a valid reason for dismissal, in our submission, because you cannot simply make your own subjective assessment of the safety requirements of a role and whether someone is fit for that job. There is a code of practice in relation to manual handling which applies in New South Wales, which sets out what is required from a safety perspective. Mr Jones himself is familiar with that code.
What the FWC found
Commissioner Riordan of the FWC stated that Mr Wei’s admission that he considered the applicant unsuitable for the combined handyman role because he did not believe the applicant was strong enough to perform it defied logic. The Commissioner noted that, whilst the applicant is only a relatively small 74-year-old man, ‘he is clearly highly skilled, energetic and quite strong, based on his ability to fully renovate six rooms of the Comfort Inn with little or no assistance’. The Commissioner found that to dismiss the applicant due to his age was unsound, capricious and fanciful. Further, the Commissioner found that the applicant was not notified of the reasons for his dismissal with Mr Wei simply telling the applicant that the combined position would be ‘heavy physical work’ and saying words to the effect that, ‘he should be enjoying his retirement’.
In conclusion, the Commissioner stated that:
I note that the Respondent’s did not suggest that they had lost trust or confidence in the Applicant but merely that he should be enjoying his retirement instead of undertaking arduous work.
Whilst I accept that Mr Wei’s sentiments and comments towards the Applicant were genuinely made due to his care and concern for the Applicant, the commentary was, nevertheless, inappropriate and condescending. The age of the Applicant is of little or no concern to the Respondents. The Applicant is legally entitled to work and clearly capable of performing the work. I can find no logical reason why the Applicant should not be the beneficiary of the primary remedy under the Act. I have taken this into account.
Commissioner Riordan ordered the applicant be reinstated to the combined handyman position and for his continuity of service to be maintained.