What does it mean for my employer to give procedural fairness?
Procedural fairness broadly relates to the decision-making process followed or
Your employer cannot, when contemplating candidates for a promotion, allow age to be a substantial reason for the decision not to offer you the promotion. It is likely that this kind of sentiment from your employer is based on economic, rather than logical operational considerations.
As an older employee, particularly if you have been with your company for many years, you are entitled to a salary which reflects your skill set and experience, as well as years of service with your company. In your years of service, you quite likely received positive performance reviews and on this basis your manager may have rewarded you with incremental pay increases.
You are likely to feel bamboozled by your employer’s decision to promote a lesser experienced person to a job which you are well suited to. In an ideal world, you work hard to work your way up the ‘corporate food chain’ until you achieve a superior and well paid position. You have worked hard to achieve your current position and you believe that you are the most suitable and deserving person for that promotion. It almost defies logic to appoint a lesser experienced employee to a position which, as a promotion, would likely require greater skills and experience. Like most employees in your position, you will feel cheated and hard done by.
If your employer denies you the opportunity to be promoted because of your age, you might be able to seek the protection of the Equal Opportunity Act 2010 (Vic). This Act protects individuals in our society from unlawful discrimination which occurs because of certain protected attributes. There are several protected attributes and should your possession of one or more of those attributes be the cause of the discrimination you have suffered, you may be able to seek redress through the Victorian Equal Opportunity and Human Rights Commission.
The Equal Opportunity Act 2010 (Vic) provides a number of specific rights for you regarding age discrimination. The Act states that it is unlawful for an employer to discriminate directly or indirectly against you as an employee or potential employee on the basis of age.
An employer directly discriminates against you on the basis of age if it treats, or proposes to treat you unfavourably because of your age. For example, age discrimination occurs where an employer advises you that you will not be trained to work on new machinery because you are too old to learn new skills. The employer has discriminated against you by denying you training in your employment on the basis of your age.
An employer indirectly discriminates against you on the basis of age if it imposes an unreasonable requirement, condition or practice that has or is likely to have the effect of disadvantaging people of a certain age.
Age discrimination is not always glaringly obvious. An employer refusing to promote you because it is felt that you are too old is a clear case. However employers can also breach anti-discrimination legislation for treating you unfavourably because of a characteristic that appertains or is generally imputed to people of a certain age. For example, it would be unlawful for an employer to treat an older worker unfavourably because you have grey hair; a characteristic typical of older workers generally. It is important to consider the true reason for any unfair treatment in the workplace as at first glance it may not be appropriately identified as age discrimination.
You may be entitled to some sort of remedy if your employer has unlawfully discriminated against you on the basis of your age. However your employer is entitled to discriminate against you if done so lawfully. One way in which your employer may lawfully discriminate against you is through the inherent requirements of a job.
The inherent requirements of a job must be determined in the circumstances of each job, but may include –
– Your ability to perform the functions that are necessary to your job;
– Productivity and quality requirements;
– Your ability to work effectively in a team or other type of work organisation; and
– Your ability to work safely.
In light of these examples, it is a clear contravention of the Act if an employer denies you a promotion because you are older than other applicants. As such, a claim to the Victorian Equal Opportunity and Human Rights Commission can be brought against your employer for discriminating against you on the basis of age.