Employers need to be mindful of age discrimination

WORK TO RULE

MARY-JANE THOMAS
Last updated 13:14 10/03/2014

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OPINION: The Human Rights Act provides that it is unlawful to discriminate against people on several bases, including sexual orientation, gender and age.

The Human Rights Review Tribunal gave a decision on February 20 that employers should take note of.

In 2012 when, aged 62, Mr W applied unsuccessfully for two positions advertised by Alpine Energy Ltd (AE), he alleged that he was discriminated against because of his age.

He took a claim to the Human Rights Review Tribunal - there is no ability to claim under employment law because a job applicant is not owed any duties by an employer under the Employment Relations Act.

The Human Rights Act provides that the Human Rights Review Tribunal, if satisfied there has been a breach of the cct, can make several orders, including awarding damages to an aggrieved person.

Mr W had been an employee of AE from 1975 to 2008 when he resigned.

The first position for which he unsuccessfully applied in 2012 was maintenance engineer. He was interviewed for that position. The second position was engineering officer and he didn't get an interview.

A person was appointed to the position of engineering officer but AE did not receive the level of interest that it had hoped for in respect of the maintenance engineer and engaged a recruitment agency to assist.

AE contacted Mr W and asked for his authority to hand over to the recruitment agency notes and information in relation to his application.

The recruitment agency made candidate recommendations to the employer for the maintenance engineer position, which did not include Mr W.

After interviewing the top- ranked candidates recommended by the recruitment agency, AE appointed a person.

As part of his claim, Mr W applied for disclosure of various documents over which AE either claimed confidentiality as a reason for not giving them or said they couldn't give them to Mr W because they didn't have them.

Included among the things that confidentiality was claimed over were the CVs of the other applicants to the two jobs that Mr W was unsuccessful in applying for.

It is normal in any sort of court proceedings that a process called discovery takes place. AE filed what is called a list of documents setting out all the documents it said it had and would give to Mr W. The list also included documents it said it had but that it was entitled to hold back. Those documents related to the list of applicants who applied for the positions, the personal details of each applicant and referee checks conducted by the recruitment agency.

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The employer also said it no longer had CVs of applicants for the jobs and the notes of interviews with the applicants for the jobs because the documents had either been destroyed or were never given to them by the recruitment agency.

Mr W argued that full access to all those documents was required by him as they might assist in establishing whether persons of younger age with lesser skills, lesser qualifications, lesser direct evidence and lesser time engaged in similar work were considered more favourably and were ultimately given the job.

He also said that AE could not refuse to give the documents from the recruitment agency because the recruitment agency was merely acting as an agent for the employer.

The tribunal ordered that AE had to disclose the CV, application documents, employment history, listed qualifications, experience and other information relating to the applicants who were appointed to the positions of engineering officer and maintenance engineer.

Not surprisingly, the tribunal was unimpressed with argument about the recruitment agency file and ordered that all relevant and disclosable documents held by the recruitment agency on behalf of AE had to be given to Mr W.

The tribunal found that the documents were plainly of potential relevance to the question whether there was age discrimination in the appointment process as alleged by Mr W.

So, employers - just another thing to worry about . . .

* Mary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas for articles. Email her at Mary- Jane.Thomas@prlaw.co.nz.

- The Southland Times

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