Direct discrimination occurs if a person treats someone else less favourably than they would another person in comparable circumstances because of, for instance, age or race.

Indirect discrimination involves imposing a requirement, condition or practice that appears fair and neutral but can only be complied with by a higher proportion of people without the attribute or personal characteristic. The question is whether the issue is likely to have a proportionately different or worse impact on a particular class of persons.

Most unfair treatment is clear, for instance not getting a job because a person is told they are too old, or not being able to rent a flat because you and your partner aren't married, but sometimes it is less obvious. Sometimes, a policy or rule seems fair because it applies to everyone, but a closer look shows that some people are being treated unfairly. For example, an employer might have a policy of not letting staff work part-time. This policy could impact unfairly on people who have children and can't work full-time, and may be against the law. This is called indirect discrimination, and is against the law, where it can be shown that the rule isn't reasonable in all the details of the case.

AGE DISCRIMINATION – TEACHING OLD DOGS NEW TRICKS

Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QCA 518, Court of Appeal, Davies, Jerrard JJA and Philippides J, Brisbane, 27 November 2002

The Queensland Court of Appeal has dismissed an appeal by an employer and confirmed an Anti-Discrimination Tribunal decision which found that the employer had dismissed two employees on the basis of their age and contravened s136 of the Anti-Discrimination Act 1991 (Qld). The facts were that the employer had hired the complainants as storemen for a period of approximately three months, before dismissing them both in March 2000 on the basis that there was insufficient work due to a down turn in trade. In April 2000 one of the two complainants became aware that two younger employees had filled their previous positions. The complainants had their matter referred to the Tribunal by the Anti-Discrimination Commissioner on 8 December 2000. The employer argued that there had been a downturn in the business which meant there was not enough work to retain the complainant’s services and the terminations were decided on a “last employed, first out basis”.

However, the Tribunal found that there was no lack of work for the respondents at the time of their dismissal and the loss of business from a major customer did not give rise to a need to reduce the number of storemen employed, nor any need for cost-cutting. There was evidence the employer decided employ storemen who could later be trained as salespeople. The Tribunal accepted that the substantial reason for the respondents dismissal was their age, in contravention of the legislation. The employer was ordered to pay one complainant $72,582 and the other complainant $8,906. The Court of Appeal rejected the arguments on appeal that the Tribunal had failed to give adequate reasons and that there was insufficient evidence to ground the finding of discrimination and the appeal was dismissed with costs.