plicant’
· Employer or re-employ an applicant; or
· Vary the termination of a contract or agreement.
The State and Territory anti-discrimination laws provide for similar types of remedies, although in New South Wales and Western Australia the amount of damage is capped at $100,000 and $40,000 respectively.
An award of damages is the most common remedy in discrimination complaints, although ‘softer’ remedies such as public apologies and development or review of policies and procedures by the respondent appear increasingly common. Damages are awarded as a remedy to place the complainant in the position that they would have been had the discrimination not occurred. Compensation is awarded under two heads – special damages and general damages.
Special damages compensate for quantifiable economic loss. For example, if a complainant can establish that their employment was terminated because of discrimination, then the complainant can claim for past and future loss of wages.
General damages are awarded to compensate the complainant for the hurt, humiliation and loss of dignity suffered.
Disputes involving an alleged contravention of the General Protection Provisions under the FW Act will generally be dealt with at first instance in a conference by the Fair Work Commission. However, employees can elect to go directly to the Federal Court or the Federal Circuit Court if they wish (except where the alleged discrimination takes the form of a dismissal, in which case a conference by the Fair Work Commission is mandatory). Where the matter proceeds to court, the maximum penalty payable is $54,000 for a corporate employer and $10,800 for an individual in respect of each breach. Compensation or reinstatement of the employee may also be ordered.
In related to general protection remedies for age discrimination resulting in dismissal, the main remedies are reinstatement, often with back pay, or monetary compensation. If reinstatement and back pay are ordered, a Court must have regard to the employee’s income or likely income between the time of the dismissal and the time of reinstatement. In some cases reinstatement is ordered without back pay.
The Office of the Fair Work Ombudsman (FWO) monitors and enforces employer compliance with the FW Act. It has been instrumental in regulating discriminatory behaviour as it has the power to prosecute employers on behalf of individual employees. In resolving complaints concerning age discrimination, the FWO has flexibility to enter into Enforceable Undertakings with employers who agree to a range of remedies as an alternative to litigation. However, the FWO’s jurisdiction is limited to investigation of age discrimination in the workplace as defined under the FW Act, and only where state and federal laws do not exclude the operation of the FW Act.
The FWO conducted its first successful age discrimination litigation in 2014. Federal Circuit Court proceedings in Fair Work Ombudsman v Theravanish Investments  FCCA 1170 resulted in orders against a restaurant operator and its directors for almost $40,000 in employee compensation and penalties. The Court found that the employer had contravened age discrimination and record keeping laws after terminating the service of a long-serving employee when he turned 65 years of age, due to its policy of not employing retirement age staff.
How common are claims?
The AHRC received 184 complaints in the 2013-14 reporting year, and has received between 100-200 age discrimination complaints every year since 2004. 60% of these complaints are from complainants aged 45 years and above. However, age discrimination complaints have consistently comprised less than 10% of total discrimination complaints received by the AHRC, compared to disability discrimination complaints (approximately 40%) and sex discrimination complaints (20%).
Approximately 45% of finalised age discrimination complaints undergo conciliation every year. Of conciliated cases in 2013-2014, around 75% were settled through conciliation while a quarter remained unresolved.
In 2015, the AHRC carried out a natio