Fluor Australia Pty Ltd v Tanevski (EOD)

Fluor Australia Pty Ltd appealed against a decision of the Australian Human Rights Commission which found that the company had indirectly discriminated against an employee on the basis of age. The employee, Mr Tanevski, alleged that he was constructively dismissed because of his age and that the employer had failed to accommodate his need for flexible working arrangements. The dispute was heard in the Federal Court of Australia. The central legal issues were whether the employer had engaged in indirect age discrimination and whether the employer could rely on a statutory authority defence.

The court found that the employer had indirectly discriminated against Mr Tanevski because of his age by failing to accommodate his need for flexible working arrangements. The court held that the employer's policy of requiring employees to work on-site was a condition that had a disproportionate impact on older employees. The court rejected the employer's argument that the policy was a genuine occupational requirement. The court also found that the employer could not rely on a statutory authority defence because the policy did not have a sufficient basis in law. The court held that the employer's policy was not authorised or required by a statute and that it was not a reasonable and appropriate means of achieving a legitimate aim.

The appeal was allowed, and the decision of the Tribunal was set aside. The court ordered that the parts of the case identified at paragraph [118] of these reasons were to be heard and decided again by the Tribunal as originally constituted, with leave being granted to the parties to adduce further evidence if they so wish. The remitted proceedings were set down for a case conference at 9.30 a.m. on 6 July 2009.