Can you force an employee to retire?

It’s a question the REEF Helpline recently received from a member. So what’s the answer?

Unfortunately, in the case in question, the employee’s work performance had deteriorated to the point where the member was seriously considering dismissal. In part, the employee had slowed down due to some health issues.

While the employee would be eligible to receive an aged pension if no longer employed, he was adamant that he was still capable of continuing in employment.

The inevitable question arises: can the employer ask the employee to retire because they’ve reached the eligible age to receive a government pension?

It’s important to acknowledge that the employee has a number of statutory protections if the grounds for dismissal are based solely or primarily on age. These include the Age Discrimination Act 2014 (Cth), State and Territory anti-discrimination laws, and the general protections provisions under the Fair Work Act 2009 (Cth).

In this instance, dismissal could only be justified if the employee was deemed incapable of performing the inherent requirements of the job. In most cases, establishing this requires the implementation of a performance management plan (in the same way as unsatisfactory performance is managed with a younger employee).

While initiating discussions and implementing performance reviews with an older employee can be awkward, it is a necessary step to bringing the employment relationship to an end as safely as possible.

Contact REEF

If you’re facing a similar situation, please call the REEF Helpline on 1300 616 170 to talk to one of our Workplace Relations Advisors.