This summary of age discrimination law in New Zealand has been prepared by Kiely Thompson Caisley, the Ius Laboris affiliate for New Zealand: www.ktc.co.nz

OVERVIEW

In New Zealand, all employees and applicants for employment are protected from unlawful age discrimination.

The New Zealand Bill of Rights Act 1990 provides that everyone has the right to freedom from discrimination on the grounds contained in the Human Rights Act 1993 (the Act).  Under the Act, discrimination occurs when someone is treated unfairly or less favourably than another person in similar (or analogous) circumstances.  Unlawful discrimination occurs when someone is discriminated against in relation to a defined personal characteristic (age for example) in one of the areas set out in the Act (such as employment and partnerships).

WHO'S COVERED?

All employees in New Zealand are protected from age discrimination by an employer under the Act and the New Zealand Bill of Rights Act 1990.

“Employer” is broadly defined in the Act to include the employer of an independent contractor, the person for whom work is done by contract workers and the person for whom work is done by unpaid workers.  An employer will also include a potential employer.

Equally, “employee” is interpreted broadly under the Act to cover potential employees (applicants for work if they are suitably qualified for the role), unpaid workers such as volunteers and independent contractors.

WHAT ENFORCEMENT/REMEDIES EXIST?

There are no criminal sanctions for age discrimination under the Act and the remedies available are intended to be compensatory and corrective in nature, rather than punitive.  An employee that considers that they are suffering unlawful age discrimination, depending on the circumstances, will have the option of making a complaint to the Human Rights Commission, or raising a personal grievance in the Employment Relations Authority.  The employee must decide which path to take, as they are not able to take both.

HUMAN RIGHTS COMMISSION

Anyone can make a complaint to the Human Rights Commission about age discrimination (whether or not they are the aggrieved person or the employee concerned).  Most often, complaints are resolved through informal methods such as correspondence between the parties, or at a mediation process.  However, if it is not resolved, the complainant, the aggrieved person or the Commission itself, can bring proceedings in the Human Rights Review Tribunal to determine the complaint.  The Human Rights Review Tribunal can order the following relevant remedies for age discrimination:

  • A declaration that a breach of the Act has occurred;
  • An order restraining the breach;
  • Damages (monetary compensation) against the person or agency who committed that breach. This can include damages for humiliation, loss of dignity, and injury to the feelings;
  • An order that a person or agency act in a particular way to redress any loss or damage suffered and/or undertake training.

The most common of these remedies is monetary compensation and the amount awarded will depend on the circumstances of the discrimination.  Recent awards in age discrimination vary substantially.

In the event that either party is dissatisfied with the Tribunal’s decision, that party may appeal the decision to the High Court.

EMPLOYEE RELATIONS AUTHORITY

An employee may, in the alternative, raise a personal grievance regarding the alleged age discrimination against him/her by the employer.  The parties may attempt to resolve the grievance between them first which many involve the parties agreeing to attend mediation at this stage.  Failing resolution, the employee may proceed to file a claim in the Employment Relations Authority (the Authority).  The Authority will usually order the matter to go to mediation in the first instance and most often, parties are able to resolve the matter at mediation or soon thereafter without requiring further intervention from the Authority.  In the event that the grievance is unresolved, it will be referred back to the Authority for investigation and determination.  The Authority can order the following relevant remedies for age discrimination matters:

  • Compensation for humiliation, loss of dignity and injury to feelings;
  • Reinstatement where the employee has lost their job as a result of the discrimination;
  • Reimbursement of wages or money lost;
  • Recommendations of the employer about how to prevent similar employment relationship problems;
  • Compensation for loss of any benefit (financial or otherwise); and
  • A contribution toward legal costs.

The definition of an “employee” in the Employment Relations Authority is set out in the Employment Relations Act 2000.  It is a stricter definition than in the Act and excludes independent contractors and unpaid workers.

KEY DIFFERENCES/SIMILARITIES

Under the Act, any person (irrespective of whether or not they are the aggrieved person) may make a complaint to the Commission against the employer, the contractor and/or the unpaid worker’s employer.  Under the Employment Relations Act, only the employee may raise a grievance against the employer.  The remedies vary between the two jurisdictions; in particular, in the Employment Relations Authority, reinstatement may be awarded.

Mediation and informal resolution processes are available in both forums and with no cost to the parties for the service.

FURTHER VICTIMISATION

It is unlawful for a person to be victimised, or further discriminated against, where they have taken steps to enforce their rights under the law.

ENFORCEMENT

The Human Rights Review Tribunal and the Employment Relations Authority are able to enforce their own judgments.

Under the Employment Relations Act 2000, parties have the option of having their settlement agreement certified, making it enforceable in the Authority and the Employment Court.  The remedies available for a breach are limited but it is not uncommon for penalties to be awarded against the breaching party.  Where an agreement is not certified and the agreement provides for an end to the employment relationship, the agreement is enforceable in the civil jurisdiction (as it is no longer an employment matter) and a much broader range of remedies is available.

In the Human Rights Review Tribunal, the complainant, or the aggrieved person or the alleged discriminator may apply to the Tribunal for enforcement of the settlement agreement.

ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAW?

There are prescribed exceptions to the Act.  In particular, age discrimination is lawful in employment circumstances where the age of an employee is a “genuine occupational qualification”.

It is also open to an employer to attempt to justify a practice that is indirectly discriminatory on the basis that the employer has a “good reason” for the particular discriminatory practice.  A practice can include conduct, a policy, requirement or condition.  An employer is not able to rely on this defence for direct discrimination.

Age discrimination is allowed where the employment position is one of domestic employment in a private household.

In circumstances requiring duties to be mainly or predominately performed outside New Zealand, in a country or area that necessitates age discrimination, then this is lawful.  In the same vein, there is a prescribed exception to ships and crews.  If the employee was employed outside of New Zealand then the Act does not apply to that situation.

Matters involving national security are also treated differently in that it is lawful to require an employee to be older than 20 years.

Retirement benefits are an exception to the law also.

RETIREMENT AGES

Although there is no official retirement age in New Zealand, at 65 the Government-funded New Zealand Superannuation Scheme begins to pay out for both men and women.  The age of retirement for the purposes of private superannuation funds can vary depending on the contractual arrangements entered into between the parties.

INTERESTING CASES

Although age discrimination cases are relatively rare in New Zealand, the legal position is clear.

In Andersen v Fullers Group Limited [2012] NZERA Auckland 397, Fullers made the employee, Mr Andersen, redundant.  Mr Andersen raised a claim in the Authority alleging that he was not considered for a redeployment opportunity as he was too old.  Mr Andersen alleged that this amounted to unlawful discrimination.

The Authority, in deciding the matter, stated that the legal position is clear; age is a prohibited ground of discrimination in terms of the Employment Relations Act 2000 and the Act.  Further, whether age discrimination has occurred or not is a factual matter and the burden of proof lies with the claimant – in this case, Mr Andersen.  The Authority Member went on to say that in order for the discrimination to be unlawful, the employee’s age must directly or indirectly be causative of the employer’s actions.  It is not sufficient for age just to be taken into account, it must be the cause.  In this matter, the employee’s age was a factor but it was not the cause of the decision.  As such, the claim was not successful.

In the case of Brown v New Zealand Basing Limited [2017] NZSC 139, New Zealand’s Supreme Court found that the right not to be discriminated against on the basis of age remained even where the parties to the employment relationship elected that their relationship would be governed by Hong Kong law.