Willmott v Woolworths Ltd [2014] QWCAT 601

In December 2013 Mr Willmott was applying for a position at a petrol outlet in his local community. Whilst using Woolworths’ online application system, he was required to provide answers to certain mandatory fields, including his gender and date of birth and was also required to upload documentary proof of his right to work in Australia.

Mr Willmott did not complete the application because he was offended with Woolworths’ insistence on providing the information. He lodged a complaint with the Anti-Discrimination Commission of Queensland, who then referred the complaint to the Queensland Civil and Administrative Tribunal (‘the Tribunal’).

Woolworths claimed that the information was reasonably required by it so it could discharge its obligations as a potential employer and also to comply with Commonwealth legislation.

Woolworths said that it required the applicant’s date of birth to determine whether the applicant was over the age of 18, a requirement to sell alcohol or cigarettes. It also claimed that the date of birth was required to determine the entitlements the employee would receive, as employees under the age of 21 are paid at a different rate to an employee over 21.

In respect of the right to work documentation, Woolworths relied on its obligations under the Migration Act not to employ unlawful non-citizens and claimed that it therefore reasonably required a copy of an Australian birth certificate, working visa or other documentary evidence to prove the applicant had a right to work in Australia.  

Woolworths stated that it required the information on gender as it had obligations under a government initiative to gather statistics on the gender of applicants for positions.

Decision

The Tribunal rejected Woolworths’ claims. It found that Woolworths could make a reasonable determination as to the gender of an applicant based on their name. There was no need to require an applicant to answer this question. Doing so was discriminatory.

Regarding Woolworths’ claims about requiring the date of birth of applicants, the Tribunal found that a simple question on the form asking whether the applicant is over the age of 18 would suffice. If Woolworths needed a date of birth to determine the entitlements owed to prospective employees, this information could be gathered once the applicant had been offered the position.

The Tribunal found that asking whether an applicant is legally permitted to work during the recruitment stage appears to be acceptable. However, the company should request the relevant documentation only after the company has decided to make an offer of employment to the applicant.

This case highlights the care and skill that is required in drafting the questions that applicants are asked during the recruitment process. As is demonstrated in the case, it is advisable not to ask for any information which may be deemed to be unlawful under anti-discrimination laws.  

 

Read the full judgment here.

 

 * PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.