The Queensland Civil and Administrative Tribunal (QCAT) has found that Woolworths discriminated against online job applicants by requiring them to provide their date of birth, gender and proof of their right to work in Australia.

Implications for employers

This decision has very narrowly construed what information can be reasonably required by employers for job applications under the Anti-Discrimination Act 1991 (Qld) (ADA). Employers who operate in Queensland should therefore be very careful when deciding what information they require from job applicants and at what stage of the process.

Background

Under section 124 of the ADA, a person may not ask another person to supply information on which unlawful discrimination might be based, unless it was “reasonably required for a purpose that did not involve discrimination”.

This claim was brought by Mr Willmott, who had considered applying for a console operating position with Woolworths. As part of the online application, Mr Willmott was required to provide answers to certain mandatory fields, which included his gender, date of birth and documentary proof of his right to work in Australia. Mr Willmott was offended by Woolworths’ insistence on the provision of the above information and lodged a complaint with the Anti-Discrimination Commission of Queensland.

Decision

Senior Member Oliver held that asking for an applicant’s gender, date of birth and right to work documentation was discriminatory.

Woolworths conceded that, prima facie, the request for this information could be discriminatory conduct. However, it stated that the information was reasonably required in order to discharge its obligations as a potential employer and also to comply with Commonwealth legislation.

Woolworths argued that it needed the date of birth information to determine if the employee was over 18 (necessary for some positions, such as in BWS liquor outlets) and what entitlements an employee might be entitled to (for example, a lower pay rate for employees under 21). The Tribunal dismissed this argument stating that it was not necessary to determine entitlements until the applicant had at least been offered a position at Woolworths. For applications which required an applicant to be over 18, the Tribunal held that a simple question whether the applicant was over 18 would suffice.

With regard to the gender information, Woolworths submitted that this was necessary to comply with its reporting obligations under workplace gender equality guidelines. Senior Member Oliver rejected this argument, stating that the company could make the gender field non-mandatory and for those applicants who did not answer, make “a reasonable estimate” of gender from their names.

Woolworths also argued that it had an obligation to seek the “right to work” documentation in order to avoid breaching section 245AB of the Commonwealth Migration Act, which prohibits employment of “unlawful citizens”. This was also rejected by the Tribunal which held that an employer would not breach s 245AB by “simply considering applications” or interviewing workers.

Woolworth’s final argument in the alternative was that section 124 of the ADA was inconsistent with sections of the Commonwealth Migration Act and Privacy Act and therefore invalid. The Tribunal rejected this argument, stating that any inconsistency was cured by the “reasonably necessary” defence contained in section 124(3) of the ADA.

The Tribunal ordered $5,000 in damages on the basis of Mr Willmott’s embarrassment, humiliation and a notional amount for “loss of chance”. The damages ordered were very low because Woolworths had already made changes to the online application form, making each of these fields non-mandatory and only requiring applicants to select the “basis” of their right to work.

Willmott v Woolworths Ltd [2014] QCAT 601