In Willmott v Woolworths Ltd  QCAT 601, the Queensland Civil and Administrative Tribunal was asked to consider whether requiring job applicants to provide their gender, date of birth and proof of their right to work in Australia was discriminatory.
Woolworths advertised for a console operator position at its petrol outlet in Beerwah, Queensland. Mr Willmott, who lives in Beerwah and was unemployed at the time, saw the advertisement on Woolworth’s website and decided to apply for the position via the online application system.
When completing the application, Mr Willmot was required to provide answers to certain mandatory fields, including his gender and date of birth. He was also required to upload documentary evidence of his right to work in Australia. He was offended by the insistence that he provide such information and did not apply for the job.
Mr Willmott subsequently lodged a complaint with the Anti-Discrimination Commission of Queensland, seeking compensation.
The Tribunal found that requiring applicants to provide their gender, date of birth and proof of their right to work in Australia amounted to discrimination in those particular circumstances. While the information may in some cases be necessary upon commencement of employment, it was deemed to be unnecessary at the initial application stage. In reaching this finding, the Tribunal rejected a number of arguments as to why it was necessary for Woolworths to require that information from job applicants.
- The Tribunal found that it was not necessary at the application stage to obtain an applicant’s date of birth to ensure that they were over 18 where a position so required. It would be sufficient to ask the application whether they were over the age of 18.
- The Tribunal found that it was not necessary to know whether junior rates of pay might apply to a candidate at the application stage. Consideration of pay rates would not to be relevant until an applicant had been offered a position.
- The Tribunal found that Woolworths was not required to obtain gender statistics to comply with their information reporting requirements under the Commonwealth Workplace Gender Equality Instrument, on the basis that the company could make a reasonable estimate from applicants’ names and that, in any case, the reporting requirements had been delayed until 2015.
- The Tribunal found there was no legal requirement under the Migration Act 1958 (Cth) for an employer to require proof of an applicants’ right to work during the initial application stage.
Mr Willmot was awarded $5,000 to compensate him for embarrassment and humiliation, including a notional amount for the missed opportunity of applying for the role.
Lessons for Employers
When preparing job application forms, questionnaires, and advertisements, employers need to carefully consider the sorts of questions they are asking, and the information which they might receive from their employees. While this particular claim could be viewed as a fairly trivial breach, there is no reason why a similar claim could not be made in other State and Federal jurisdictions.
Application forms and job advertisements should be limited to information that is strictly necessary for evaluating the suitability of a candidate to the role. As a person moves through to later stages of the recruitment process, it may then be appropriate to obtain other information, such as proof of right to work.