An Australian worker who was fired because he turned 65 years old was unfairly dismissed and will be paid out more than $40,000 after a win at the Fair Work Commission.

The ruling comes as Australia's technology sector grapples with skills shortages while older workers report widespread age discrimination, raising questions about why experienced professionals are being pushed out of the workforce when their expertise is much needed.

In this case, a well-performing worker discovered a clause in their contract that they would be forced into retirement when they turned 65 years old.

But the Fair Work Commission (FWC) found that such a contract clause was in breach of Australian law and that the dismissal of the worker was harsh, unjust and unreasonable.

The case demonstrates the dangers of age discrimination by employers, and the importance of ageing workers being aware of their rights in the workplace.

The unfair dismissal case was brought by Shicong Sun, who had worked as a “chauffeur-cum-messenger” for the Consulate General of India in Sydney for a decade.

This role involved him driving passengers, running errands and delivering and handling post, paperwork and correspondence.

FWC heard that he had performed this role with no issues across the 10-year period.

But the employment contract signed in 2015 included a clause that Sun would retire from the role once he turned 65 years old.

When Sun was 64 years old, he reviewed this contract and discovered the forced retirement clause.

He had no intention of retiring in the near future, and nor suffered from any health or capacity issues, so approached his boss to discuss this issue.

Sun was told that he must contact the Ministry in New Delhi about this issue, but he did not receive a response, FWC heard.

Days after Sun turned 65 on 18 July 2025, he was dismissed from the role.

He was owed more than $28,000 in untaken long service leave and annual leave which was not paid for nine months, and is still owed $3,500 in annual leave, according to FWC.

In mid-August last year Sun launched the unfair dismissal case, with the backing of the Transport Workers’ Union.

Age discrimination baked into a contract

The case hinged on whether Sun had indeed been dismissed, despite the clause in his contract about forced retirement, and if he had, whether this dismissal was valid.

Representatives from the Consulate told FWC that the age clause was written into the contract as it reflects the Indian government’s employment laws and applies to all its overseas employees.

This is based on the potential for health events, their mental or cognitive capabilities, fatigue, physical capacity and to standardised processes, they said.

Fair Work Commission Deputy President Judith Wright said that this contract clause was not valid as Son was not given an option to reject it as he would not have been employed if he had.

The dismissed worker was an employee of the Consulate General of India in Sydney. Photo: Supplied.

She also said that this was likely in breach of discrimination laws in Australia, which prevent employers from discriminating on the basis of age.

Wright also ruled that there was no valid reason for Sun’s dismissal, and there were no medical or fitness reasons preventing him from completing the work.

“There is simply no reason why the Indian government cannot revise its compulsory retirement requirement for employees in Australia and other jurisdictions where such requirements are unlawful,” Wright said in her decision.

Because FWC cannot order a foreign government to reinstate a worker, Wright instead ruled that Sun should be compensated the maximum allowable amount of $43,519 by the end of the month.

Age discrimination law expert and University of Melbourne Law School Professor Alysia Blackham said the case demonstrates that contractual terms cannot be used to get around age discrimination law.

“The judgement makes it clear that employers who dismiss or force employees to retire at a particular age can be pursued for unfair dismissal or age discrimination,” Blackham told Information Age.

“For most workers, it will be unlawful to force them to retire at a particular age.”

Age discrimination still rife

Age discrimination has been found to be rife in the Australian tech sector and wider population.

According to a 2021 survey of nearly 2500 Australians by the Australian Human Rights Commission, nearly two-thirds had experienced ageism in the previous five years.

“Age discrimination remains common in Australia,” Blackham said.

“While mandatory retirement ages have been prohibited in Australia for many years, we still see cases where employers force their workers to retire at a specific age.”

If a company has real concerns that someone can’t properly do their job anymore due to their age, there are specific steps they need to follow, Hallas said.

“Employers who hold genuine concerns about an employee’s ability to perform the inherent requirements of a role may, in appropriate circumstances, request an independent medical examination to assess their capacity to perform the role,” she said.

“The focus must remain on the individual employee’s actual capacity and performance, rather than general assumptions about older workers.”

Stephanie Hallas, a principal lawyer at employment law firm McDonald Murholme, said that workers cannot be fired simply for reaching a particular age.

“A birthday is not an expiry date,” Hallas told Information Age.

“Employers need to be careful when considering an employee’s age as an automatic trigger to end the employment relationship.

“Without a compelling and lawful reason, an employer may breach federal and state anti-discrimination legislation by requiring an employee to retire at a particular age.”