July 17, 2026 — 3:59pmA chauffeur who lost his job after his 65th birthday will receive $40,000 in compensation after the national workplace umpire ruled the Indian consulate unfairly dismissed him.The chauffeur-cum-messenger was employed full-time by the Consulate General of India in Sydney for more than a decade under an employment contract in 2015 in which there was a clause saying he would retire when he reached 65 years of age.The driver had told the consulate he would suffer if he was dismissed because of his age. Generic image.Darrian TraynorThe case highlights the extent to which Australia’s unfair dismissal and anti-discrimination laws can apply, including in cases where an employee has agreed to terms set out in their employment contract.The consulate claimed the man was not “dismissed” because he was employed under a contract for a specific period of time – and that if he was dismissed, that dismissal was not harsh, unjust or unreasonable.Several cases in the public sector have, in the past, resulted in terminations based on age being allowed. In 1998, for example, the federal court ruled a Commonwealth public sector award for Australia Post mandating retirement at age 65 was legal. However, the Public Service Act 1999 abolished compulsory age-based retirement in the public service.The Australian Constitution requires judges of the High Court to retire at age 70, and other courts around the country have similar rules. That has largely prevented judges from becoming enfeebled or dying in office, as has occurred in the United States.More recently, in 2021, Qantas pilots challenged the company’s decision to dismiss them when they turned 65. Qantas argued the pilots were unable to perform the inherent requirements of the pilot role, including meeting rules of the International Civil Aviation Organisation which prohibit a pilot from flying in most airspaces after turning 65. In that case, the commission found the dismissals were not unfair.In the chauffeur’s case, the consulate argued the Indian government’s employment laws required termination at age 65 for several reasons, including increased risk of sudden incapacitating health events, declining cognitive functions and weakened situational awareness once people reach their 60s.However, the commission found the consulate provided “no scientific evidence” to verify these assertions and that there was no medical evidence showing the chauffeur was unable to meet the inherent requirements of his role.“The application of the Indian government’s policy in relation to compulsory retirement … is not in any way comparable to the status of the rules of the International Civil Aviation Organisation,” the commission said.There was ambiguity about whether the man had been dismissed by the employer given he had agreed to the employment contract. The commission ultimately found, however, that the man’s employment was terminated on the consulate’s initiative.When the chauffeur was 64 years old, he reviewed his employment contract and approached a consul to say he did not wish to retire because he was fit to work and would be “put into financial detriment” if he lost his job at age 65.No performance or conduct issues were recorded for the chauffeur over the course of his employment.The consul said the decision would have to be authorised by the ministry in New Delhi. Later that month, the consul told the man that despite contacting the ministry a number of times, the ministry had not responded. The man was also denied written confirmation of termination.By the following month, the consulate was advertising the position. It delayed providing a final payslip to the man, including $28,500 in untaken long service leave and annual leave owed to him, until the following year.The chauffeur said the termination had a serious impact on his financial circumstances as he still had a mortgage, was two years away from eligibility for the age pension, and his wife’s work only paid around minimum wage.Fair Work Commission deputy president Judith Wright found the man was dismissed by the consulate and that there was no valid reason for the dismissal.“There was no evidence before the commission about the reasons for a compulsory retirement age in India,” she said. Requiring a prospective employee to agree to a compulsory retirement clause as a condition of employment in Australia was also likely to offend the Age Discrimination Act, she added.Previous cases before the commission have found sovereign foreign states and their diplomatic missions are not immune from unfair dismissal proceedings.Wright said the Indian government should have revisited its compulsory retirement requirement for employees in Australia, but had “instead dressed up [the requirements] as a fixed-term contract”, which the consulate relied on to try to defeat the chauffeur’s application.The commission found there was no “genuine agreement” between the chauffeur and the consulate about his employment ending at age 65 because it was a condition which the consulate had no discretion to waive.“If [the chauffeur] had not agreed to the term requiring his retirement at 65, he would not have been offered employment by the consulate,” Wright said.Even if there had been genuine agreement, Wright said it was written to prevent employees from accessing to the commission’s unfair dismissal processes.“[The chauffeur] had a long period of good service with the consulate and will have difficulty obtaining alternative employment because of his age, English language skills and lack of qualifications,” she said.The man had migrated from China to Australia in 1988 with English as a second language and had not obtained any tertiary or vocational trades skills.Since losing his job with the consulate, the chauffeur applied for a role at a cleaning company, but said he was told during the interview stage that there was no job suitable for him at his age.The chauffeur was not able to be reinstated to his job because of the Foreign States Immunities Act, but was granted $43,519 in compensation.The Business Briefing newsletter delivers major stories, exclusive coverage and expert opinion. Sign up to get it every weekday morning.Millie Muroi is the economics writer at The Sydney Morning Herald and The Age covering workplace and economics. She was formerly an economics correspondent based in Canberra’s Press Gallery and the banking writer based in Sydney.Connect via X or email.From our partners