This landmark age discrimination case could set an important precedent for Australian employees.

Alex Gutierrez, a former chief accountant for a shipping company, was celebrating his birthday at work with colleagues when his manager first asked about his intentions to retire. This occurred almost a decade ago. Little did Gutierrez know that this would mark the early days of a long, expensive legal battle.

According to an article from lawyer and writer Kieran Pender, via the The Saturday Paper, Gutierrez, who was described as a “long-term and faithful employee”, told his employer, “I’ll work until I drop dead, or you kick me out”.

In February 2018, when Gutierrez was 68 years old, his manager asked him again about his retirement plans. The manager said the company’s policy was that employees retired at 65 years old. Gutierrez informed his manager that this was unlawful.

Throughout the 1980s and 90s, Australian states and territories began to outlaw compulsory retirement, says Fay Calderone, Partner at Hall and Wilcox.

“At the federal level, provisions allowing for compulsory retirement were removed in respect of public service employees in 1999, and were more broadly abolished for the federal public sector in 2001.” 

There are some exemptions to this law, which we’ll unpack further in this article.

According to the court documents, Gutierrez was subjected to discriminatory behaviour when he was asked to train a new employee who would go on to replace him – despite not giving any formal notice of his retirement – and whom he claims he was “treated less favourably than”.

He was also placed on a fixed-term contract after 25 years of full-time employment.

The court found that this behaviour led to Gutierrez developing adjustment disorder with depression and anxiety, which had “an enormous impact on his ability to enjoy life”.

Gutierrez lodged a complaint due to perceived age discrimination with the Australian Human Rights Commission (AHRC) in August 2018, which was passed onto the Federal Circuit Court.

“As employees are working harder for longer, and cost-of-living pressures persist, work is a marathon not a sprint.”  – Fay Calderone, Partner, Hall and Wilcox.

A winning appeal

When the Federal Circuit and Family Court of Australia first heard this case in December 2021, the presiding judge stated that moving Gutierrez onto a fixed-term contract was a move  to “deprive him of his agency as to his own future [with the organisation]”.

Gutierrez told The Saturday Paper that, after over two decades with the company, he “felt betrayed” and, on his 70th birthday in 2019, he relented and retired.

Over the following years, Gutierrez engaged in a back-and-forth discrimination case with his employer, which culminated in him becoming the first employee to win a case under Australia’s federal age discrimination legislation. 

Calderone says it’s important to note that there have been plenty of successful age discrimination cases under state/territory law – this is just the first successful federal case.

However, the presiding judge only accounted for a portion of the employer’s discriminatory behaviour, which amounted to $20,000 awarded in compensation  for his hurt feelings. At the time, the judge did not believe the employer had forced Gutierrez to retire.

According to The Saturday Paper, this $20,000 didn’t make a dent in the legal fees Gutierrez had racked up over the five-year legal battle (which are said to have amounted to $150,000, some of which had been taken out of his superannuation account).

With a mountain of debt threatening to bury him, Gutierrez took one final chance in filing his appeal. And that risk paid off. In June this year, the case was reheard and the judge ordered the employer to pay general damages ($90,000) as well as economic loss ($142,000). In all, Gutierrez was awarded $232,000.

Before he retired, Gutierrez took leave from work to attend a training program to update his skills and maintain employability after leaving his organisation. While Gutierrez told The Saturday Paper that he now feels “vindicated”, he still feels a sense of loss, stating, “What work can a 73-year-old get?”

Gutierrez’s fears are not completely unfounded. AHRI’s latest older workers research, created in partnership with the AHRC, found that only 25 per cent of organisations are open to hiring people over 65, and one in six organisations reported actively excluding older workers from their recruitment processes.

Why is this Australia’s first successful federal age discrimination case?

“It’s difficult to pinpoint why age discrimination cases have been so rare under the Age Discrimination Act 2004,” says Calderone. “One reason may be the existence of anti-discrimination laws in all states and territories, which are capable of determining age discrimination claims and tend to attract more claimants.”

She also notes that the presence of adverse action provisions in the Fair Work Act may capture more claimants.

“Age discrimination is often perpetrated in the course of employment, and the avoidance of civil penalties contained therein for employers and those involved in the contraventions certainly provides more incentive for settlement. 

“The cost neutrality provisions in the Fair Work Act may be more attractive to applicants rather than the risk of paying costs if [they’re] unsuccessful. In proceedings brought under the Age Discrimination Act, costs will generally be awarded in favour of the successful party in federal unlawful discrimination matters.”

Speaking more broadly, she says it could also come down to Australia’s attitudes towards older workers.

“Perhaps this issue does not receive as much attention as other forms of discrimination, which has led to a lack of awareness of the avenues of redress that are available for victims.”

In summary, she says there are several factors that influence a person’s decision to claim under state/territory or federal legislation, including:

(a)            Time limits for lodging a claim

(b)            Costs of bringing a claim

(c)            Prospects of success under the relevant law

(d)            Remedies available in the event of success.

“The fact that there have been so few cases brought under the Age Discrimination Act – and only one successful case so far – has likely contributed to a perception of uncertainty and risk in bringing a claim under this regime, and accordingly a reluctance on the part of both claimants and practitioners to go down this path.”

What if someone is no longer fit to work?

But what should employers do if their employees reach an age where they can no longer safely perform their jobs – for example, if an employee is required to operate dangerous machinery?

“In some professions, an employee’s age will be a relevant factor in determining whether they can perform the inherent requirements of their job in a safe manner,” says Calderone.

However, in some circumstances, there may be an obligation for an employer to consider how they could make reasonable adjustments to support the employee to continue working, such as reduced hours or less physically demanding tasks (if available).

“Workers over 55 are also entitled to request flexible work arrangements under the Fair Work Act and such requests can only be denied on reasonable business grounds.”

Read more on employers’ new obligations around managing flexible work requests.

Referring back to the legislation which prohibits compulsory retirement, Calderone expands on some of the exemptions.

“In relation to defence force personnel, a compulsory retirement age has been set to ensure that personnel are of an age and physical fitness [level] to meet the demands of service. Meanwhile, under section 72 of the Constitution, justices of the High Court and any court created by parliament must retire once they reach 70 years old.”

She refers readers to chapter 9 of the AHRC’s guide to retirement rights for further information.

“Retention of an ageing workforce [ensures you can] tap into the skills, corporate memory and invaluable learnings that only experience can bring.”  – Fay Calderone, Partner, Hall and Wilcox.

What does this case mean for employers?

Despite the existence of successful state and territory-based age discrimination cases, these are far less common than cases addressing other protected attributes such as race and gender.

While Calderone is hesitant to say this case could open the floodgates to others like it, given the “historic aversion” to such claims, she does think it could bring greater attention to age discrimination in employment.

“Employers should be on notice that they cannot simply move on employees once they get to a certain age,” she says.

She suggests ensuring your company’s anti-discrimination policies and leadership training includes age discrimination as well as diversity and inclusion strategies that encompass a multi-generational workforce, particularly in light of Australia’s skills shortages.

Calderone suggests visiting the AHRC website for useful resources on supporting older workers.

“As employees are working harder for longer, and cost-of-living pressures persist, work is a marathon not a sprint. Workers who feel they’re part of a respectful, healthy and inclusive organisation tend to be loyal and exert more discretionary effort.

“Providing an environment [like this] ensures sustainability and retention of an ageing workforce while still tapping into the skills, corporate memory and invaluable learnings that only experience can bring.”

Ensure your organisation is compliant with critical legislation by signing up for AHRI’s short course, Introduction to HR Law.