Age discrimination has been an area of some discussion with human resources and people and culture teams with concerns over fitness for work, use of technology, physical ability and ability to adapt and change are brought into question. There are of course some positions where there are specific legal obligations around age retirement. However, in Australia most discrimination cases have been battled out in general protections claims or state discrimination cases.
The Federal Court of Australia case of Gutierrez v MUR Shipping Australia Pty Limited (No 2) [2023] FCA 567 now represents a landmark for age discrimination in the federal space as a now 73 year old accountant has taken on his Employer and won a substantial payout of $232,000. Confirming he did suffer loss, he was treated less favorably and his feelings were hurt.
Age Discrimination
Age discrimination is a form of unfair treatment that occurs when an employee or job applicant is treated less favorably in their employment because of their age. This can include being denied opportunities for promotion, training, or other benefits solely based on one’s age. Age discrimination can happen to anyone regardless of their experience or qualifications. This case involved an accountant.
The Age Discrimination Act 2004 (Example) is the federal legislation.
In order to establish direct discrimination, the employee must prove that there was
(a) less favorable treatment; and
(b) that the less favorable treatment was because of:
(i) his age or characteristics that are generally imputed to someone his age including:
(ii) he should be retired; and/or
(iii) he was not competent to keep working; and
(c) that those who were not of his age would have been treated better in the same circumstances or not materially different.
First successful age discrimination case equals $232,000!
The first successful age discrimination case in the Australian Federal legislation has set a precedent for employees who have been treated unfairly due to their age.
In the landmark case, Gutierrez v MUR Shipping Australia Pty Limited (No 2) [2023] FCA 567, an employee was found to be forced to retire at the age of 65 despite being fit and capable of performing his job duties. The Court ruled that he had been treated less favorably because of his age and awarded him $20,000 in damages. The assessment of damages was later reheard and $232,000 was awarded.
The Federal Circuit and Family Court of Australia found that the Employer had breached the Age Discrimination Act in two ways:
- moving the employee to a fixed term contract due to his age when previously he was (like everyone else) a full time employee
- treating the employee less favorably and expecting him to train his replacement even though the employee had not said he would retire.
This ruling sends a powerful message to employers that they cannot discriminate against employees based on their age.
However, this case also highlights the importance of ensuring that employees are fit for work and able to meet the inherent requirements of their job in a safe manner. While employers cannot use someone’s age as an excuse for reducing their work hours or physical demands, they still need to consider any potential risks (especially health and safety risks) associated with certain tasks.
Fitness for work
Fitness for work is a crucial aspect of any job, regardless of the industry or position. It refers to an employee’s ability to perform the inherent requirements of their job in a safe manner. This includes physical demands, mental acuity, and skill level.
Employers have a duty under the Fair Work Act to ensure that employees are fit for work and able to complete tasks safely. This duty extends not only to new employees during recruitment but also throughout their employment.
When it comes to age discrimination cases, fitness for work plays a significant role. Employers may argue that an older employee cannot meet the physical demands of a job or lacks the necessary skills required for certain tasks due to their age. However, this argument must be supported by objective mostly medical evidence rather than assumptions based on stereotypes about aging.
In Gutierrez v MUR Shipping Australia Pty Limited (No 2) [2023] FCA 567 –the first successful federal age discrimination case–the court found that Mr. Gutierrez was treated less favorably in his employment because of his age and awarded him $232,000 after being forced into early retirement despite meeting all criteria indicating he was fit to work.
It is important that employers focus on assessing each individual’s fitness for work based on objective criteria rather than making assumptions based on stereotypes related to factors like age – this case goes to show that there is an avenue for older employees who do not wish to retire to bring a relatively strong age discrimination claim.
Give NB Employment Law a call, we offer an obligation-free consultation and are happy to help. Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
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Written By
Jonathan Mamaril
Director
NB Employment Law
+61 (07) 3876 5111
About the Author
Jonathan Mamaril leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem of mitigating risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
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[email protected]
+61 (07) 3876 5111
