Can my employer discriminate against me because of my age?

It is unlawful to discriminate against an employee based on their age. This applies to both young and older employees. In this article, we focus specifically on the federal Age Discrimination Act 2004 (the Act) and consider the following:

• Unlawful discrimination;
• What is age discrimination?;
• Case review – Australia’s first successful federal age discrimination case;
• What can I do if I’m being discriminated against?;
• The remedies and compensation available for a successful age discrimination case.

What is unlawful discrimination?

It is unlawful to discriminate against a person on the basis of many protected attributes in Australia, including age, gender, race, disability and sexual orientation. This applies across many areas, including employment and education. 

What is age discrimination in the workplace?

In the workplace, age discrimination occurs where an employee is treated less favourably than another employee in the same or similar circumstances due to their age or age group.

Under the Act, there are two distinct types of discrimination: direct and indirect discrimination. The definitions below are framed in a way to assist you with identifying whether you are being discriminated against.

Direct age discrimination

Direct age discrimination occurs where a person discriminates against you on the ground of age by treating or proposing to treat you less favourably than they treat or would treat a person of a different age, and the person does so because of your age or a characteristic of your age.

Indirect age discrimination

Indirect age discrimination occurs where a person discriminates against you on the ground of your age if they:

1. impose or propose to impose a condition, requirement or practice; and
2. the condition, requirement or practice is not reasonable in the circumstances; and
3. the condition, requirement or practice has or is likely to have the effect of disadvantaging people of the same age as you.

Case review – Australia’s first successful federal age discrimination case

In Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399, the Federal Court found that a then 68-year-old former Chief Accountant had been discriminated against during his employment due to his age. The Court found that Mr Gutierrez’s employer had treated Mr Gutierrez less favourably than his potential replacement and that this treatment was directly due to Mr Gutierrez’s age.

The worker’s employment history

Mr Gutierrez commenced employment as a Chief Accountant with MUR Shipping (then known as SSM Shipping) on 15 June 2003. He signed a contract of employment with SSM Shipping on 13 February 2004 and was a long-standing employee.

In February 2018, Mr Brian Getty, then Managing Director of MUR Shipping, asked Mr Gutierrez if he had any foreseeable plans to retire. At some point, Mr Getty also spoke with Mr Gutierrez about MUR Shipping having a fixed retirement age of 65 years. Mr Gutierrez informed Mr Getty that he intended to retire in September 2019, which was when Mr Gutierrez would have turned 70 years old.

On 19 July 2018, Mr Gutierrez was informed that his employment would cease on 31 December 2018 and following this, until his nominated retirement age of 70, he would be placed on a fixed term contract. Mr Gutierrez rejected this offer.

On 1 August 2018, Mr Gutierrez’s solicitors sent MUR Shipping a letter informing them that Mr Gutierrez’s employment had been ended in a way that broke the employment agreement.

Mr Gutierrez commences proceedings for unlawful discrimination

On 1 November 2019, Mr Gutierrez commenced proceedings against MUR Shipping in the Federal Circuit and Family Court of Australia for breaches of the Act. Mr Gutierrez claimed that he had been discriminated against on the basis of his age, had been constructively dismissed and had suffered a psychiatric injury, being an adjustment disorder, due to that discrimination.

The Federal Circuit and Family Court of Australia (Division 2 General Federal Law) awarded Mr Gutierrez general damages of $20,000.

Worker appeals decision to the Federal Court of Australia (Fair Work Division)

Mr Gutierrez lodged an appeal alleging that:

1. the award of damages ($20,000) was manifestly inadequate;
2. the primary judge erred in failing to make an award for economic loss; and
3. the primary judge erred in failing to find that the employer had terminated the worker’s employment because of his age.

On appeal, the court found that MUR Shipping did unlawfully discriminate against Mr Gutierrez on account of his age.

The Court determined that the employer pay Mr Gutierrez:

• general damages of $90,000; and
• damages for economic loss in the amount of $142,215.56.

In total, Mr Gutierrez was awarded just over $232,000.

What can I do if I’m being discriminated against due to my age?

If you are experiencing age discrimination at work, you could address the situation by speaking to the person or people involved or with a manager or with someone from your employer’s human resources team, if they have such a team.

If this option makes you feel uncomfortable or if the situation does not resolve, you or someone you engage on your behalf, such as a discrimination or employment lawyer, could make a written complaint to the Australian Human Rights Commission (the Commission).

There is no application fee when making a complaint to the Commission.

The complaint should include details and specify who was involved, what happened, where and when it happened.

The Commission can arrange a translator or interpreter for you if required. You can make a complaint in any language.

Compensation and other remedies after a successful age discrimination case

Section 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) specifies that the remedies that can be granted by a Court in respect to a claim for age discrimination include:

1. an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
2. an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
3. an order requiring a respondent to employ or re-employ an applicant;
4. an order requiring a respondent to pay to an applicant, damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
5. an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
6. an order declaring that it would be inappropriate for any further action to be taken in the matter.

The parties can ask for and agree on a wide range of remedies, including, for example, a written apology, at the conciliation stage. This allows the parties to have more flexibility and control in resolving an age discrimination claim with the Commission.

Get help from an employment lawyer

If you’re experiencing any issues with your employment, including issues related to age discrimination (or discrimination on other grounds), you should contact one of our award-winning employment lawyers for assistance and advice.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au