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Australia’s first successful age discrimination claim could be a lightning rod case for other workers to vindicate their rights. By Kieran Pender.

Landmark win in age discrimination case

Alex Gutierrez and his wife, Aida Gutierrez, at the Federal Circuit Court of Australia.
Alex Gutierrez and his wife, Aida Gutierrez, at the Federal Circuit Court of Australia.
Credit: Supplied

Alex Gutierrez’s boss first asked him about his retirement plans about a decade ago, over an office cake to celebrate his birthday. The Filipino–Australian accountant responded without hesitation: “I’m going to work until I drop dead, or you kick me out.” It was a portentous statement. 

Gutierrez says the question came up again a few years later. He alleges his manager at the international maritime logistics firm MUR Shipping told him it mandated retirement globally at the age of 65. Gutierrez, who was then 68, says he replied that compulsory retirement was unlawful in Australia, and repeated his prior statement about working until health failed him.

“I promised that I would not leave them high and dry, that I would give them enough notice if I did decide to retire,” says Gutierrez. His manager ended the conversation, but the incident left him uneasy. “I was already sensing red flags.”

This exchange, in February 2018, set off a five-year legal battle that culminated last month with a landmark Federal Court judgement. Gutierrez’s case is the first successful age discrimination claim under federal law since the Age Discrimination Act was enacted almost two decades ago.

It is a Gutierrez versus Goliath tale of an elderly accountant taking on a global company and facing down immense financial risk. It is a story of Australia’s frail anti-discrimination regime and a man’s determination to keep working despite the ageism he faced.

“Eventually justice prevailed,” Gutierrez tells The Saturday Paper in his first interview since being awarded almost a quarter of a million dollars in damages.

 

Australian law has prohibited discrimination on the basis of various characteristics for half a century now. The first federal discrimination law was introduced in 1975, the Racial Discrimination Act, followed by the Sex Discrimination Act in 1984 and the Disability Discrimination Act in 1992. These protections are supplemented by general anti-discrimination laws in every state and territory.

Federal protections against ageism lagged behind – the Age Discrimination Act didn’t come into effect until 2004. Such protection has rarely been sought at either the federal or state level – while hundreds of sex, race and disability discrimination cases have been decided, there has been only a handful on the basis of age, and until now, none were successful at the federal level.

The absence of age discrimination claims comes down to “a whole range of factors”, explains Melbourne Law School’s Associate Professor Alysia Blackham. “We still have an ambivalence to age discrimination and age equality. And while we have age discrimination laws, people tend to feel uncomfortable, they’re less likely to bring a complaint. I think often people internalise that discriminatory sentiment – they are less likely to see themselves as being wronged.

“Partly it’s about the nature of age discrimination itself, partly it’s about the nature of our system that really encourages informal resolution.”

It is certainly not due to a lack of age discrimination in our workplaces. “All the reports that we have, all the studies that we have, seem to say that age discrimination is rife – not just against older workers, but against younger workers too,” says Blackham, pointing to research from the Australian Human Rights Commission in 2021, which found 63 per cent of Australians had experienced ageism in the past five years. 

“So it’s not that age discrimination isn’t occurring, it’s just that legal mechanisms aren’t being used to address it.”

Blackham says her interest in the field first arose in relation to younger workers. “It was in the context of widespread wage theft, sexual harassment, employers phoenix-ing,” she says, referring to a company practice of liquidating to avoid paying its debt, which can leave staff unpaid. Blackham’s doctorate supervisor suggested she also consider older generations and retirement, leading to an award-winning book on the careers of older workers. “What I really like about my work now is that I can think about everyone across the age spectrum and the way in which we ensure age equality for everyone.”

The academic stresses that prohibitions on age discrimination are important for all workers. “Often when we talk about age discrimination law there’s this idea that we’re pitting the old against the young,” she says. “But I think often the forms of ill-treatment that we see on the basis of age are quite similar across older and younger workers. For example, a disregard for their economic needs – ‘well, they can retire, they’ve got a pension’, or ‘they’re only young, so they don’t need high pay’. This same sentiment feeds into poor treatment of both young people and older workers.”

As the average age of the population increases, and the cost of living pushes workers to delay retirement, Australia will be forced to grapple with the destructive reality of age discrimination. 

“There are really strong reasons to encourage people to stay working, and to find jobs that enable them to continue to have a second, third, fourth career into older age,” Blackham says. “One of the challenges, though, is that our attitudes towards age have not kept up with demographic change. And so I think we will continue to see people experiencing pretty appalling age discrimination at work.”

The anti-discrimination expert is hopeful that the Gutierrez case could encourage more workers to vindicate their rights. “I’m cautiously optimistic that this could be a lightning rod case,” she says. 

But Blackham stresses individual litigation is never going to be a panacea. “I would be encouraged to see people being able and willing to use the legal framework,” she says. “But I don’t think we can depend on individuals bringing complaints to achieve that societal change. Individual complaints are important, but they’re part of a much bigger enforcement picture.”

 

Not every worker who has experienced age discrimination would endure what Alex Gutierrez went through to see justice. After facing increasing pressure to retire, including being required to train an international transferee within the company, who was seemingly his replacement, Gutierrez eventually conceded defeat. 

“I gave up,” he recalls. “What could I do? They’d made up their mind. I had said I would work until I dropped dead or they kicked me out – they took the second option.”

Gutierrez nominated his 70th birthday, in September 2019, as his retirement date. But the pressure kept coming, including an attempt to move Gutierrez to a short-term contract. The discrimination began to aaffect his mental health. “I felt betrayed,” he says. “Twenty-five years I had worked with them.”

The accountant began to have trouble sleeping, and experienced a loss of appetite and an inability to concentrate. Eventually, he left the company and lodged a complaint with the Australian Human Rights Commission, in August 2018, which progressed to a claim in the Federal Circuit Court.

As the case dragged on, Gutierrez racked up legal fees – dipping into his superannuation and even borrowing money from his daughters. “Instead of bank of mum and dad, I tapped a loan from the bank of daughters,” he says. “I was embarrassed – I should have been the one lending money.” Rather than spending time with his grandchildren, including his youngest, still a baby, Gutierrez was fighting for justice.

In late 2021, just weeks before Christmas, Gutierrez received mixed news. Judge Rolf Driver found MUR had unlawfully discriminated against Gutierrez, making his case the first successful age discrimination claim under federal law. But the ruling was narrow: the unlawful discrimination involving only the contract change and the requirement to train his successor, not the wider course of conduct.

The judge awarded $20,000 for the impact on his health but no damages for economic loss – finding that the shipping firm had not forced Gutierrez out. Driver also ordered MUR to apologise. “This is, in my mind, a case where an apology is likely to be at least as valuable to Mr Gutierrez as the payment of damages,” the judge wrote.

By this point, Gutierrez had incurred almost $150,000 in legal fees. Given the low award of damages, he also faced the risk of being ordered to pay MUR’s costs – likely in a similar range – under legal rules that encourage parties to settle disputes. All up, despite having being vindicated, Gutierrez faced the prospect of financial ruin. 

“I was emotionally destroyed,” he recalls.

Gutierrez wrote to his barrister, anti-discrimination specialist Kellie Edwards, saying he would like to appeal but had run out of money. He recalls that he told her, “I’ve already used up all my savings, all my superannuation. I’m indebted up to my neck.”

Edwards had other ideas. The Sydney barrister thought the case had strong prospects and offered to run the appeal on a no-win, no-fee basis. Almost 18 months later, in early May, Justice Stephen Burley accepted Gutierrez’s appeal. Finding that the trial judge’s assessment of damages had been “manifestly inadequate”, Burley instead ordered $90,000 in general damages, for hurt and distress, and allowed economic loss, too, in the amount of just over $142,000.

The effect of the evidence in the case, Burley found, “is to paint a picture of a man who has suffered considerable loss of amenity of life, including a diagnosed inability to work, loss of enjoyment of social aspects of his life, and an adjustment disorder with depression and anxiety”. This came as a result of the unlawful discrimination, and therefore Gutierrez was entitled to full compensation.

In addition, MUR will likely be required to pay most of his legal fees. 

“I feel vindicated,” he says. “But still not happy – this should never have happened.” Gutierrez would prefer to be at work, doing the job he loved, but has been unable to find employment since. “What work can a 73-year-old get?” he asks.

In the midst of his interview with The Saturday Paper via Zoom last week, Gutierrez’s two-year-old granddaughter interrupts the call with a playful giggle. While she plays in the background, Gutierrez reflects on the broader meaning of his legal success. 

“It might sound dramatic, but I feel like I was released from prison after five years. I still feel lost, but I’m happy with the decision – a precedent has been set.”

This article was first published in the print edition of The Saturday Paper on June 10, 2023 as "Age-old solution".

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