23 December 2021

A 68-year-old accountant has been awarded $20,000 in general damages for hurt, distress, and upset as part of a successful claim against his former employer, a logistics and freight services provider, for attempting to transition him from a permanent role to a fixed-term contract role, in contravention of the Age Discrimination Act 2004 (Cth) (“Age Discrimination Act“).

This decision, the first successful age discrimination claim under the Age Discrimination Act, follows recent state and federal age discrimination cases handed down earlier this year, in which employers have been found liable for breaching human rights laws and employment laws that prohibit unlawful age discrimination, such as the Anti-Discrimination 1977 (NSW) (“AD Act”) and the Fair Work Act 2009 (Cth) (“FW Act”). These cases collectively demonstrate that individuals and regulatory agencies are taking a proactive stance against age discrimination in both employment and pre-employment processes.

Gutierrez v MUR Shipping Australia Pty Limited [2021] FedCFamC2G 56

In Gutierrez v MUR Shipping Australia Pty Limited [2021] FedCFamC2G 56, Mr Alex Gutierrez, a long-serving chief accountant, was awarded damages amounting to $20,000 for non-economic loss suffered after being subjected to age discrimination by his former employer, MUR Shipping.

Relevantly, the Federal Circuit and Family Court of Australia (Judge Driver) found that MUR Shipping had breached section 18(2)(a) of the Age Discrimination Act, when it purported to move Mr Gutierrez from his ongoing employment contract to a fixed term contract due to his age, and section 18(2)(d) of the Age Discrimination Act, when it disrespected Mr Gutierrrez by not taking his word that he would retire at the time he specified, imposing a fixed term contract on him and expecting him to train his replacement, against whom he was “treated less favourably”.

Although the Court found that Mr Gutierrrez did not suffer any economic loss, as he chose to resign from his employment when there was no need to do so, damages for non-economic loss were awarded for the offence and hurt caused by MUR Shipping’s conduct.

In awarding the sum of $20,000 in general damages, consideration was given to the “mild adjustment disorder” Mr Gutierrrez suffered as a consequence of his discussions with MUR Shipping regarding the changes to be made to Mr Gutierrez’s terms of employment.

In addition to such damages, the Court also ordered that MUR Shipping issue an apology to Mr Guiterrez, observing that such apology was “likely…at least as valuable to [Mr Guitierrez] as the payment of damages”.

Galstaun v Adept Underpinner Pty Ltd [2021] NSWCATAD 75

In Galstaun v Adept Underpinner Pty Ltd [2021] NSWCATAD 75, Adept Underpinner Pty Ltd (“Adept Underpinner”), a construction company, was ordered to pay damages of $3,470.40 to Mr John Galstaun, a 61-year-old labourer, for breaching the age discrimination protections of the AD Act.

The New South Wales Civil and Administrative Tribunal (Senior Member Ludlow and General Member Newman) heard that Mr Galstaun had called Mr Leslie McDougall, the sole director of Adept Underpinner, in response to a job advertisement to discuss his suitability for a casual construction worker role.

Mr Galstaun alleged that, during this phone call, Mr McDougall asked Mr Galstaun how old he was, laughed at his age, and stated that Mr Galstaun would have a heart attack and that he was too old for the job before ending their call. Mr Galstaun alleged that this phone call had affected his confidence to undertake further construction work for about six months.

Ultimately, the Tribunal favoured Mr Galstaun’s recollection of events. It found that Adept Underpinning had breached section 49ZYB(1)(b) of the AD Act by unlawfully discriminating against Mr Galstaun during his phone call with Mr McDougall.

The Tribunal awarded damages totaling $3,740.40, comprising $1490.40 for economic loss; $1,500 for non-economic loss; and $750 for aggravated damages.

With respect to each of these heads of damages, the Tribunal observed that:

• the economic loss damages reflected the monies Mr Galstaun would have earned had he not been subjected to the discriminatory language during his phone call with Mr McDougall and consequently suffered a loss of confidence that limited his ability to perform work;
• the non-economic loss damages (or general damages) reflected the hurt, humiliation and distress Mr Galstaun suffered, noting that such award “should not be minimal as this would tend to trivialise or diminish respect for the public policy behind anti-discrimination legislation”; and
• the aggravated damages reflected the derogatory language used in a letter responsive to Mr Galstaun’s age discrimination complaint against Adept Underpinning, in which Mr McDougall, through his legal representatives, alleged that Mr Galstaun’s experience was limited to “part time bits and pieces labouring roles”.

Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2) [2021] FCA 1149

In Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2) [2021] FCA 1149, a labour hire and recruitment company was fined $20,000, and a construction, transport and mining services company was fined $9,000, for refusing to employ a 70-year-old prospective employee because of his age, in contravention of the Fair Work Act 2009 (Cth) (“FW Act”).

The Australian Building and Construction Commissioner commenced proceedings against CoreStaff WA Pty Ltd (“Corestaff”), a labour hire and recruitment company, and Gumala Enterprises Pty Ltd (“Gumala”), a construction, transport and mining services company, in relation to their conduct towards Mr Peter Selsmark, a 70-year-old grader operator, during a hiring process conducted by CoreStaff and Gumala.

In documents produced to the Court, a representative of CoreStaff was found to have stated in an email to Mr Selsmark: “Sorry Peter, no joy with the role at Gumala due to your age mate.”

This followed an earlier email exchange, in which a Gumala representative sent an email to a CoreStaff representative stating: “[W]e had [Mr Selsmark’s] details already, he applied directly with us. He has all the tickets we are looking for however he [sic] age is a concern – 70 years old.”

In those circumstances, the Court found that CoreStaff had contravened section 351(1) of the FW Act, which prohibits an employer from taking adverse against a person because of, among other things, their age. The Court also found that Gumala had “advised, encouraged or incited” CoreStaff’s breach of the FW Act, which itself constituted a contravention pursuant to section 362 of the FW Act.

In imposing fines of $20,000 against CoreStaff and $9,000 against Gumala, the Court also ordered that 50% of such penalties be paid to Mr Selsmark, observing that “[h]e was an innocent party in the circumstances and the target of the discrimination.”

Lessons for employers

Given this recent spate of successful age discrimination claims, employers are advised to:

• ensure they have comprehensive policies and staff training measures in place, to avoid any structural issues or behaviours that may potentially amount to age discrimination towards employees, whether current or prospective;
• understand their obligations to avoid discriminatory practices when introducing changes to an employee’s terms of employment or implementing broader workplace policies and processes; and
• keep comprehensive file notes of all dealings with employees, whether current or prospective.

If you require any assistance with drafting policies or other legal counsel, please do not hesitate to contact us at +61 2 9267 4322.