Jun 27, 2023
In the landmark case, Gutierrez v MUR Shipping Australia Pty Limited (No 2) [2023] FCA 567, Mr Gutierrez was forced to retire when he was 65 years old, despite being able to perform his job duties.
They also found that Mt Gutierrez was asked to train his replacement, even though he had given no formal notice of his retirement. Mr Gutierrez claims he was “treated less favourably than” his replacement.
The Court ruled that he had been treated less favourably because of his age and awarded him $20,000 in damages, which was appealed and heard in June 2023. The appeals judge order ordered the employer to pay general damages of $90,000 as well as an economic loss of $142,000.
Can we end someone’s employment because of age in Australia?
RRegardless of age, team members must have the ability to perform the requirements of the job, including physicality, mental acuity, and skill level. Employers can argue that older employees can no longer meet the physical demands of the job. However, this must be supported by evidence, which can include medical evidence, rather than making an assumption based on age.
Employers cannot move on team members simply because they reach a certain age. We also advise employers that the best practice is to retain skilled employees as long as possible for information retention and diversity. As we know, the workforce in Australia is aging, and currently, recruitment is extremely competitive and the economic environment is challenging. Working to retain your longer serving team members, can be an advantage as they have a wealth of knowledge and experience.
If you need advice or have any questions about team members rights or discrimination, please contact our team on 1800 868 254 or book in for a call.
Guides to help you uncover human resource insights, and make the right changes to improve team delight.
Amelie is our Marketing Lead and currently studying for a B.A. in Business and Visual Arts. She brings her visual arts skills and eye for colour and detail to our graphics and design for the business.
Amelie uses her skills as a digital native in our Marketing team and works across our social media channels. Amelie provides administrative support and assists the recruitment team in finding great candidates.
Sarah joins the team at Total HRM following her time in a regional real estate company, most recently in HR. She brings a solid understanding of the unique dynamics and challenges within small and medium-sized businesses.
Prior to real estate, Sarah worked in the airline industry, providing her with excellent skills in customer service and how to remain calm in a crisis.
Known for her positive energy, Sarah approaches her role with enthusiasm and a genuine desire to support and uplift those she works with. With her experience in HR and recruitment, Sarah is committed to fostering a culture of inclusivity, professional growth, and employee well-being. Her ability to connect with people and create a positive work atmosphere contributes to the overall success of teams and the business as a whole.
Ashly is one of our most experienced HR Business Partners with over 20 years of experience in manufacturing and hospitality, both local and overseas, ranging from large multinational companies to small family-owned operations. Throughout his career, Ashly regularly led teams with over 30 employees while continually growing the business and aligning business strategies with employee capabilities.
Ashly has qualifications in Applied Management and Human Resources and a strong leadership and people management background. Ashly combines his experience with his qualifications to develop great workplace cultures while delivering practical support.
As our Business Services Manager, David keeps everything that is Total HRM ticking along – from overseeing administration and finance functions, liaising with clients and suppliers, to IT troubleshooting and keeping everyone on track to deliver effective customer service to all our clients.
In a business landscape of ‘information overload’, Kim’s pragmatic approach simplifies the ever-changing HR trends and legislation to obtain meaningful and maximum benefits for her clients.
Kim is well known for her ability to understand the ‘real’ issues within businesses and to provide solutions for sustained business growth.
Kim has over 20 years of experience in human resources and 15 years of business consulting experience, and she holds post-graduate Business and Human Resource qualifications.
She has vast and varied experience in senior consulting roles across varying disciplines and HR management positions within retail, manufacturing and professional service sectors.
Linda is the Managing Director of Total HRM and has worked for over twenty five years in business and consulting, including executive and senior management roles. She has worked here and overseas in numerous industries, including mining, energy and government. Her experience in areas such as production, strategic planning, finance, OHS/WHS, and lecturing in Human Resources Management at La Trobe University provides her with a unique blend of business and HR capability.
Linda has led comprehensive organisational restructures and implemented programs to improve the effectiveness of businesses with clear alignment between individuals’ contributions and organisational outcomes. She works with various local boards and executive teams in the region. She is a Certified Professional Member of the Australian Human Resources Institute.