Told to train his replacement at 68, he won more on appeal

Alex Gutierrez had worked for MUR Shipping in Sydney since 2003 and was its chief accountant. He had told the company he planned to retire in September 2019, when he turned 70. In April 2018 the company hired an accountant from its Dubai office into an administrative role, expecting her to take over his job when he retired.

On 19 July 2018, after a board meeting, the managing director told Mr Gutierrez the company wanted to replace his ongoing contract with a fixed-term one and have him train her. He said that was illegal. On 1 August 2018 his lawyers wrote that he treated his employment as over.

At trial, Judge Driver found this was age discrimination under the Age Discrimination Act 2004. His own word on when he would retire was not accepted, and he was “demeaned” by being asked to train his replacement. But the judge held he chose to resign when there was no need to, found only a “mild” adjustment disorder, and awarded $20,000 and an apology.

Mr Gutierrez appealed. Justice Burley found the trial judge had not properly dealt with the unchallenged evidence of a psychiatrist, who said he could not work until his condition resolved. His claim that he had been forced out still failed. But the discrimination was “plainly enough a cause” of his inability to work, so he could recover his lost earnings even though he had resigned.

General damages were raised from $20,000 to $90,000, and in June 2023 the court added $142,215.56 for lost earnings up to his planned retirement, plus interest.