Galstaun v Adept Underpinner Pty Ltd

[2021] NSWCATAD 75

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Galstaun v Adept Underpinner Pty Ltd [2021] NSWCATAD 75

Hearing dates:

21 December 2020

Date of orders:

24 March 2021

Decision date:

24 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member
J Newman, General Member

Decision:

1.   The name of the respondent is amended to Adept Underpinner Pty Ltd.

2. We find that the respondent unlawfully discriminated against the applicant on the ground of age in contravention of s 49ZYB(1)(b) of the Anti-Discrimination Act 1977 during a telephone conversation on 12 November 2019.

3.    Within 28 days of this decision the respondent must pay to the applicant compensation in the sum of $3,740.40.

Catchwords:

HUMAN RIGHTS – discrimination – grounds – age discrimination

HUMAN RIGHTS – discrimination – employment – applicants – determining who should be offered employment

HUMAN RIGHTS – discrimination – damages

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Disability Discrimination Act 1992 (Cth)

Evidence Act 1995 (NSW)

Cases Cited:

Commissioner of Corrective Services v Aldridge [1999] NSWADT 33

Commissioner of Police, NSW Police v Mooney (No 3) (EOD)[2004] NSWADTAP 22

Commonwealth v Evans [2004] FCA 654

Craig-Bennet v Greater Western Area Health Service [2011] NSWADT 30

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Green v Department of Family and Community Services [2013] NSWADT 193

Henville v Walker [2001] HCA 52

I and L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41

IW v the City of Perth [1997] HCA 30

Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145

Parr v University of New England [1999] NSWADT 46

Purvis v State of New South Wales (2003) 217 CLR 92

Whiteoak v State of New South Wales [2014] NSWCATAD 45

Y v Human Rights & Equal Opportunity Commission [2004] FCA 184

Texts Cited:

None cited

Category:

Principal judgment

Parties:

John Galstaun (Applicant)
Adept Underpinner Pty Ltd (Respondent)

Representation:

Counsel:
L Andelman (Applicant)

Solicitors:
153 Phillip Barristers
Respondent (Self-represented)

File Number(s):

2020/00223834

Publication restriction:

None

REASONS FOR DECISION

Nature of the claim

1. The applicant, Mr Galstaun, has worked in the construction industry and related industries. As at 12 November 2019, he was 61 years of age. He alleges that he telephoned the respondent, Adept Underpinner Pty Ltd (Adept) on 12 November 2019 to inquire about a casual construction worker job the company had advertised on the recruitment website Indeed. He alleges that the phone was answered by its director, Mr Leslie McDougall, who asked him how old he was and when Mr Galstaun answered that he was 61, laughed and said he would have a heart attack and he didn’t want that happening on his site, said he was too old and ended the call.

2. Mr Galstaun claims that this call affected his confidence in his ability to undertake construction work and as a result he ceased accepting such work for about six months. He claims that this exchange between himself and Mr McDougall constituted direct discrimination in employment on the ground of age by Adept contrary to s 49ZYA(1)(a) and s 49ZYB(1)(a) and (b) of the Anti-Discrimination Act 1977 (“the ADA”).

3. He claims that the discrimination also caused him to suffer economic loss and non-economic loss as a result. He also claims aggravated and exemplary damages based on the contents of a letter sent in response to the complaint by Adept’s lawyers.

4. Adept denies the conversation took place as described. Instead it responds that Mr McDougall only told Mr Galstaun the tasks involved in the advertised postion, and informed him that in order to apply for the position, Mr Galstaun should submit a resumé via email as the advertisement stated.

Issues to be determined

5. As this is a case of direct discrimination, in order to succeed, Mr Galstaun must establish that:

1. The conversation took place as he described.

2. By the conduct imputed to Adept, Adept treated him less favourably on the ground of his age, age group or characteristic generally imputed to that age or age group, than it would have treated someone of a different age or age group or without that characteristic in the same circumstances.

3. The differential treatment occurred in arrangements the employer made for the purpose of determining who should be offered employment (s 49ZYB(1(a)) or in determining who should be offered employment (s 49ZYB(1 (b)).

Relevant legislation

6. Sections 49ZYA and 49ZYB provide:

“49ZYA What constitutes discrimination on the ground of age

1. A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if the perpetrator—

   (a)   on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or

   (b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

2. For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

3. (Repealed)

49ZYB Discrimination against applicants and employees

1. It is unlawful for an employer to discriminate against a person on the ground of age—

   (a)   in the arrangements the employer makes for the purpose of determining who should be offered employment, or

   (b)   in determining who should be offered employment, or

   (c)   in the terms on which employment is offered.

2. It is unlawful for an employer to discriminate against an employee on the ground of age—

   (a)   in the terms or conditions of employment that are afforded to the employee, or

   (b)   by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

   (c)   by dismissing the employee or subjecting the employee to any other detriment.

3. This section does not apply to employment for the purposes of a private household.

   7. Section 53 provides:

“53 Liability of principals and employers

1. An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

2. If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

3. Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

4. For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.”

   8. Section 108 provides:

“108 Order or other decision of Tribunal

1. In proceedings relating to a complaint, the Tribunal may—

   (a)   dismiss the complaint in whole or in part, or

   (b)   find the complaint substantiated in whole or in part.

2. If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following—

   (a)   except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

   (b)   make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

   (c)   except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

   (d)   order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

   (e)   in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

   (f)   make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

   (g)   decline to take any further action in the matter.

3. An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.

4. The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body.

5. In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.

6. If two or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated in whole or in part, the Tribunal must not make an order or orders for damages that would cause the respondent to pay more than $100,000 in the aggregate in respect of that public act.

7. If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.

Evidence

9. The following facts are not in dispute. The applicant was born on 5 March 1958. The respondent is a corporation and on or about 6 November 2019 it caused an advertisement for a casual construction worker to be placed on a recruitment website “Indeed”. The advertisement read:

“Casual

Jack hammering, wheeling barrows of concrete and dirt, excavating dirt/sand/clay etc; general construction labouring duties.

A good general construction knowledge and common sense is required.

Fit and agile is a necessary requirement.

Must have driving licence and reliable transport.

White Card and Steel Cap boots.

….”

The only way specified in the advertisement to apply for the job was to send an electronic copy of one’s resume via the “Submit” button on the recruitment website. The advertisement did not contain a contact telephone number.

10. Mr Galstaun gave evidence. He stated that he had been employed by a number of labour hire companies that provided labour in the construction industry and gave references from two companies. He stated that he was fit and agile and had the necessary qualifications and equipment specified. He said it was his practice to telephone a potential employer prior to lodging an application, to inquire about the role. He looked up the telephone number for Adept on the internet. He called the number at or around 7.30 pm and spoke to Mr McDougall. He described the conversation which followed:

Mr Galstaun:   Hello I am calling about the advertised position and would like to apply for the job and wanted to know more about the job.

Mr McDougall: How old are you?

Mr Galstaun:   I am 61 years old.

Mr McDougall (burst out laughing and in between his laughter said): I have had young ones run away from the workload. (He laughed some more and then said) You would have a heart attack and I don’t want that on my site. (And he was still laughing when he said) You are too old, cheers mate (and hung up the telephone).

11. Mr Galstaun said he was stunned, very offended and shocked by the conversation. He said that he made a note the following day of the conversation. The note was in evidence and its record of the conversation was as described above.

12. He said that he felt humiliated, ridiculed and diminished and did less construction work than previously for a few months afterwards. He did not apply for the job and lost the confidence to apply for jobs that required physical strength for his two previous employers, MAP Recruitment and Harrison Barratt Group. He would only take on construction work if the employer really needed him. He took other work outside the construction industry which paid less, until 6 months had passed. Then he spoke to two employers about this experience and they assured him that his work was good and that they had never had any negative feedback about him. He started taking on casual construction work again.

13. Mr Galstaun complained to the Anti-Discrimination Board about the incident on 20 November 2019, just over a week later. As part of the complaint process, Adept engaged solicitors to reply on their behalf. Mr Galstaun said he was belittled and degraded by the solicitor’s response to the complaint dated 17 February 2020. The letter stated that Mr McDougall’s recollection of the conversation was that it was short, that Mr Galstaun expressed a preliminary interest in the advertised position, and that the nature and requirements of the position were discussed. It continued:

“To the extent that Mr Galstaun makes assertions, allegations, innuendo and conclusions (including state of mind and subjective conclusions) about this discussion, and/or the events associated with same, they are denied and rejected by Aadept.

…

Aadept requires its labourer position to be filled by an experienced career labourer. Unlike Mr Galstaun, these labourers have not held part time bits and pieces labouring roles.

Aadept is disappointed that Mr Galstaun chose to make this complaint. It is a complaint without substance that AAdept proposes to vigorously defend in any tribunal or court of competent jurisdiction. Mr Galstaun cannot use his age as a shield to deflect from his lack of experience and failure to make an application for the advertised position.”

14. It is noted that there was some confusion about the spelling of the name of the respondent. It was named as Aadept Underpinner Pty Ltd in these proceedings but the registered name of the company of which Mr McDougall is director is Adept Underpinner Pty Ltd. By consent the name of the respondent in the proceedings has been amended.

15. Mr McDougall was the witness for the respondent. He denied the conversation took place as alleged. According to Mr McDougall, Mr Galstaun telephoned and said he was inquiring about the position and what was involved. Mr McDougall replied:

“Wheeling barrows of concrete and excavated material, jack hammering.”

He said he then told Mr Galstaun he was required to submit a resumé via email as advertised on Indeed and ended the call.

He said he made no conclusions as to Mr Galstaun’s suitability as he did not have any information about his experience. Mr McDougall said he had been employing labourers for 40 years and had never had a discrimination complaint. He recruited based on relevant experience. For this job he received 53 email applications. Adept was a small business and he was only recruiting for one labourer at the time.

16. He gave evidence that he was involved in the wording of the advertisement. The advertisement was placed by Adept’s business manager and the applications were also received by her. It was the usual practice for the business manager to cull the applications, create a short list which they discussed and then he created his own short list, called any candidates where he required further information and then selected the successful candidates. He said the same procedure was followed on this occasion. Mr McDougall agreed that Mr Galstaun called him at around 7.30 pm and he was still at work at that time. He said that he had been up since 4.30 am and he “didn’t want to know” and he was “very short”. He said “I told him what I told him and hung up”. He denied laughing.

17. He said he had a very good recollection of the call and what was said. Mr Galstaun was the only person who telephoned about the advertisement. He denied that he had made up his version of what he said later based on what was in the advertisement, although it was similar. He said that he was 59 years of age and did not care what age people were, it was about what experience they had. He did not ask Mr Galstaun about his experience or qualifications; he hung up.

18. When questioned why the solicitors’ letter did not use the words Mr McDougall said he used in the conversation, and why it used the word “innuendo” and other derogatory terms, Mr McDougall said that he gave the solicitors all the information but the solicitor wrote the letter. He said that they were his solicitor’s words but they were “1000% correct” and expressed how absurd Mr McDougall felt this claim was.

19. There is a direct dispute as to which of the two versions of the conversation is correct. The standard to be applied is the civil standard; that is, we must determine whether it is more probable than not that one or the other version is correct. In making our findings of fact we have taken into account the following:

1. Mr Galstaun’s almost contemporary note of the conversation supports his account.

2. The timing of his complaint which was made just over a week after the conversation took place, and without any attempt to apply for the job, indicates that his complaint was connected to the conversation.

3. The demeanour of the two witnesses. Mr Galstaun spoke quietly, slowly and considered before answering. He gave the impression of being more serious and sensitive. He said the conversation “broke” him. Mr McDougall was more abrupt, exhibited frustration and temper at times and used more colourful language. The words attributed to him by Mr Galstaun have the flavour of the kind of language Mr McDougall used when giving evidence.

4. Mr McDougall had been up since 4.30 am the day he took the call at 7.30 pm. He agreed that the conversation was short and he hung up on Mr Galstaun. We can envisage Mr McDougall speaking without due care in those circumstances.

20. Accordingly we find Mr Galstaun’s account of the conversation is more probable.

Whether the conduct came within s 49ZYB(1)(a) and (b)

21. Mr Galstaun contended that the conduct of Mr McDougall during the conversation constituted arrangements made by Adept for determining who should be offered employment (s49ZYB(1)(a)); and determining who should be offered employment (s49ZYB(1)(b)).

22. We have some difficulty in accepting that Mr McDougall’s response to an unsolicited telephone call constitutes “arrangements for determining who should be offered employment” under s 49ZYB(1)(a). It was not disputed that Mr Galstaun telephoned Mr McDougall on his own initiative, after searching for the phone number on the internet, at 7.30 pm, after normal work hours. There was no evidence that Adept had arrangements on how to respond to telephone calls from applicants. The advertisement did not contain a telephone number.

21. We accept that evidence of the conversation could be seen as evidence of the probable nature of other arrangements that were in place in the company which might be applied. However that evidence alone is insufficient, in our view, to establish that such arrangements existed in Adept for determining who would be offered employment which discriminated against all applicants of a certain age.

22. The applicant relied on Commissioner of Corrective Services v Aldridge [1999] NSWADT 33 and Parr v University of New England [1999] NSWADT 46 but the facts in those cases did not resemble the current facts.

23. In Y v Human Rights & Equal Opportunity Commission [2004] FCA 184 the applicant complained of disability discrimination after having been unsuccessful in his application for a job. The applicant sought to characterise the conduct as being discrimination “in the arrangements made for the purpose of determining who should be offered employment” contrary to s 15(1)(a) of the Disability Discrimination Act 1992 (Cth) (the DDA). Finkelstein J rejected the applicant’s argument, likening s 15(1)(a) to s 49D(1)(a) of the ADA (dealing with disability discrimination in employment) which is worded similarly to s 49ZYB(1)(a):

“… the "arrangements" which the employer makes for the purpose of determining who should be employed refers in particular to the circumstance in which the employer will decide who should be offered employment without regard to the particular characteristics of the person involved.

… It is not apt to cover the situation where a particular individual is refused employment, or an interview for employment, because of that person’s particular disability. “

26. The telephone conversation was a situation involving a particular individual. Accordingly the claim under s 49ZYB(1)(a) cannot succeed, in our view.

27. As to whether the words used by Mr McDougall to Mr Galstaun constituted conduct “in determining who should be offered employment” under s49ZYB(1)(b), we were not referred to any cases where a similar factual situation had been considered, and we were unable to locate such a case.

28. In Green v Department of Family and Community Services [2013] NSWADT 193 the Tribunal was considering a claim of disability discrimination in employment under s 49D(1) which is worded similarly to s 49ZYB(1) and said:

“Turning now to the question of whether the respondent's conduct fell within s 49D(1), it can be noted that discriminating against a person on the ground of disability "in determining who should be offered employment " should not be construed narrowly. Offering employment to an applicant for a position and then withdrawing that offer appears to us to be part of the process of determining who should be offered employment in that position. Determining to withdraw and withdrawing an offer of employment previously made is, in substance and for present purposes, no different from determining not to offer the position to the applicant in the first place.” ([113])

29. In Craig-Bennet v Greater Western Area Health Service [2011] NSWADT 30, the Appeal Panel considered a claim of discrimination in employment on the ground of disability. Due to the applicant’s disability she did not hold a drivers licence which was a requirement for the position. The selection panel preferred another candidate. At first instance the Tribunal had determined that there was no determination as to who should be employed as the recruitment process for the position was cancelled. Therefore the relevant section could not apply. On appeal, the Appeal Panel disagreed:

“While we do not have to reach a definite conclusion on this question, we incline, with respect, to the view that this statement of the Tribunal may be based on an erroneous interpretation of section 49D(1)(b). It appears to us that (a) the decision (made on the Respondent's behalf) to include possession of a driving licence as a criterion of selection and (b) the selection panel's decision to treat the Applicant as ineligible by virtue of this stipulation were both made in the course of 'determining who should be offered employment'. The likelihood is that, if within a short period of time the Applicant had not raised objections to her exclusion from consideration, the panel's recommendation would have been approved and an offer of employment would have been communicated to the successful candidate. What the Applicant was deprived of was the opportunity to be considered alongside the other candidates as someone to whom 'employment' in this particular position might be 'offered'. This view of the matter is not affected by the fact that the Respondent, prompted by her objections, decided subsequently that the panel's decision should be 'annulled' and no offer should be communicated to the successful candidate.” ([78])

30. We regard this decision as relevant since Mr McDougall could be said to have treated Mr Galstaun as ineligible because of his age, in telling him that he was “too old”.

31. The ADA is remedial legislation and therefore should be interpreted so as to ensure that the mischief the Act is directed towards will be remedied. As stated in IW v the City of Perth [1997] HCA 30:

“… beneficial and remedial legislation, like the Act, is to be given a liberal construction[12]. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical"[13]. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.”

32. We consider that the correct approach in this case is to interpret the words of the section liberally rather than narrowly so that determining who should be offered employment includes a situation where a prospective applicant is told that he or she is ineligible for a job on a ground prohibited by the ADA. This is consistent with the decision in Craig-Bennet and is not an unreasonable or unnatural construction of the words of the legislation in our view.

Whether this constituted less favourable treatment on the ground of age in employment

33. In his Points of Claim the applicant claimed that Mr Galstaun had been treated less favourably on the ground of his age or age group (being persons in their 60s) and also on the ground of the characteristics pertaining to or generally imputed to that age group of “old age” being weakness, frailty or inability to perform heavy work or likelihood to be injured because of the nature of the work (s 49ZYA(2)). The ADA requires Mr Galstaun to establish that he was treated less favourably than a person in the same material circumstances but not of that age group or characteristics.

34. In a case like this one where there is no actual person to act as a comparator, the ground or grounds on which the applicant was actually treated less favourably must be established. When this is known it can be said whether the hypothetical comparator would have been treated differently (Dutt v Central Coast Area Health Service [2002] NSWADT 133; Purvis v State of New South Wales (2003) 217 CLR 92).

35. Mr McDougall conveyed to Mr Galstaun that he was too old effectively to be considered for the job. This was less favourable treatment as it meant that Mr Galstaun would not be considered if he applied, and discouraged him from applying.

36. It is evident from the words “You’re too old”, and “I have had young ones run away from the workload” that Mr Galstaun’s age or age group was one of the reasons for the less favourable treatment. The words “You would have a heart attack and I don’t want that on my site” indicate that the less favourable treatment was also because of or on the basis of the characteristics of weakness, inability to do physical work and likeliness to be injured.

37. The evidence before the Tribunal that such characteristics are generally imputed to persons of “old age” was limited to evidence given by Mr Galstaun that workers younger than him assumed they were older than he was and found it hard to believe he was 61. Mr McDougall countered this evidence and said he did not have this belief as he was only two years younger.

38. In our view, it is reasonably open to question whether persons in their 60s are generally considered to be in “old age” and are generally believed to be weak, unable to undertake physical work and are likely to injure themselves. This is not a fact of which we are able to take judicial notice and the evidence is insufficient to establish it (s 144 Evidence Act 1995; Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 at [94-104]). Accordingly the applicant has only succeeded in establishing less favourable treatment on the ground of age.

39. As the conduct which breached the ADA was the conduct of Mr McDougall, the sole director of the respondent, who was responsible for determining who would be recruited by the respondent, we are satisfied that it was done by the respondent and it is not necessary to establish vicarious liability (s 53(1) of the ADA).

40. The applicant’s claim is substantiated in part and we find that the respondent unlawfully discriminated against the applicant on the ground of age in contravention of s 49ZYB(1)(b) of the ADA by saying during a telephone conversation on 12 November 2019: “You’re too old” and “I have had young ones run away from the workload”.

The claim for damages

41. The applicant’s claim for damages is in three parts. Under s 108(2)(a) of the ADA the Tribunal may order the respondent to pay damages by way of compensation for any loss or damage suffered by reason of the respondent’s conduct. Some claims for damages may be aligned with remedies recognised by the common law. However the words of the statute, not common law principles, create the criteria for an order of damages (Wotton v Queensland (No.5) (2016) 352 ALR 146 at [1600]. The applicant must establish that the respondent “materially contributed” to the loss. The Tribunal should also consider whether the respondent is legally responsible or to blame for this loss or part of it having regard to the purpose of the statute ( Commissioner of Police, NSW Police v Mooney (No 3) (EOD)[2004] NSWADTAP 22 at [23]-[35], citing Henville v Walker [2001] HCA 52; I and L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 at [1602] per Gleeson CJ).

Economic loss

42. Mr Galstaun seeks damages in compensation for economic loss described by his counsel as loss of an opportunity to earn more income by seeking and taking on construction work, in the amount of $13,510.30. Mr Galstaun stated that for at least 6 months he rarely sought work from his previous employers in the construction industry, and instead took work in other areas which did not require physical strength and which paid less. He says that he did this because he had lost confidence in his ability to undertake physical work and, had he not been impacted by what Mr McDougall said, he would have applied for and been successful for more construction jobs.

43. A statement from Amanda Pearson of MAP Recruitment provided evidence that Mr Galstaun had worked as a construction labourer and was regarded by her as honest, trustworthy and reliable with a good work ethic. A reference from Harrison Barratt Group stated that he was employed as a casual worker and was regarded as reliable and conscientious and a great candidate for future roles.

44. A statement from Andy Hughes, a former recruitment consultant from Harrison Barratt Group, stated that the labour hire company had engaged Mr Galstaun casually to be placed in different jobs in the construction industry. Many of the jobs involved heavy physical work. He recalled that Mr Galstaun sounded “fed up” when telling him about missing out on a job because of his age.

45. The only other independent evidence of how the conversation affected Mr Galstaun is contained in his bank statements. These indicate that he had no payments from employers in the construction industry between January and August 2020. In September 2020 he started receiving payments from such employers again.

46. Adept submitted that Mr Galstaun’s claim should not be accepted and there was insufficient evidence to show how many offers of work he could have received. He had worked for other employers in the following period and his loss if any was minimal. The advertised job was casual and the most he could be compensated for would be the loss of one casual shift.

47. On the basis of the evidence above we accept that it is more probable than not that Mr Galstaun did not actively seek construction work for some time after the conversation. In light of the evidence we are satisfied that Adept’s unlawful conduct materially contributed to this. As to whether Adept should be held legally responsible, we accept that the call was unsolicited, we accept that it was well after working hours and Mr McDougall had been up since early in the morning. Nevertheless the remarks were made in the context of inquiries about employment, they were therefore unlawful, and therefore Adept should be held legally responsible for the loss of opportunity.

48. The next step is to quantify that loss. Mr Galstaun claimed he worked 5 days a week on average prior to the incident and that he could have worked 34 hours a week in the construction industry after the incident. He calculated the difference in the hourly rate at $8.28. This appears correct from the evidence available. He also claimed loss of overtime at 4 shifts per week and a meal allowance.

49. The available evidence (which consisted of amounts paid rather than records of hours worked) does not substantiate that he worked 5 days a week for construction industry employers prior to the incident, as his bank statements indicate his work was casual and irregular, and he was also receiving a Newstart allowance (later a JobSeeker allowance). It was not clear how much overtime he had or could have earned.

50. In the period prior to the telephone conversation Mr Galstaun received the following payments from the two employers he identified as allocating him construction work:

August 2019       $225

September 2019    $743

October 2019    $167.58

November 2019    $1331.79

51. Although the amount increased in November 2019, the records do not suggest that he could have regularly received 34 hours work per week in the construction industry immediately following 12 November 2019. In addition, it is required that an applicant show how they have mitigated their damages (Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102). Mr Galstaun took other forms of work which mitigated his loss and his bank statements show that in the months following the incident his income was often higher than it had been in the preceding months. When he did eventually take on construction work, however, in October 2020, his income was substantially higher than any of the preceding months since the incident.

52. Mr Galstaun also chose not to undertake the construction work due to his lack of confidence; the work was available had he chosen to apply for it. In the absence of psychological evidence showing an actual inability to do so, in our view the respondent should not be liable for any economic loss over a period of more than three months.

53. It is difficult to quantify the loss in these circumstances. The factors to consider in a claim of lost opportunity were stated in Whiteoak v State of New South Wales [2014] NSWCATAD 45 at [264]:

“(j) Damages which involve consideration of future possibilities and past hypothetical facts need to be assessed according to "the degree of probability that an event would have occurred, or might occur". The award of damages is to be adjusted to reflect the degree of probability: La Trobe at [86] referring to Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; 120 ALR 16 at [335].

(k) Where the loss is a lost opportunity to acquire a benefit the plaintiff bears the onus of establishing that the loss was caused by the conduct of the defendant and discharges that onus by establishing a chain of causation that continues up to the point where there is a substantial prospect of acquiring the benefit sought by the plaintiff: La Trobe at [87].

(l) Having reached the point that a loss is established its value must be estimated. This must be done no matter how difficult the task even if some guess work is involved: La Trobe at [90].

(m) Whilst the issue of loss caused by a defendant's conduct must be established on the balance of probabilities, hypotheses and possibilities, the fulfilment of which cannot be proved, must be evaluated to determine the amount or value of the loss suffered. Proof on the balance of probabilities has no part to play in the evaluation of such hypotheses or possibilities. Evaluation is a matter of informed estimation: La Trobe at [87].”

54. Based on the available evidence, we consider that had the conversation not occurred, there was not a high degree of probability of Mr Galstaun achieving 34 hours work per week work in the construction industry and earning $8.28 per hour more on a regular basis between November 2019 and October 2020 including some overtime shifts. Moreover, as it was casual work the amount of work would have been variable. We consider it probable that had the conversation not occurred he would have achieved on average in the region of 15 hours per week construction work.

55. Therefore in our view it is just and equitable to compensate him for the loss of the difference between his usual rate of pay in the construction industry and the rate paid by Envirobank as follows:

15 hours x $8.28 / hour = $124.20 per week economic loss

$124.20 x 12 weeks = $1490.40 total economic loss.

Non-economic loss

56. The evidence for hurt, humiliation and distress consists of Mr Galstaun’s evidence and the evidence of Mr Hughes. We are satisfied that he felt humiliated and distressed as a result of the words used by Mr McDougall.

57. Damages for non-economic loss should not be minimal as this would tend to trivialise or diminish respect for the public policy behind anti-discrimination legislation: Commonwealth v Evans [2004] FCA 654 at [32]].

58. In considering damages we have taken into account that this was a very short conversation over the telephone and the words may have been said carelessly. This is not a case of prolonged discriminatory conduct.

59. We award the sum of $1500 for non-economic loss.

Aggravated and exemplary damages

60. The purpose of exemplary damages is to punish the wrongdoer and deter repetition of the wrongdoing. (Chris Ronalds and Elizabeth Raper, Discrimination Law and Practice, 4^th edn, Federation Press, 2012, 213-14). As exemplary damages are not compensatory, s 108 does not permit them to be ordered.

61. Aggravated damages may be awarded when the respondent’s conduct after the complaint and up to the time of the hearing added to the applicant’s distress and hurt. The letter to the Board from Adept’s solicitors used derogatory language about Mr Galstaun and his complaint, suggesting that the complaint was “innuendo”, that he lacked experience and had only held “part time bits and pieces labouring roles”. Mr Galstaun was evidently offended by this language, and this characterisation of his work history, which was not necessary in order to respond to the complaint. We accept that this letter added to Mr Galstaun’s hurt and distress. Mr McDougall said that he gave all the information to the solicitor but the solicitor used his own words. However Mr McDOugall is a director of Adept and he endorsed what was said in the solicitors’ letter at the hearing.

62. We award $750 aggravated damages.

Other orders

63. The applicant also sought a published apology and that Adept develop and implement a program or policy aimed at eliminating unlawful discrimination in the workplace.

64. On the available evidence, we are not satisfied that an apology would serve any purpose. Due to the lack of evidence about Adept’s internal policies we have decided not to make any orders affecting those policies.

Orders

65. The name of the respondent is amended to Adept Underpinner Pty Ltd.

66. We find that the respondent unlawfully discriminated against the applicant on the ground of age in contravention of s 49ZYB(1)(b) of the Anti-Discrimination Act 1977 during a telephone conversation on 12 November 2019.

67. Within 28 days of this decision the respondent must pay to the applicant compensation in the sum of $3,740.40.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 March 2021