Gutierrez v Mur Shipping Australia Pty Limited - [2021] FedCFamC2G 56

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gutierrez v MUR Shipping Australia Pty Limited [2021] FedCFamC2G 56

File number(s): SYG 2845 of 2019

Judgment of: JUDGE DRIVER

Date of judgment: 1 December 2021

Catchwords:
HUMAN RIGHTS – Age discrimination – whether applicant was treated less favourably in his employment because of his age, whether the contract of employment was breached and whether his position was made redundant considered – discrimination established – no breach of contract and no redundancy established

EMPLOYMENT LAW – Fair Work – claim for redundancy benefits and penalty dismissed

Legislation:
Age Discrimination Act 2004 (Cth) ss 14, 15, 18

Australian Human Rights Commission Act 1986 (Cth) ss 46PD, 46PF, 46PH, 46PO

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 211

Fair Work Act 2009 (Cth) ss 117, 119, 546

Cases cited:
Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560

Buittendag v Ravensthorpe Nickel Operations Pty Limited [2012] WASC 425

Chen v Monash University [2016] FCAFC 66

Coles Supermarkets Australia Pty Limited v Fardous [2015] NSWCA 82

Dibb v Commissioner of Taxation (2004) 136 FCR 388

Evans v Ikkos Holdings Pty Ltd [2019] SAET 222

Ewin v Vergara [2014] FCAFC 100

Fetherston v Peninsula Health [2004] FCA 485

Gama v Qantas Airways Limited (No 2) [2006] FMCA 1767

Haider v Hawaiian Punch Pty Limited [2015] FCA 37

Hem v Cant (2007) 159 IR 113

Hill v Hughes (2019) 287 IR 86

Hughes v Hill [2020] FCAFC 126

Jones v Department of Energy and Minerals (1995) 60 IR 304

Kerkofs v Abdallah [2019] VCAT 259

Koutalis v Pollett [2015] FCA 1165

McDonald v Parnell Laboratories (Aust) Pty Ltd(2007) 168 IR 375

Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618

Nationwide News Pty Limited v Naidu (2007) 71 NSWLR 471

Orchard v Higgins [2020] TASADT 11

PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225

Poniatowska v Hickinbotham [2009] FCA 680

Power v Robot Trading Company Pty Limited [2013] FCCA 21

Qantas Airways Limited v Gama (2008) 167 FCR 537

Ramos v Good Samaritan Industries [2013] FCA 30

Re Kilcran [2014] FCAFC 6

Re Termination, Change and Redundancy Case (1984) 8 IR 34

Reurich v Club Jervis Bay Ltd [2018] FCA 1220

Richardson v Oracle Corporation Australia Pty Limited (2014) 223 FCR 334

Richardson v Oracle Corporation Australia Pty Limited (2018) 232 IR 31

Suridge v Boral Window Systems Pty Ltd [2012] FWA 3126

The Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64

Thompson v Big Bert Pty Ltd trading as Charles Hotel (2007) 168 IR 309

Thomson v Orica Australia Pty Ltd (2002) 116 IR 186

Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32

Watts v Australian Postal Corporation (2014) 222 FCR 220

Wotton v State of Queensland (No 5) [2016] FCA 1457

Wotton v State of Queensland (No 6) [2017] FCA 245

Division: Division 2 General Federal Law

Number of paragraphs: 179

Dates of hearing: 3-5 May, 9, 11 June 2021

Place: Sydney

Counsel for the Applicant: Ms K Edwards

Solicitor for the Applicant: HNT Legal

Counsel for the Respondent: Mr A Gotting

Solicitor for the Respondent: Kingston Reid
ORDERS

SYG 2845 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ALEX GUTIERREZ

Applicant

AND:
MUR SHIPPING AUSTRALIA PTY LIMITED

Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

1 DECEMBER 2021

THE COURT ORDERS THAT:
1.The Court declares that the respondent committed unlawful discrimination against the applicant contrary to s 14 and s 18(2)(a) and (d) of the Age Discrimination Act 2004 (Cth).
2.Pursuant to s 46PO(4)(b) of the Australian Human Rights Commission Act 1986 (Cth) the respondent shall issue an apology to the applicant in terms to be agreed between the parties or, in the absence of agreement, in terms stipulated by the Court.
3.Pursuant to s 46PO(4)(d) the respondent shall pay to the applicant general damages of $20,000.
4.The respondent shall pay interest up to judgment in accordance with s 211(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Court of Australia Interest on Judgements Practice Note issued on 18 September 2017.
5.The application filed on 1 November 2019 and as amended on 12 May 2021 is otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND

By an application filed on 1 November 2019 and a statement of claim filed on the same day, the applicant (Mr Gutierrez) claims damages and other relief from the respondent, MUR Shipping Australia Pty Limited (MUR Shipping), for alleged breaches of the Age Discrimination Act 2004 (Cth) (ADA) in the course of his employment. Mr Gutierrez seeks declarations that MUR Shipping committed unlawful discrimination against him contrary to one or more of ss 14, 15 and 18 of the ADA, an order under s 46PO(4)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA) for an apology from MUR Shipping and an order under s 46PO(4)(d) of the AHRCA directing MUR Shipping to pay damages compensating him for his economic and non economic loss.
Mr Gutierrez also seeks orders in the accrued jurisdiction of the Court that MUR Shipping breached his employment contract giving rise to a claim for damages for breach of contract.
The application is opposed by MUR Shipping which filed a defence on 23 December 2019. MUR Shipping denies any age discrimination or breach of contract. This is on the basis that Mr Gutierrez resigned his employment well in advance of his retirement date and in the face of an offer of continuing employment that would have extended beyond that retirement date.
The statement of claim was amended on 12 May 2021 which, apart from minor factual amendments, adds a claim for redundancy benefits under the Fair Work Act 2009 (Cth) (Fair Work Act) and also adds a claim for a penalty under that Act.
An amended defence was filed on 2 June 2021. The amended defence denies any redundancy.
The following statement of background facts relating to this matter is derived from the submissions of the parties.
Mr Gutierrez was born on 5 September 1949.[1]
[1] see Amended Statement of Claim (ASOC), [5]; Amended Defence, [5]; Mr Gutierrez’s first affidavit, made on 3 December 2020, [3] (Court Book (CB): 29).
On 15 June 1993, Mr Gutierrez commenced employment with Scottish Shipowners and Managers (SSOM).[2]
[2] see Amended Defence, [6]; clause 3 of contract of employment dated 1 August 2003, Mr Gutierrez’s first affidavit, Annexure AG-1 (CB: 105); see also Mr Gutierrez’s first affidavit, [7], [8] (CB: 30); Mr Gutierrez’s second affidavit, made on 1 April 2021, [24] (CB: 42); Mr Gutierrez’s Cross Examination (3 May 2021 (T56.06))
In 2000, V Ships Commercial Pty Limited bought some of the business of SSOM.[3]
[3] see Mr Getty’s affidavit, made on 19 February 2021, [7] (CB: 54); Mr Getty’s Cross Examination (4 May 2021 (T103.12 – T103.14)); see also Amended Defence, [6]; Mr Gutierrez’s first affidavit, [10] (CB: 30).
In 2000, Mr Gutierrez continued employment with V Ships Commercial Pty Limited.[4]
[4] see Amended Defence, [8(a)]; see also Mr Gutierrez’s first affidavit, annexure AG1, page 1, first paragraph (CB: 105).
On 1 August 2003, Mr Gutierrez commenced employment with MUR Shipping.[5]
[5] then known as SSM Australia Pty Limited; see ASOC, [7], [8(a)], [9A]; Amended Defence, [7], [8(a)]; Mr Gutierrez’s first affidavit, annexure AG1, page 1, first paragraph (CB: 105); Mr Gutierrez’s Cross Examination (3 May 2021 (T57.16)).
On 13 February 2004, Mr Gutierrez signed an employment contract with MUR Shipping.[6]
[6] see Mr Gutierrez’s first affidavit, [13]; Mr Gutierrez’s first affidavit, annexure AG1, page 5 (CB: 109); Mr Gutierrez’s Cross Examination (3 May 2021 (T57.23)).
In February 2018, Mr Gutierrez had discussions with Mr Brian Getty, then Managing Director of MUR Shipping. The substance of the discussion is disputed in part.[7]
[7] see ASOC, [16(a)]; Amended Defence, [16]; Mr Gutierrez’s first affidavit, [25] (CB: 32-33); Mr Getty’s affidavit, [21], [23] (CB: 55-56); Mr Gutierrez’s Cross Examination (3 May 2021 (T61.42 – T64.23)).
In March 2018, Mr Gutierrez had discussions with Mr Getty concerning Ms Dorin Fernandes, an employee working in MUR Shipping’s office in Dubai, commencing as an employee of MUR Shipping.[8]
[8] see ASOC, [16(b)]; Amended Defence, [16]; Mr Gutierrez’s first affidavit, [27]-[32] (CB: 33-34); Mr Getty’s affidavit, [25], [32] (CB: 57, 58).
On 9 April 2018, MUR Shipping offered Ms Fernandes employment in the position of Administration Officer.[9]
[9] Mr Getty’s affidavit, Annexures BG-1 and BG-2 (CB: 129, 130).
On 23 April 2018, Ms Fernandes commenced employment with MUR Shipping.[10]
[10] see Mr Getty’s affidavit, [36] (CB: 58); Mr Smith’s Cross Examination (4 May 2021 (T152.42)).
On 18 July 2018, the Board of MUR Shipping held a meeting. During the meeting, Mr Guttierrez’s employment was discussed.[11]
[11] see Mr Getty’s affidavit, [38]-[39] (CB: 59); Mr Smith’s affidavit, [20] (CB: 68); see also Mr Gutierrez’s first affidavit, [35] (CB: 35).
During the meeting on 18 July 2018, the Board of MUR Shipping discussed offering Mr Gutierrez an annual contract.[12]
[12] see Mr Getty’s affidavit, [41] (CB: 59); Mr Smith’s affidavit, [19]-[21] (CB: 68).
During the board meeting, Mr Muirhead, the CEO of MUR Shipping, proposed that Mr Jason Smith of MUR Shipping discuss the annual contract with Mr Gutierrez.[13]
[13] see Mr Getty’s affidavit, [41] (CB: 59); Mr Smith’s affidavit, [21] (CB: 68).
On 19 July 2018, Mr Gutierrez discussed with Mr Smith an annual contract.[14]
[14] see Mr Smith’s affidavit, [24] (CB: 69); Mr Gutierrez’s first affidavit, [35] (CB: 35); Mr Gutierrez’s Cross Examination (3 May 2021, T82.13 – T82.14)).
On 20 July 2018, Mr Gutierrez attended work in the North Sydney office.[15] On 23 July 2018, Mr Gutierrez took a day of annual leave.[16] On 24 July 2018, Mr Gutierrez attended work in the North Sydney office.[17]
[15] see Mr Smith’s affidavit, [30] (CB: 70); Mr Gutierrez’s Cross Examination (3 May 2021 (T80.18 – T80.19)).
[16] see Mr Smith’s affidavit, [34] (CB: 70); Mr Gutierrez’s Cross Examination (3 May 2021 (T80.23 – T87.25)).
[17] see Mr Gutierrez’s second affidavit, [12] (CB: 41); Mr Gutierrez’s Cross Examination (3 May 2021 (T80.27 – T87.29)).
On 24 July 2018, Mr Gutierrez sent an email to Mr Smith relating to Mr Gutierrez’s employment.[18] On 25 July 2018, Mr Gutierrez attended work in the North Sydney office.[19]
[18] see Mr Gutierrez’s first affidavit, annexure AG5 (CB: 146); Mr Gutierrez’s Cross Examination (3 May 2021 (T72.42)).
[19] see Mr Gutierrez’s second affidavit, [13] (CB: 41); Mr Gutierrez’s Cross Examination (3 May 2021 (T80.31))
On 25 July 2018, Mr Smith sent an email to Mr Gutierrez apparently in reply to Mr Gutierrez’s email.[20] That day at 2.00pm, Mr Gutierrez left work and saw his general practitioner.[21] The significance of these matters is discussed below.
[20] see Mr Gutierrez’s first affidavit, annexure AG6 (CB: 147).
[21] see Mr Gutierrez’s second affidavit, [13] (CB: 41).
On 27 July 2018, Mr Smith sent an email to Mr Gutierrez regarding Mr Smith’s earlier email and Mr Gutierrez feeling unwell on 25 July 2018.[22]
[22] see Mr Smith’s affidavit, [40] and annexure JRS-3 (CB: 72, 149); Mr Smith’s Re-Examination (5 May 2021 (T246.31 – T246.44)).
On 1 August 2018, the solicitors for Mr Gutierrez sent a letter to MUR Shipping claiming repudiation of the contract of employment, accepting the claimed repudiation and claiming constructive dismissal.[23]
[23] see Mr Gutierrez’s first affidavit, annexure AG7 (CB: 151-153).
On 27 August 2018, the solicitors for Mr Gutierrez lodged a complaint of unlawful discrimination with the Australian Human Rights Commission (AHRC) (Complaint).[24]
[24] see Mr Gutierrez’s first affidavit, annexure AG9 (CB: 218).
On 14 September 2018, the former solicitors for MUR Shipping sent a letter to the solicitors for Mr Gutierrez in relation to the Complaint.[25]
[25] see Mr Gutierrez’s first affidavit, annexure AG10 (CB: 225).
On 7 May 2019, Mr Gutierrez attended a medical examination with Dr Robert Kaplan, psychiatrist.[26]
[26] see Dr Kaplan’s affidavit made on 12 December 2020, [3] (CB: 50).
During the consultation on 7 May 2019, Mr Gutierrez informed Dr Kaplan:
(a)he intended to retire in September 2019;[27]
(b)he was informed at a meeting that the Board had met and the intention was to terminate him in December 2018;[28]
(c)he objected to the intended termination on the basis it was “illegal”;[29] and
(d)he had commenced proceedings but had been informed that he only had a 65 per cent chance of success.[30]
[27] see Dr Kaplan’s affidavit, annexure RMK2, page 2 and page 5 (CB: 250, 253); Dr Kaplan’s affidavit, annexure RMK4, page 2 and page 5 (CB: 259, 262); Dr Kaplan’s Notes (Exhibit R3), page 2; Mr Gutierrez’s Cross Examination (3 May 2021 (T86.28 – T86.30)).
[28] see Dr Kaplan’s affidavit, annexure RMK2, page 2 (CB: 250); Dr Kaplan’s affidavit, annexure RMK4, page 2 (CB: 259); Dr Kaplan’s Notes (Exhibit R3), page 1.
[29] see Dr Kaplan’s affidavit, annexure RMK2, page 2 (CB: 250); Dr Kaplan’s affidavit, annexure RMK4, page 2 (CB: 259); Dr Kaplan’s Notes (Exhibit R3), page 2.
[30] see Dr Kaplan’s affidavit, annexure RMK2, page 2 (CB: 250); Dr Kaplan’s affidavit, annexure RMK4, page 2 (CB: 259); Dr Kaplan’s Notes (Exhibit R3), page 2. The matter proceeded on the basis that any privilege in the advice had been waived.
THE EVIDENCE AND SUBMISSIONS
Mr Gutierrez relies upon two affidavits made by him on 3 December 2020 and 1 April 2021. Mr Gutierrez was cross-examined on his affidavits. I also received the affidavit of Mr Gutierrez’s wife, Aida Gutierrez made on 3 December 2020 and the affidavit of Robert M Kaplan made on 17 December 2020, to which are annexed letters of instruction, a medico-legal report and a revised version of the report.
MUR Shipping relies upon the affidavit of Brian Getty made on 19 February 2021 and the affidavit of Jason Smith made on the same day. Both were cross-examined on their affidavits.
The parties filed pre-hearing written submissions and also made oral submissions at the trial which was conducted over four days on 3, 4 and 5 May and on 9 and 11 June 2021. All documents to be relied upon were provided in the form of a Court Book.
At the trial I received the following exhibits:
·Exhibit A1 – email from Mr Getty to Mr Muirhead 06/04/2018;
·Exhibit R1 – record of electronic access events;
·Exhibit R2 – extract from the Diagnostic and Statistical Manual of Mental Disorders, 5^th ed;
·Exhibit R3 – handwritten notes prepared by Dr Kaplan of his consultation with Mr Gutierrez on 07/05/2019;
·Exhibit R4 – email correspondence between parties’ solicitors, 29/04/2021.
The parties also provided post hearing written submissions[31] which deal with the assessment of the evidence at trial as well as the pleadings which were amended during the course of the trial.
CONSIDERATION
[31] which apparently have not been filed.
Mr Gutierrez’s contentions
Mr Gutierrez had been a long serving faithful employee, working for MUR Shipping since 1993. He became entitled to receive bonuses from around 2004 and was paid bonuses of:
(a)$7,739 for the year ending 31 December 2014;[32]
(b)$8,000 for the year ending 31 December 2015;[33]
(c)nothing for 2016, which was a bad year;[34] and
(d)$2,467.89 year ending 31 December 2017.[35]
[32] Mr Gutierrez’s first affidavit: [19].
[33] Mr Gutierrez’s first affidavit: [20].
[34] Mr Gutierrez’s first affidavit: [21].
[35] Mr Gutierrez’s first affidavit: [22].
Mr Gutierrez submits that he intended to work until he was at least 75 years of age and made it clear to MUR Shipping it was his intention to work as long as possible[36]. MUR Shipping never raised any performance issues with him prior to Mr Gutierrez making a complaint of age discrimination to the AHRC in August 2018.[37]
[36] Mr Gutierrez’s first affidavit: [23]-[24].
[37] Complaint to the AHRC dated 27 August 2018 (Complaint), attached to Notice of Termination dated 18 September 2019 (NoT) and both attached to the Application filed in these proceedings. Mr Gutierrez’s first affidavit: [16].
Mr Gutierrez contends that, in around February 2018, Mr Brian Getty (the then Managing Director of MUR Shipping) told him the company had a retirement age of sixty-five and asked Mr Gutierrez to tell him when he would retire. Mr Gutierrez told him there was no mandatory retirement age in Australia (except in certain professions) and making people retire based on their age was unlawful. Mr Gutierrez told Mr Getty he would give Mr Getty three months’ notice of his retirement[38]. In early March 2018, Mr Getty told Mr Gutierrez a Ms Fernandes from MUR Shipping’s affiliated office in Dubai was “coming to visit Sydney”. [39] A short time later Mr Gutierrez was part of a conversation with Mr Getty, Mr Smith and Ms Fernandes in which he was asked to explain to her what he did without any further explanation.[40] Later in that same month of March 2018, he was told that Ms Fernandes would take over from him,[41] even though he had not given any firm date for his retirement. He was not asked for his view on whether she was an appropriate person to replace him and was not involved in any interview MUR Shipping may have conducted.[42] At this stage Mr Gutierrez told Mr Getty that he did not understand why they were looking to engage someone to replace him when he had not yet retired, at which time Mr Getty said, “I know you have a retirement unit in Manila” and Mr Gutierrez felt compelled to give a date, being July 2019.[43]
[38] Mr Gutierrez’s first affidavit: [25].
[39] Mr Gutierrez’s first affidavit: [27].
[40] Mr Gutierrez’s first affidavit: [28].
[41] Mr Gutierrez’s first affidavit: [30].
[42] Mr Gutierrez’s first affidavit: [29].
[43] Mr Gutierrez’s first affidavit: [30].
Mr Gutierrez contends that then, in April 2018, he was told that Ms Fernandes was to start work that month, some 15 months before Mr Gutierrez said he was going to retire.[44] In May or June 2018, Mr Gutierrez sought special leave to take paid time off to update his skills. At that time, he told Mr Jason Smith (who replaced Mr Getty as Managing Director in July 2018) that he was educating himself further so as to continue working after MUR Shipping kicked him out. Mr Smith said MUR Shipping was not trying to kick him out, but had no answer as to why Mr Gutierrez’s retirement had become urgent at the same time as it had decided to employ Ms Fernandes as his replacement before he had retired.[45]
[44] Mr Gutierrez’s first affidavit: [31].
[45] Mr Gutierrez’s first affidavit: [33].
Mr Gutierrez submits that in July 2018, he was told by Mr Smith that his old contract would come to an end on 31 December 2018 and he would be on a new contract to train Ms Fernandes from 1 January 2019. Mr Gutierrez told Mr Smith that what he was doing was illegal and left the meeting in distress.[46] Mr Gutierrez sent an email confirming what occurred during that discussion on 24 July 2018.[47] It is said that the importance of this email cannot be understated, because at no time until Mr Gutierrez filed his evidence in these proceedings did anyone say to Mr Gutierrez that he was wrong to characterise what he had been told in any way other than what he set out in this email, which is reproduced below:[48]
[46] Mr Gutierrez’s first affidavit: [35]-[36].
[47] Mr Gutierrez’s first affidavit: [37].
[48] Mr Gutierrez’s first affidavit: [38], AG-5.
From: Alex Gutierrez
Sent: Tuesday, 24 July 2018 10:52 AM
To: Jason Smith [redacted]
Subject: notice of termination
I am still waiting for your written confirmation that I requested after our meeting at your office last Thursday, July 19th at 8.45 am. In that meeting you told me of the following:
1.The board of directors had a meeting on Wednesday, July 18th at the Sydney office.
2. Wanda Langenfeld Harris informed the board that beside myself, Mur has no employees over the age of 65.
3.The Board has decided to terminate my employment as Chief Accountant at December 31, 2018.
4.I will be on contract from January 1, 2019 whereby I will train and turnover my duties to Dorin Fernandes.
When asked if there was a redundancy money involved, you answered in the negative as the position of Chief Accountant is not being made redundant because Dorin Fernandes is taking over.
brgrds

Mr Gutierrez contends that at no time after sending this email did Mr Smith, nor anyone else, tell him that he was wrong:
(a)in considering his employment was scheduled to end on 31 December 2018;
(b)in understanding that he would be a contractor rather than an employee on a fixed term contract;
(c)to think the decision was based on a view he should retire because he was over 65; and
(d)to understand he was being offered a further contract to train Ms Fernandes to take over his position.
Instead of Mr Smith disabusing Mr Gutierrez of matters he now asserts were wrong immediately, he simply replied that he would take it up with the board[49]. Mr Gutierrez submits that if MUR Shipping was in fact open to having Mr Gutierrez continue to work for as long as he wished to do so, they could have said so, but they never did. In this context, the version of events now asserted by MUR Shipping “beggars belief” and the evidence of Mr Smith and Mr Getty cannot be believed. In particular, it is a fact in issue exactly what Ms Fernandes was told when she was employed in Sydney and MUR Shipping has not put on any evidence whatsoever from her. In that context, Mr Gutierrez says a Jones v Dunkel inference arises.
[49] Mr Gutierrez’s first affidavit: [38], AG-6.
The actions of MUR Shipping in advising Mr Gutierrez that it would bring his ongoing employment to an end in December 2018 is said to have been clearly a repudiation of his contract, as noted by his instructing solicitor’s letter dated 1 August 2018[50]. From the date of the discussion on 19 July 2018, Mr Gutierrez’s health is said to have deteriorated rapidly[51] and he was told to take some time off given the stress reaction it had caused[52]. Mr Gutierrez submits that if MUR Shipping had taken any step to welcome him back into the fold at this point, these proceedings would likely not be on foot today. However, they did not, and the response to Mr Gutierrez’s letter was precisely nothing, causing Mr Gutierrez to file a complaint with the AHRC[53].
[50] Mr Gutierrez’s first affidavit: [40], AG-7.
[51] Mr Gutierrez’s first affidavit: [42].
[52] Mr Gutierrez’s first affidavit: [43], AG-8.
[53] Mr Gutierrez’s first affidavit: [50], AG-9.
Legislation and case law
Mr Gutierrez relies on ss 18(2)(a),(b), (c) and (d) of the ADA and ss 14 and 15 of the ADA.
Specifically in relation to s 18, Mr Gutierrez makes the following submissions.
MUR Shipping asserted it would change the terms and conditions of Mr Gutierrez’s employment from full-time in the position of Chief Accountant to a fixed term training Ms Fernandes to take over the position within the meaning of s 18(2)(a) of the ADA.
MUR Shipping is also said to have denied Mr Gutierrez access to and/or limited his access to, opportunities or benefits associated with employment within the meaning of s 18(2)(b) of the ADA, including the benefit of:
(a)deciding when he would retire of his own volition; and/or
(b)continuing to accrue entitlements such as long service leave and annual leave as long as he remained employed.
MUR Shipping is said to have dismissed Mr Gutierrez within the meaning of s 18(2)(c) of the ADA either by express terms and the effluxion of time, or by repudiating his contract when it gave unilateral notice.
MUR Shipping is also said to have subjected Mr Gutierrez to detriments within the meaning of s 18(2)(d) of the ADA when it:
(a)placed Mr Gutierrez under pressure to resign earlier than he intended;
(b)treated his indication of when he may consider retirement as notice when he never provided formal notice of his intention to retire; and
(c)directed him to train his replacement before he had given any formal notice of his intention to retire.
If the Court is satisfied that the claim falls within the above provisions of s 18, being discrimination in employment, the Court must then assess this claim by reference to the tests for direct and indirect discrimination (being ss 14 and 15 respectively).
In relation to s 14, Mr Gutierrez relies on the pleadings at [29] and [32] of the Amended Statement of Claim (ASOC) and says Mr Gutierrez’s evidence clearly supports the pleadings. In order to establish direct discrimination, Mr Gutierrez must prove:
(a)less favourable treatment; and
(b)that the less favourable treatment was because of:
(i)his age or characteristics that are generally imputed to someone his age including:
(ii)he should be retired; and/or
(iii)he was not competent to keep working; and
(c)that those who were not his age would have been treated better in circumstances the same or not materially different.
It is said to be clear from the evidence that Mr Gutierrez has suffered less favourable treatment as MUR Shipping decided to bring his employment to an end, and the offer of ongoing employment was on lesser terms either because it was as a contractor or as a fixed term employee. His autonomy in being able to identify when he would retire was taken away. MUR Shipping’s actions in later alleging poor performance are said to have been indicative that MUR Shipping considered he was past his “use by date” and not competent to continue working. In terms of a comparator, it is important to identify the relevant circumstances. As Mortimer J stated in Watts v Australian Postal Corporation,[54] concerning similar provisions under the Disability Discrimination Act 1992 (Cth):[55]
… the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the “real reason” for the person’s treatment more readily emerges.
[54] 222 FCR 220.
[55] At 277 [242]-[243].
In this case, it is said to be quite clear that a person who was not close to retirement age but had indicated they would not always stay with the company, or would leave at some as yet unidentified time in the future, would not have been treated the same way whatsoever. Indeed, there is no evidence from MUR Shipping that a person under 65 was also placed on a fixed term contract where they indicated they were going to leave employment at some time in the future.
Mr Gutierrez also relies on [33]-[36] of the ASOC in relation to s 15 of the ADA and says MUR Shipping clearly engaged in unlawful indirect discrimination because it:
(a)clearly imposed the condition or requirement that Mr Gutierrez retire because he was over 65;
(b)was not reasonable (as no defence has been pleaded as required by s 15(2) of the ADA); and
(c)clearly disadvantaged people of Mr Gutierrez’s age.
Contract
There are two sources of the right to terminate a contract of employment[56]:
(a)express rights under contract or statute; and
(b)implied rights conferred by common law to terminate for serious breach or repudiation.
[56] See discussion in Irving, M.; The Contract of Employment (2^nd Ed); Butterworths (Australia): 2019: 792 (Chapter 13).
There is said to be no doubt that unilateral changes to Mr Gutierrez’s employment were made by MUR Shipping in July 2018. Those changes were significant and included taking away Mr Gutierrez’s right to determine when he would retire by changing his status from permanent full-time to contractor or fixed term employee. That breach is said to have been significant and was sufficiently serious to amount to a repudiation, which Mr Gutierrez accepted.
In this context, courts have determined damages by reference to the principles that a party to a contract is entitled to terminate any contract in a manner “least burdensome” to it and in accordance with the terms of the contract.[57]
[57] McDonald v Parnell Laboratories (Aust) Pty Ltd(2007) 168 IR 375: [79], as per Buchanan J.
Thus, where the period of notice is specified in the contract of employment, in general, damages will be limited to that amount. However, in Buittendag[58] the Court held that where there is evidence that the employment relationship would have continued (but for the breach of contract), then damages must be assessed as if the contract had continued, rather than being brought to an end in accordance with notice provisions[59]. This is also consistent with claims for loss of opportunity for ongoing employment[60].
[58] Buittendag v Ravensthorpe Nickel Operations Pty Limited [2012] WASC 425 (10 April 2013)
[59] At [179].
[60] as per The Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64
In this case, this is said to mean that Mr Gutierrez may claim damages on the basis that but for the breach, the contract would have continued until September 2019, noting in particular MUR Shipping’s evidence that the contract would have continued into 2019.[61]
Damages
[61] Mr Smith’s affidavit made on 19 February 2021: [38].
Economic loss
The leading case in relation to general damages and followed in this jurisdiction is Richardson v Oracle Corporation Australia Pty Ltd[62]. In that case, the Full Federal Court[63] determined that general damages in discrimination claims should not be insignificant and overturned the award of $18,000 at first instance and replaced it with damages of $100,000[64]. The judge at first instance accepted the applicant had suffered psychological injury including adjustment disorder and that injury was “not insignificant”, [65] although that injury did not prevent her from working.
[62] (2014) 223 FCR 334.
[63] As per Kenny, Besanko and Perram JJ.
[64] Oracle Corporation at [81] as per Kenny J and [119] of the joint judgment of Besanko J and Perram J, as well as $30,000 for loss of opportunity of increased wages with Oracle if the Applicant had remained employed.
[65] Richardson v Oracle Corporation Australia Pty Ltd (2013) 232 IR 31 at [244].
Mr Gutierrez in this case is said to have suffered a significant psychiatric injury as a result of the discriminatory treatment, having developed an adjustment disorder with depression and anxiety, which has caused him to be unable to work, as well as having an enormous impact on his ability to enjoy life.[66] In that context, Mr Gutierrez submits that the general damages to be awarded in this case ought not be less than $300,000, noting Dr Kaplan’s view that his symptoms are likely to resolve contingent upon successful prosecution of this claim. That amount would be in line with other awards of damages in similar cases such as Naidu v Group 4 Securitas Pty Ltd.[67]
[66] Dr Kaplan’s affidavit, Annexure RMK6, report at page 6.
[67] [2005] NSWSC 618.
Mr Gutierrez is otherwise said to be entitled to economic loss for the period of time he would have continued to work, being until September 2019 from the date he accepted the repudiation of the contract. Mr Gutierrez accepts that an average of the bonuses he received since 2014 means he should be paid $4,551.72 on account of bonus and on a pro rata basis to September 2019. Mr Gutierrez says the total amount is not less than $142,215.56 inclusive of base salary, superannuation, additional statutory entitlements and bonus.
Apology
The power to make such orders is under s 46PO(4) of the AHRCA, which states:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under this section--see section 43 of the Federal Court of Australia Act 1976 .
Note 2: The Federal Circuit Court, or a judge of that court, may award costs in proceedings under this section--see section 24 of the Federal Circuit and Family Court of Australia Act 2021 .
(emphasis added)
The leading cases on the proper approach to this provision are those of Mortimer J in Wotton v State of Queensland (No 5)[68] and Wotton v State of Queensland (No 6).[69] In this context, it is said to be entirely consistent with the statutory purpose of the ADA to require MUR Shipping to provide an unreserved apology for engaging in conduct in breach of the ADA.
[68] [2016] FCA 1457: [1600]-[1604].
[69] [2017] FCA 245: [15]-[20].
In short, Mr Gutierrez submits that MUR Shipping has engaged in unlawful discrimination on the ground of age and he is entitled to significant damages for economic loss and pain and suffering.
Redundancy
As noted above, during the course of the trial Mr Gutierrez’s claim was amended to add a claim for redundancy under the Fair Work Act and a claim for a pecuniary penalty under that Act.
Mr Gutierrez’s submissions on redundancy are as follows.
In order to be entitled to redundancy, Mr Gutierrez must prove:
(a)that the termination was at the employer’s initiative; and
(b)that the employer no longer required the job to be done by anyone.[70]
[70] Re Termination, Change and Redundancy Case (1984) 8 IR 34.
What this test shows is that intent is no part of the test. That is, an employer does not have to express any intention that the job be done by no one before, or at the time of the dismissal. It is enough that it was not in fact done by anyone after termination.
A job involves a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee.[71] Where there has been a reorganisation or redistribution of duties, the question is whether the employee has “any duties left to discharge”.[72] If there is no longer any function or duty to be performed by that person, his or her position becomes redundant.[73]
[71] Jones v Department of Energy and Minerals ; (1995) 60 IR 304: 308 as per Ryan J, cited in Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32 at [17] as per Boulton J, Drake SDP and McKenna C.
[72] Ibid.
[73] Ibid.
An employee may still be genuinely made redundant when there are aspects of the employee's duties still being performed by other employees[74]. The reference to “a job no longer being performed by anyone” refers to anyone employed by the business[75]. Therefore, the position can be performed by independent contractors supplying services[76].
[74] Dibb v Commissioner of Taxation (2004) 136 FCR 388: [43]-[44].
[75] Suridge v Boral Window Systems Pty Ltd [2012] FWA 3126: [73]-[75] as per Hampton C.
[76] Ibid.
Mr Gutierrez submits that it was clear that it was always MUR Shipping’s intention to restructure the work to get rid of the role of Chief Accountant. That is said to be clear from the evidence given under cross-examination as set out above and including:
(a)Ms Fernandes could never take over as Chief Accountant given:
(i)Mr Smith’s evidence Ms Fernandes did not have the qualifications to be an accountant in Australia without further study, and
(ii)she did not commence further study;
(b)MUR Shipping had access to a related company (acquired in 2017) able to undertake the accounting work previously done by Mr Gutierrez;
(c)no one was ever appointed to the position of Chief Accountant after Mr Gutierrez left; and
(d)both Mr Smith and Mr Getty were careful in cross-examination never to say the intent was for Ms Fernandes to transition to the position of Chief Accountant but to accounts generally.
If the Court agrees that Mr Gutierrez’s position was made redundant, the next issue is whether payments in respect of notice and redundancy under s 119 of the Fair Work Act must be deducted from damages paid under discrimination law. Mr Gutierrez submits it should not for the following reasons:
(a)the entitlement to redundancy conferred by s 119 is to compensate the employee for loss of non-transferrable credits, including long service leave;[77] and
(b)section 119 has no “income maintenance” purpose. While a minor component referable to the inconvenience and hardship associated with redundancy, its purpose is not to address the time spent searching for another job or any period of unemployment.
[77] Ulan Coal Mines Ltd: [17].
Mr Gutierrez accepts notice (under s 117 of the Fair Work Act) cannot be double paid, so to the extent there are damages for economic loss due to the age discrimination, Mr Gutierrez cannot be paid twice in respect of the notice period.
Penalty
In PIA Mortgage Services Pty Ltd v King[78] the Full Federal Court[79] overturned a decision of this Court to award no penalties and set out the factors relevant to court’s exercise of discretion to determine the appropriate penalty as follows[80]:
[78] (2020) 274 FCR 225.
[79] as per Rangiah and Charlesworth JJ, Snaden J dissenting.
[80] at [57].
There are well-established principles which guide the exercise of the Court’s discretion to determine the appropriate penalty. Although the authorities warn against applying a rigid check-list of matters, the factors recognised as being potentially relevant to the determination of the appropriate penalty include the following:
(1)the nature and importance of the project where the conduct was undertaken (in a building case);
(2)      the nature and extent of the conduct which led to the breaches;
(3)      the circumstances in which the conduct took place;
(4)the nature and extent of any loss or damage sustained as a result of the breaches;
(5)      whether there had been similar previous conduct by the respondents;
(6)whether the breaches were properly distinct or arose out of one course of conduct;
(7)      the size of the business enterprise involved;
(8)      whether or not the breaches were deliberate;
(9)      whether senior management was involved in the breaches;
(10)     whether the party committing the breach exhibited contrition;
(11)     whether the party committing the breach has taken corrective action;
(12)whether the party committing the breach cooperated with the enforcement authorities;
(13)     the need for specific and general deterrence.
See, for example, Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357 at [57]–[58]; Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14], [28]–[30]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) (2015) 234 FCR 451; [2015] FCA 407 at [90].
While these factors are relevant, ultimately “the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations”.[81]
[81] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560: [91] as per Buchanan J.
Mr Gutierrez submits that in this case:
(a)there is no specific nature of the conduct to be taken into account;
(b)the nature of the conduct leading to the breaches was particular egregious in that MUR Shipping put pressure on Mr Gutierrez to retire which was in breach of the ADA in order to avoid making payments under the Fair Work Act;
(c)the conduct has included concerted effort by two very senior employees of the company;
(d)the loss suffered by Mr Gutierrez has been significant based on the medical evidence;
(e)there is no evidence of similar breaches;
(f)the conduct arose out of a course of conduct;
(g)the size of the business in Australia is modest, being around 20 employees although it is a global business;
(h)the breaches were deliberate;
(i)there has been no expression of contrition and no corrective action taken;
(j)whether or not the breaches were deliberate; and
(k)there is a need for specific and general deterrence in this case.

Under s 546(3)(c) of the Fair Work Act an applicant may seek payment of penalties to him. Mr Gutierrez submits that the penalty should be not less than around a quarter of the maximum penalty for the corporation, being $16,650, for the reasons set out above.
MUR Shipping’s contentions
MUR Shipping submits that the Court should be satisfied that it has not engaged in (or committed) unlawful discrimination and has not breached or repudiated the contract of employment.
MUR Shipping submits that the Court should dismiss the proceedings.
Jurisdiction
MUR Shipping accepts that the Court has jurisdiction as:
(a)Mr Gutierrez lodged a written complaint in the AHRC alleging unlawful discrimination;[82]
(b)the AHRC referred the complaint to its President;[83]
(c)the President conducted an inquiry into the complaint and attempted conciliation of the complaint;[84]
(d)the President terminated the complaint;[85]
(e)the President terminated the complaint on the basis of no reasonable prospects of the complaint being settled by conciliation;[86]
(f)the President notified Mr Gutierrez in writing of termination of the complaint;[87]
(g)Mr Gutierrez applied to this Court alleging unlawful discrimination;[88] and
(h)the application to this Court was lodged on 31 October 2019, which was within 60 days after the date of issue of the notice of termination of the complaint on 18 September 2019.[89]
[82] see s 46PO of the AHRCA.
[83] see s 46PD of the AHRCA.
[84] see s 46PF(1)(c) of the AHRCA.
[85] see section 46PH of the AHRCA; see also Mr Gutierrez’s first affidavit, annexure AG11 (CB: 230).
[86] see s 46PH(1B)(b) of the AHRCA; see also Mr Gutierrez’s first affidavit, annexure AG11 (CB: 230).
[87] see s 46PH(2) of the AHRCA; Mr Gutierrez’s first affidavit, annexure AG11 (CB: 230).
[88] see s 46PO(1) of the AHRCA.
[89] see s 46PO(2) of the AHRCA; see also SOC, [2] .
MUR Shipping also accepts that (apart from one issue) the unlawful discrimination alleged in these proceedings is the same as the unlawful discrimination alleged in the complaint.[90] The one issue relates to the period of the alleged discrimination. By the written complaint to the AHRC, Mr Gutierrez alleged that the events occurred between 16 and 25 July 2018.[91] By his opening submissions, Mr Gutierrez alleged that the events occurred from February 2018.[92] MUR Shipping submits that, by statute, Mr Gutierrez is precluded from amending his claim by expanding the period of the alleged discrimination.[93]
[90] see s 46PO(3) of the AHRCA.
[91] see Mr Gutierrez’s first affidavit, annexure AG9, page 5 (CB: 222).
[92] see Applicant’s Outline of Opening Submissions dated 14 April 2021 (AOOS), [1] (CB: 78).
[93] see s 46PO(3) of the AHRCA.
Unlawful discrimination
MUR Shipping accepts that unlawful discrimination includes an act, omission or practice that is unlawful under Part 4 of the ADA.[94]
[94] see s 3 of the AHRCA, “unlawful discrimination”.
Part 4 of the ADA renders unlawful discrimination on the ground of age in a variety of contexts, including in employment.[95]
[95] see s 18 of the ADA; Part 4 of the ADA contains a number of exemptions but none are applicable to the present proceedings.
It is common ground that MUR Shipping was the employer of Mr Gutierrez in 2018.
Relevantly, s 18 of the ADA provides:
(1)It is unlawful for an employer … to discriminate against a person on the ground of the other’s age:
…
(2)It is unlawful for an employer … to discriminate against an employee on the ground of the employee’s age:
(a)in the terms and conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
…
Mr Gutierrez relies on each paragraph in s 18(2) of the ADA.[96] MUR Shipping denies that any of its conduct constituted a contravention of s 18(2).
[96] see ASOC, [28]; see also AOOS, [10] (CB: 81).
Onus of proof
Mr Gutierrez bears the onus of proof concerning discrimination.[97]
[97] see Qantas Airways Limited v Gama (2008) 167 FCR 537 at [65] per French and Jacobson JJ, at [132] per Branson J; Thompson v Big Bert Pty Ltd t/as Charles Hotel (2007) 168 IR 309 at [45] per Buchanan J.
Mr Gutierrez bears the onus of proof concerning loss, including each head of loss.[98]
[98] see Watts at [293] per Mortimer J; see also Coles Supermarkets Australia Pty Limited v Fardous [2015] NSWCA 82 at [25] per Macfarlan JA.
Discrimination
In terms of “discrimination” (see the chapeau to s 18(2) of the ADA), Mr Gutierrez claims both direct and indirect discrimination.[99] MUR Shipping denies that it discriminated against Mr Gutierrez directly or indirectly.
[99] see AOOS, [10], [12], [13] to [16] (CB: 81-83).
In terms of direct discrimination, Mr Gutierrez asserts that MUR Shipping engaged in four types of conduct (collectively, the Treatment):[100]
(a)first, MUR Shipping (through Mr Getty) held discussions with Mr Gutierrez in February 2018 and March 2018 over his retirement plans in circumstances where he was reminded that he was over 65 years of age (the Retirement Discussions);[101]
(b)secondly, MUR Shipping (through Mr Getty) informed Mr Gutierrez that the position of Chief Accountant (the position held by Mr Gutierrez) had been offered to Ms Fernandes, another employee (the Offer);[102]
(c)thirdly, MUR Shipping (through Mr Getty) directed Mr Gutierrez on 23 April 2018 to train Ms Fernandes to carry out the position of Chief Accountant (the Redeployment);[103]
(d)fourthly, MUR Shipping (through Mr Smith) terminated on 19 July 2018 (or gave notice of the termination on 19 July 2018) the contract of employment that Mr Gutierrez had with it (the “Termination”).[104]
MUR Shipping denies that it made the Offer, that it directed the Redeployment or that it initiated or implemented the Termination. MUR Shipping also denies aspects of the Retirement Discussions.
[100] see ASOC, [29].
[101] see ASOC, [16].
[102] see ASOC, [18].
[103] see ASOC, [21]; AOOS, [11(a)] (CB: 81).
[104] see ASOC, [23]; AOOS, [11(c)] (CB: 81); see also ASOC, [24].
In terms of indirect discrimination, Mr Gutierrez asserts that MUR Shipping imposed a condition that its employees retire once they were over the age of 65 years (referred to as the “Condition”).[105] MUR Shipping denies that it imposed the Condition. MUR Shipping also denies that employment came to an end due to the Condition.
[105] see ASOC, [33].
Proscribed action
In terms of s 18(2)(a), Mr Gutierrez claims that MUR Shipping changed or purported to change the terms of employment from ongoing employment to fixed term employment.[106] MUR Shipping denies that it changed or purported to change the terms of employment (noting that it denies the Termination and the Termination is alleged to be the means of changing or purporting to change the terms of employment) and maintains that it raised on 19 July 2018, in a preliminary way, the option of Mr Gutierrez (if he was agreeable) of changing the terms of employment in the future to an annual contract (but with all other terms remaining the same).
[106] see ASOC, [28(a)]; AOOS, [11(a)] (CB: 81).
In terms of s 18(2)(b), Mr Gutierrez claims that MUR Shipping denied him, or limited his access or opportunities to access, benefits associated with his employment, including the alleged benefit of deciding when he would retire and the alleged benefit of accruing entitlements such as long service leave.[107] MUR Shipping denies that the two alleged benefits are benefits of the kind contemplated by or within the meaning of s 18(2)(b). MUR Shipping denies that the two alleged benefits are benefits associated with employment. MUR Shipping also denies that it denied or limited Mr Gutierrez from deciding when he would retire or precluded or restricted him from accruing entitlements such as long service leave (noting that it denies the Termination and the Termination is the means by which the alleged benefits were denied or limited). It seems that the claims in terms of s 18(2)(b) are premised on Mr Gutierrez becoming a contractor (if he chose to accept an annual contract) but the premise is said to be false.
[107] see ASOC, [28(b)]; AOOS, [11(b)] (CB: 81).
In terms of s 18(2)(c), Mr Gutierrez claims that MUR Shipping either terminated the employment on 19 July 2018 or purported to terminate the employment on 19 July 2018 with effect from 31 December 2018.[108] MUR Shipping denies the Termination.
[108] see ASOC, [28(c)]; AOOS, [11(c)] (CB: 81); see also ASOC, [23], [24].
In terms of s 18(2)(d), Mr Gutierrez claims that MUR Shipping subjected him to detriments, including by being placed under pressure to retire earlier than he intended, treating his indication of when he would consider retiring as notice and being made to train his replacement before he gave notice.[109] MUR Shipping denies that the three alleged detriments are detriments of the kind contemplated by or within the meaning of s 18(2)(d). MUR Shipping denies that it subjected Mr Gutierrez to such detriments.
[109] see ASOC, [28(d)]; AOOS, [11(d)] (CB: 81).
Claimed loss
Mr Gutierrez claims that he suffered economic loss and general damage from the unlawful discrimination. MUR Shipping does not accept that Mr Gutierrez has established such loss.
Mr Gutierrez claims that the period of his economic loss from the unlawful discrimination was from 1 August 2018 to 5 September 2019.[110] However MUR Shipping submits that:
(a)properly considered, on the evidence of Mr Gutierrez (albeit denied by MUR Shipping), the employment was not terminated on 19 July 2018 but was to continue in employment until 31 December 2018[111] and then on an annual contract[112] and so it was Mr Gutierrez, not MUR Shipping, that brought the employment to an end before 31 December 2018 and before 5 September 2019 (or 31 December 2019) (as Mr Gutierrez wrongly asserted repudiation of the contract of employment and wrongly accepted on 1 August 2018 the asserted repudiation and as Mr Gutierrez resigned his employment), with the result that he suffered no loss from the unlawful discrimination; or
(b)in the alternative, the Court should assess (in the circumstances) any claimed loss from the unlawful discrimination by reference to the contractual approach to loss including in accordance with the least burdensome period[113] such that this Court should assess economic loss on the basis that MUR Shipping would have brought the employment to an end in the least burdensome way to it, which would have been to bring the employment to an end in accordance with the contract of employment on five weeks’ notice.[114]
[110] see AOOS, [23] (CB: 84).
[111] see Mr Gutierrez’s first affidavit, [35] (CB: 35); see also AOOS, [6] (CB: 80)).
[112] see Mr Gutierrez’s first affidavit, [35] (CB: 35).
[113] see AOOS, [19] (CB: 83).
[114] see clause 11.1 of the contract of employment, Annexure AG1 to Mr Gutierrez’s first affidavit (CB: 107).
Mr Gutierrez claims that his alleged loss includes salary increases, bonuses, annual leave and long service leave.[115] However MUR Shipping submits that:
(a)Mr Gutierrez had no contractual entitlement to a salary increase;[116]
(b)Mr Gutierrez had no contractual entitlement to a bonus[117] and was not paid a bonus in each year of employment;[118] and
(c)loss and damage does not usually extend to the loss of annual leave and long service leave that would have accrued if employment continued.[119]
[115] see SOC, [27], [39] (CB: 12, 14); see also AOOS, [23] (CB: 84).
[116] compare clause 6 of the contract of employment (CB: 106).
[117] see also Mr Getty’s affidavit, [59] (CB: 61).
[118] Mr Gutierrez’s first affidavit, [21] (CB: 32); AOOS, [2] (CB: 78).
[119] see, for example, the lack of economic loss damages awarded for annual leave and long service leave in Fetherston v Peninsula Health [2004] FCA 485 at [97] per Heerey J; Poniatowska v Hickinbotham [2009] FCA 680 at [355], [356] per Mansfield J.
MUR Shipping understands that Mr Gutierrez claims general damages of “at least” $150,000[120] and “not less” than $300,000.[121] However, such a claim is said to be excessive (both in terms of the evidence and in terms of past awards). Additionally, to the extent that Mr Gutierrez relies on the decisions in Oracle Corporation and Naidu, the decisions are based on their own unique facts and the awards in those decisions are readily distinguishable.
[120] see ASOC, [39(b)] (CB: 14).
[121] see AOOS, [22] (CB: 84).
Mitigation of loss
MUR Shipping submits that Mr Gutierrez has not mitigated his claimed economic loss in circumstances where he was able to perform other remunerative work in the period from 1 August 2018 to 5 September 2019.[122]
[122] see also Watts at [287], [290], [291] per Mortimer J.
MUR Shipping also submits that Mr Gutierrez has not mitigated his claimed economic loss in circumstances where (on the evidence of Mr Gutierrez) he was offered an annual contract (on the same remuneration) and it was reasonable for him to accept and work pursuant to the annual contract (on the same remuneration) from 1 January 2019 to 5 September 2019.
Lack of causation
MUR Shipping also denies that it caused any claimed loss. In particular, Mr Gutierrez ceased working for MUR Shipping from 1 August 2018 pursuant to a resignation,[123] with the claims in that resignation of constructive termination having no foundation in fact or in law.
[123] see Mr Gutierrez’s first affidavit, annexure AG7, page 2 (CB: 152).
Apology
Whilst MUR Shipping accepts that the Court has power to order the provision of an apology, it submits that no apology should be ordered where the apology is not to be given voluntarily[124] and the ordering of an apology is opposed.
[124] see, for example, Oracle Corporation Australia at [258] per Buchanan J; Reurich v Club Jervis Bay Ltd [2018] FCA 1220 at [360]-[361] per Markovic J.
Breach and repudiation of contract
It is common ground that Mr Gutierrez was employed pursuant to a written contract of employment.[125]
[125] CB: 105.
Mr Gutierrez claims that the written contract of employment contained, as an implied term of fact, that MUR Shipping was bound by the anti-discrimination policy of MUR Shipping (the Anti-Discrimination Term).[126] MUR Shipping denies that it was contractually bound by an anti-discrimination policy and that the Anti-Discrimination Term was a term of the written contract of employment.[127] MUR Shipping also denies that it had, at any relevant time, an anti-discrimination policy.[128]
[126] see ASOC, [8(h)].
[127] compare clause 14 of the contract of employment (CB: 108).
[128] see Mr Getty’s affidavit, [76] (CB: 64).
Breach
Mr Gutierrez claims that MUR Shipping breached the contract of employment on 19 July 2018 by indicating that it intended to terminate the contract on 31 December 2018.[129] Mr Gutierrez alleges that three terms were breached by the indication, the Notice Term, the Anti Discrimination Term and the Health and Safety Term.[130] However, MUR Shipping denies that it breached the Notice Term, the Anti Discrimination Term or the Health and Safety Term on 19 July 2018.
[129] see ASOC, [23]; AOOS, [18] (CB: 83).
[130] see ASOC, [23].
Repudiation
Mr Gutierrez alleges that the claimed breach of contract was a repudiation[131] which he accepted on 1 August 2018.[132] MUR Shipping submits that there was no breach of contract on 19 July 2018 and so there was no repudiation on 19 July 2018. The purported acceptance of a non-repudiation was (of itself) an ineffective legal act. The resignation, however, at the same time was effective.
[131] see ASOC, [25]; AOOS, [9], [18] (CB: 80, 83); see also Mr Gutierrez’s first affidavit, [40] (CB: 36).
[132] see ASOC, [25]; AOOS, [9], [18] (CB: 80, 83).
Damages, mitigation and causation
MUR Shipping repeats its submissions on damages, mitigation and causation referred to above.
Apology
The Court has no power to award an apology for a breach of contract.
Redundancy
MUR Shipping in its amended defence denies that there was a redundancy.
Resolution
In this judgment, I find that, while MUR Shipping did unlawfully discriminate against Mr Gutierrez on account of his age, inasmuch as it treated Mr Gutierrez disrespectfully and less favourably than his intended replacement (Ms Fernandes), Mr Gutierrez has not suffered any economic loss caused by that discrimination because he chose to resign his employment when there was no need to do so.
I further find that Mr Gutierrez should receive an apology and damages for non economic loss in relation to the age discrimination.
Further, I find that MUR Shipping did not breach or repudiate Mr Gutierrez’s contract of employment and did not terminate his employment at its initiative because of redundancy.
As noted above, Mr Gutierrez relies on four types of conduct to endeavour to demonstrate differential treatment (and thereby discrimination), namely the Retirement Discussions, the Offer, the Redeployment and the Termination.[133]
[133] see ASOC, [16], [18], [21] and [23].
Mr Gutierrez also relies on four types of proscribed action.[134]
[134] see s 18(2)(a), s 18(2)(b), s 18(2)(c) and section 18(2)(d); see ASOC, [28].
MUR Shipping submits and I accept that Mr Gutierrez cannot succeed if he is unable to establish the differential treatment.
MUR Shipping also submits and I accept that, alternatively or additionally, Mr Gutierrez cannot succeed if he is unable to establish the proscribed action.
MUR Shipping further submits and I accept that Mr Gutierrez cannot succeed if he is unable to establish loss or damage.
Finally, MUR Shipping submits and I accept that Mr Gutierrez cannot succeed if the claimed loss is not caused by MUR Shipping.
Retirement discussions
Mr Gutierrez alleges that MUR Shipping engaged in the Retirement Discussions on two occasions, the first in February 2018[135] and the second in March 2018.[136] However, MUR Shipping disputes the content of the conversations as follows:
[135] see ASOC, [16(a)]; AOOS, [4] (CB: 78-79); see also Mr Gutierrez’s first affidavit, [25] (CB: 32).
[136] see ASOC, [16(b)]; AOOS, [4] (CB: 78-79); see also Mr Gutierrez’s first affidavit, [30] (CB: 34).
First alleged conversation
(a)in early February 2018, Mr Getty enquired whether Mr Gutierrez had any foreseeable plans to retire,[137] apparently with a view to ensuring that MUR Shipping was able to recruit a replacement employee;[138]
[137] see Mr Getty’s affidavit, [21] (CB: 55-56); Mr Gutierrez’s Cross Examination (3 May 2021 (T62.09 – T62.10).
[138] see Mr Getty’s affidavit, [18], [21] (CB: 55, 56).
(b)in late February 2018, Mr Gutierrez informed Mr Getty that he intended to retire sometime between July 2018 and September 2019;[139]
[139] see Mr Getty’s affidavit, [21] (CB: 56); Mr Gutierrez’s Cross Examination (3 May 2021 (T64.25 – T64.31)).
(c)in February 2018, MUR Shipping did not (and did not to the knowledge of Mr Getty) have a fixed retirement age of 65 years[140] and in circumstances where Mr Alfred Willings worked for MUR Shipping (for some time as a consultant and for some time as a director) until his 80^th birthday;[141]
[140] see Mr Getty’s affidavit, [63(b)] (CB: 62); see also Mr Getty’s affidavit, [11] (CB: 54); Annexure JS-9 to Mr Smith’s affidavit, email from Mr Smith to solicitors for Applicant sent 8 August 2018, [5] (CB: 213).
[141] CB: 110; see also Mr Gutierrez’s Cross Examination (3 May 2021 (T56.41 – T61.42; T57.13 – T57.14)); see further observation of the Court (3 May 2021 (T49.25 – T49.33).
(d)in February 2018, Mr Gutierrez was 68 years of age[142] thereby supporting the lack of a fixed retirement age;
(e)in February 2018, Mr Getty did not inform Mr Gutierrez that MUR Shipping had a retirement age of 65 years;[143]
(f)Mr Getty has no recollection of a reference by Mr Gutierrez to the retirement age of soldiers or judges;[144]
(g)in February 2018, Mr Getty did not think that 60 year olds were “too old to shoot”;[145] and
(h)in February 2018, Mr Getty did not inform Mr Gutierrez that he thought that 60 year olds were too old to shoot.[146]
Second alleged conversation
(a)Mr Getty denies asking Mr Gutierrez in March 2018 about a retirement unit in Manila;[147]
(b)Mr Getty admits he had discussed with Mr Gutierrez the retirement unit in Manila some years prior to March 2018;[148] and
(c)Mr Getty denies telling Mr Gutierrez in March 2018 that Ms Fernandes would take over from him,[149] noting too that Mr Getty had not raised with Mr Muirhead, the Chair of the MUR Group the possibility of employing Ms Fernandes as an administration officer until 4 April 2018.[150]
[142] see Mr Gutierrez’s Cross Examination (3 May 2021 (T62.01)); Mr Getty’s Cross Examination (5 May 2019 (T253.28)).
[143] see Mr Getty’s affidavit, [63(c)] (CB: 62).
[144] see Mr Getty’s affidavit, [63(d)] (CB: 62); Mr Getty’s Cross Examination (5 May 2021 (T257.25 – T257.33))
[145] see Mr Getty’s affidavit, [63(f)] (CB: 62).
[146] see Mr Getty’s affidavit, [63(g)] (CB: 62).
[147] see Mr Getty’s affidavit, [67(b)] (CB: 62).
[148] see Mr Getty’s affidavit, [67(b)] (CB: 62).
[149] see Mr Getty’s affidavit, [33] (CB: 58).
[150] see email sent from Mr Getty to Mr Muirhead sent 4 April 2018 at 10.46am (Exhibit A1). Mr Getty felt that he needed the approval of Mr Muirhead to employ Ms Fernandes (see Mr Getty’s affidavit, [34] (CB: 58); see also Mr Getty’s Re-Examination (9 June 2021 (T293.17 – T293.21)).

Mr Gutierrez alleges that the Retirement Discussions occurred in the context of MUR Shipping (presumably Mr Getty) reminding him that he was over 65 years of age.[151] However, the second occasion said to constitute the Retirement Discussions, a conversation occurring in March 2018, did not (on the case of Mr Gutierrez) reference his age at all.[152]
[151] see ASOC, [16(c)].
[152] see Mr Gutierrez’s first affidavit, [30] (CB: 34).
Mr Gutierrez claims that the Retirement Discussions had the effect of placing pressure on him to nominate an early retirement date.[153] However:
(a)Mr Gutierrez decided to retire in September 2019 when he attained the age of 70 years;[154]
(b)Mr Gutierrez nominated to Mr Getty an intention to retire in September 2019 (the time that he attained 70 years of age);[155]
(c)Mr Gutierrez did not complain to MUR Shipping over any alleged pressure on him to nominate an early retirement date;[156]
(d)Mr Gutierrez sought to “tease” Mr Getty during one of the discussions by asking whether there was an incentive to retire,[157] thereby suggesting a lack of pressure; and
(e)Mr Gutierrez over the course of the discussions increased (without complaint or opposition of MUR Shipping) the range of his intended retirement (from an initial 12 month range from July 2018 to July 2019 to a later 15 month range from July 2018 to September 2019).[158]
[153] see ASOC, [17] (CB: 16F).
[154] see Dr Kaplan’s affidavit, annexure RMK2, page 2 and page 5 (CB: 250, 253); Dr Kaplan’s affidavit, annexure RMK4, page 2 and page 5 (CB: 259, 262); Dr Kaplan’s Notes (Exhibit R3), page 2, left hand side, “Changed my plan – plan to retire 9/19”; Mr Gutierrez’s Cross Examination (3 May 2021 (T86.28 – T86.30)).
[155] see ASOC, [19]; see also Mr Getty’s affidavit, [23] (CB: 56); Mr Gutierrez’s Cross Examination (3 May 2021 (T86.28 – T86.30)).
[156] see Mr Getty’s affidavit, [21], [22], [24], [64] (CB: 55-56, 62); Mr Smith’s affidavit, [58] (CB: 74).
[157] see Mr Gutierrez’s Cross Examination (3 May 2021 (T63.11 – T63.18; T64.01 – T64.13)); see also Mr Gutierrez’s second affidavit, [26(c)] (CB: 43).
[158] see Mr Getty’s affidavit, [21], [23] (CB: 56), thereby suggesting a lack of pressure.
Offer
Mr Gutierrez alleges MUR Shipping informed him that Ms Fernandes was offered his position.[159]
[159] see ASOC, [18]; see also AOOS, [4] (CB: 79).
In early 2018, Mr Gutierrez held the position of Chief Accountant.[160]
[160] see Mr Gutierrez’s Cross Examination (3 May 2021 (T62.07)).
I accept that in early 2018, Mr Getty was concerned over succession planning.[161] At that time, Mr Getty wished to ensure that MUR Shipping had a qualified and experienced person to perform the role of Chief Accountant when Mr Gutierrez retired.[162]
[161] see Mr Getty’s affidavit, [18] (CB: 55); Mr Getty’s Cross Examination (5 May 2021 (T256.01 – T256.02)).
[162] see Mr Getty’s affidavit, [18] (CB: 55).
In early 2018, Mr Getty became aware that Ms Fernandes, an accounting employee of MUR Dubai,[163] was relocating to Sydney[164] and had not found employment in Sydney.[165]
[163] see Mr Getty’s affidavit, [25] (CB: 57).
[164] see Mr Getty’s affidavit, [25] (CB: 57).
[165] see Mr Getty’s affidavit, [27] (CB: 57).
In mid-March 2018, Mr Getty apparently formed the view that Ms Fernandes could be a suitable person to work in the North Sydney office of MUR Shipping in an administrative capacity with a view to training her to work in Mr Gutierrez’s role on his retirement.[166]
[166] see Mr Getty’s affidavit, [29] (CB: 57).
In late-March 2018, Mr Getty met with Ms Fernandes.[167] Mr Getty formed the view Ms Fernandes had the skills to be an accountant when Mr Gutierrez retired.[168] Mr Getty discussed his views with both Mr Smith and Mr Gutierrez.[169]
[167] see Mr Getty’s affidavit, [30] (CB: 57).
[168] see Mr Getty’s affidavit, [30] (CB: 57).
[169] see Mr Getty’s affidavit, [32], [33] (CB: 58).
In late-March 2018, Mr Gutierrez did not organise any interview with Ms Fernandes[170] and did not participate in any formal or informal interview with Ms Fernandes,[171] and so was not in a position to know of the purpose of any interview or the matters discussed at the interview.[172]
[170] see Mr Gutierrez’s Cross Examination (3 May 2021 (T67.14)).
[171] see Mr Gutierrez’s Cross Examination (3 May 2021 (T67.05 – T67.13)).
[172] see Mr Gutierrez’s Cross Examination (3 May 2021 (T67.16 – T67.22)).
In early April 2018, Mr Getty decided (subject to the approval of Mr Muirhead) to offer Ms Fernandes employment with MUR Shipping in the role of administrative officer.[173] Mr Getty expected that Ms Fernandes would perform the role of administrative officer until Mr Gutierrez retired in September 2019.[174] In early April 2018, Mr Getty understood that he had the approval of Mr Muirhead to offer Ms Fernandes employment in the role of administrative officer.[175]
[173] see Mr Getty’s affidavit, [34] (CB: 58); Mr Getty’s Cross Examination (5 May 2021 (T248.26 – T248.30)).
[174] see Mr Getty’s affidavit, [34] (CB: 58); see also fourth paragraph of email from Mr Getty to Mr Muirhead sent 6 April 2018 at 12.20pm (Exhibit A1); Mr Getty’s Cross Examination (5 May 2021 (T263.13 – T263.17)).
[175] see Mr Getty’s affidavit, [35] (CB: 58); see also email from Mr Muirhead to Mr Getty sent 6 April 2018 at 6.43pm (Exhibit A1).
On 9 April 2018, MUR Shipping offered Ms Fernandes employment in the role of Administration Officer.[176]
[176] Exhibits BWG1 and BWG2 to Mr Getty’s affidavit, CB: 129, 130.
On 23 April 2018, Ms Fernandes commenced employment in the role of Administration Officer.[177]
[177] see Mr Getty’s affidavit, [36] (CB: 58); Mr Smith’s Cross Examination (4 May 2021 (T152.42); 5 May 2021. (T229.38 – T229.39; T229.42)); Mr Getty’s Cross Examination (5 May 2021 (T277.14 – T277.15)).
On 23 April 2018, Ms Fernandes signed a contract of employment.[178] The contract specified the role of Ms Fernandes as Administration Officer.[179]
[178] see Mr Getty’s affidavit, [36] (CB: 58).
[179] see Mr Getty’s affidavit, annexure BWG-2 (CB: 130).
There is no evidence that Ms Fernandes was offered the position of Chief Accountant. She may have had an expectation that she might be offered that position when Mr Gutierrez retired. There is, however, no evidence that when she commenced employment Ms Fernandes was offered the position held by Mr Gutierrez. There is likewise no evidence that Ms Fernandes was to perform the duties of Chief Accountant from the commencement of her employment.
Redeployment
Mr Gutierrez claims that he was directed to train Ms Fernandes in his position.[180]
[180] see ASOC, [21].
Mr Gutierrez has led no independent evidence of the direction.
Mr Gutierrez has led no evidence that he trained Ms Fernandes (whether in his position or otherwise).
Termination
Primary allegation
Mr Gutierrez alleges that MUR Shipping (through Mr Smith) terminated his employment in a meeting on 19 July 2018.[181] However:
[181] see the implication from ASOC, [24] (CB: 16F); see also the letter from the solicitors for Mr Gutierrez to MUR Shipping dated 1 August 2018, tenth numbered paragraph (Mr Gutierrez’s first affidavit, annexure AG7) (CB: 152); Ms Aida Gutierrez’s affidavit, [9], [10] (CB 47).
(a)Mr Gutierrez only claims that MUR Shipping informed him on 19 July 2018 that “the Board has decided to terminate your contract effective 31 December 2018”.[182] On the face of the claim, the termination was not immediate but only intended to occur on 31 December 2018;
[182] see Mr Gutierrez’s first affidavit, [35] (CB: 35); see also Mr Gutierrez’s first affidavit, annexure AG5, third numbered paragraph (CB: 146); Mr Gutierrez’s Cross Examination (3 May 2021 (T71.10 – T71.13)).
(b)Mr Gutierrez states that he informed Mr Smith that the matter put to him by Mr Smith on 19 July 2018 was “illegal” and that Mr Smith should “check it out and let’s talk again”.[183] On the face of the statement, Mr Gutierrez was requesting MUR Shipping to re-consider its position and obtain advice on its position and, having done so, to discuss the matter with him further.[184] On this basis, Mr Gutierrez did not regard the position of MUR Shipping as its final position. Mr Smith agrees that Mr Gutierrez requested him to obtain advice on the position of MUR Shipping;[185]
[183] see Mr Gutierrez’s first affidavit, [35] (CB: 35); Mr Gutierrez’s second affidavit, [10(i)] (CB: 41); Mr Gutierrez’s Cross Examination (3 May 2021 (T71.31 – T71.32; T73.21 – T73.31)); Mr Smith’s Cross Examination (4 May 2021 (T172.01 – T172.12)).
[184] see also Mr Gutierrez’s Cross Examination (3 May 2021 (T71.34 – T71.40; T73.21 – T73.31)).
[185] see Mr Smith’s affidavit, [24] (CB: 69); Mr Smith’s Cross Examination (4 May 2021 (T172.09 – T172.10; T179.04 – T179.05)).
(c)Mr Smith did not inform Mr Gutierrez that the Board had decided to terminate his employment per se[186] but informed Mr Gutierrez that the Board would like to change his contract basis to an annual contract;[187]
[186] see Mr Smith’s affidavit, [24] (CB: 69); see also Mr Gutierrez’s first affidavit, annexure AG10, page 4, [5.12] (CB: 228).
[187] see Mr Smith’s affidavit, [24] (CB: 69); Mr Gutierrez’s Cross Examination (3 May 2021 (T82.13 – T82.14)); Mr Smith’s Cross Examination (4 May 2021 (T167.02; T185.45).
(d)Mr Smith sought and obtained legal advice from solicitors.[188] It is inherently likely that Mr Smith sought and obtained legal advice as he regarded the employment of Mr Gutierrez as continuing but saw difficulties. It is inherently unlikely in the context of his discussion with Mr Gutierrez, that Mr Smith would have sought legal advice after the fact if he regarded himself as having terminated the employment of Mr Gutierrez;
(e)Mr Gutierrez did not act on the basis that MUR Shipping had terminated his employment as he attended for work at the North Sydney office on:
(i)20 July 2018;[189]
(ii)24 July 2018;[190] and
(iii)25 July 2018;[191]
and he took a day of annual leave on 23 July 2018.[192]
(f)Mr Gutierrez did not act on the basis that MUR Shipping had terminated his employment as he arranged to obtain a medical certificate on 25 July 2018[193] which he supplied to MUR Shipping to justify his absence for part of the day on 25 July 2018 and to justify his absence from 26 to 31 July 2018;[194] and
(g)Mr Smith did not act on the basis that he had terminated the employment of Mr Gutierrez as Mr Smith sent emails to Mr Gutierrez on 27 July 2018[195] and other employees (at his request) sought to contact Mr Gutierrez and enquire about his health.[196]
[188] see Mr Smith’s affidavit, [29], [31] (CB: 70); Mr Smith’s Cross Examination (4 May 2021 (T180.31; T181.23 – T181.24)).
[189] see Mr Smith’s affidavit, [30] (CB: 70); Mr Gutierrez’s Cross Examination (3 May 2021 (T80.18 – T80.19)); Mr Smith’s Cross Examination (4 May 2021 (T181.46)).
[190] see Mr Gutierrez’s second affidavit, [12] (CB: 41); Mr Gutierrez’s Cross Examination (3 May 2021 (T80.27 – T80.29)); see also Mr Smith’s affidavit, [36] (CB: 70).
[191] see Mr Gutierrez’s second affidavit, [13] (CB: 41); Mr Gutierrez’s Cross Examination (3 May 2021 (T80.31)).
[192] see Mr Smith’s affidavit, [34] (CB: 70); Mr Gutierrez’s Cross Examination (3 May 2021 (T80.23 – T80.25)); Mr Smith’s Cross Examination (4 May 2021 (T182.13 – T182.14)).
[193] see Mr Gutierrez’s second affidavit, [13] (CB: 41); see also Mr Gutierrez’s Cross Examination (3 May 2021 (T80.33 – T80.45)).
[194] see Mr Gutierrez’s Cross Examination (3 May 2021 (T81.04 – T81.13)).
[195] see Mr Smith’s affidavit, [40] (CB: 72).
[196] see Mr Smith’s affidavit, [43], [45], [46] (CB: 72, 73; Mr Smith’s Cross Examination (4 May 2021 (T191.03; T191.28 – T191.32; T191.42 – T191.43)).
Additionally, both Mr Getty and Mr Smith understood that the Board of MUR Shipping had requested that Mr Smith discuss with Mr Gutierrez the willingness of Mr Gutierrez to commence on an annual contract commencing on 1 January 2019,[197] and so it is highly unlikely in such circumstances that Mr Smith would terminate the employment of Mr Gutierrez on 19 July 2018.
[197] see Mr Getty’s affidavit, [41], [42] (CB: 59); Mr Smith’s affidavit, [21] (CB: 68); see also Mr Getty’s Cross Examination (5 May 2021 (T279.42 – T279.45)).
Alternative allegation
In the alternative, Mr Gutierrez alleges that MUR Shipping breached the contract of employment on 19 July 2018 by indicating that it intended to terminate the contract on 31 December 2018.[198] Mr Gutierrez alleges that three terms were breached by the indication the Notice Term, the Anti-Discrimination Term and the Health and Safety Term.[199] However:
(a)the Notice Term required a minimum of one month’s notice of termination but the amount of notice required by law.[200] The amount of notice required by law for an employee aged 69 years with more than five years’ service was five weeks (see s 117(3) of the Fair Work Act). On the case of Mr Gutierrez, MUR Shipping gave notice on 19 July 2018 of termination taking effect on 31 December 2018. On the case of Mr Gutierrez, over five months’ notice of termination was given. On the case of Mr Gutierrez, there was no breach of the Notice Term;
(b)the Anti-Discrimination Term depends upon the existence of an anti-discrimination policy.[201] MUR Shipping never had an anti-discrimination policy.[202] There was no breach of the Anti-Discrimination Term; and
(c)the Health and Safety Term required MUR Shipping to provide a safe workplace taking all reasonable steps to prevent risks to health and safety.[203] In the case of Mr Gutierrez, MUR Shipping gave notice on 19 July 2018 of termination taking effect on 31 December 2018. The provision of notice of termination (without more) does not create a risk to health and safety. The provision of notice of termination (without more) does not entail the provision of a non-safe workplace. There was no breach of the Health and Safety Term.
[198] see ASOC, [23].
[199] see ASOC, [23].
[200] see clause 11.1 of the contract of employment (CB: 107).
[201] see clause 14 of the contract of employment (CB: 108); see also ASOC, [8(h)].
[202] see Mr Getty’s affidavit, [76] (CB: 64).
[203] see ASOC, [8(i)].
I find that, as there was no breach of the Notice Term, the Anti Discrimination Term or the Health and Safety Term, there was no breach of the contract of employment on 19 July 2018.
It is also relevant to note the Duties Term of the contract of employment.[204] By the Duties Term, Mr Gutierrez was required to carry out such duties in the position of Chief Accountant that may be assigned to him by the Managing Director. There was no breach of the Duties Term if the Managing Director required Mr Gutierrez to carry out duties of training his replacement.
[204] see CB: 105 (clause 4).
Additionally, on the version of events of Mr Gutierrez, he requested MUR Shipping re-consider its position and obtain advice on its position and, having done so, discuss the matter with him further. Such a request indicates that Mr Gutierrez did not regard the position of MUR Shipping as its final position (and thus did not constitute a breach of contract).
Finally, there is a distinction between the termination of the employment relationship (the cessation of employment) and the termination of the contract regulating the (continuing) employment relationship, with Mr Gutierrez recognising in his version of events that Mr Smith was proposing to terminate the contract on 31 December 2018 and to enter a new contract on 1 January 2019.[205]
[205] see Mr Gutierrez’s first affidavit, [35] (CB: 35); see also Mr Gutierrez’s Cross Examination (3 May 2021 (T71.14 – T71.15; T72.17 – T72.18; T76.04 – T76.05; T82.13 – T82.14; T82.20 – T82.21)); see further Mr Smith’s Cross Examination (4 May 2021 (T174.03 – T174.04; T193.12 – T193.13); 5 May 2021 (T219.17 – T219.24; T219.31 – T219.39; T221.28 – T221.46; T223.01 – T223.11)).
Age discrimination – treatment
MUR Shipping contends that, given that the Retirement Discussions, the Offer, the Redeployment and the Termination did not occur (as alleged), Mr Gutierrez is unable to establish the differential treatment.
I disagree. The logical comparator is Ms Fernandes. She was employed with the expectation that she would take over the position of Mr Gutierrez when he retired. MUR Shipping pressed Mr Gutierrez to nominate a firm retirement date. Notwithstanding that he complied, MUR Shipping proposed to deprive him of his agency as to his own future by replacing his ongoing employment contract with a fixed term contract. Further, he was expected to train his replacement. In these circumstances I have no difficulty in finding that Mr Gutierrez was treated less favourably than Ms Fernandes. Further, the less favourable treatment related specifically to Mr Gutierrez’s age.
Proscribed action
Mr Gutierrez relies on four types of proscribed action.[206]
[206] see ASOC, [28].
Mr Gutierrez appears to assert that MUR Shipping intended that, from 1 January 2019, he would be engaged as a contractor and would no longer obtain the benefits associated with employment (such as annual leave and long service leave).[207] There is no evidence that MUR Shipping had such an intention.[208] It is more likely that MUR Shipping intended that Mr Gutierrez would transfer to a fixed term contract in 2019. MUR Shipping contends that it regarded the meeting of 19 July 2018 as raising a proposal for further discussion.[209] On the version of events of Mr Gutierrez, which I prefer, Mr Smith informed him that was to be placed on a contract[210] or an annual contract.[211]
[207] see ASOC, [28(a)].
[208] see Mr Smith’s affidavit, [22] (CB: 68-69); see also Mr Getty’s affidavit, [41], [42], [43] (CB: 59).
[209] see Mr Smith’s Cross Examination (4 May 2021 (T166.19; T166.36 – T166.46; T167.18 – T167.25; T172.26 – T173.05); 5 May 2021 (T219.01 – T219.10; T222.13 – T222.29)).
[210] see Mr Gutierrez’s Cross Examination (3 May 2021 (T70.36; T72.17 – T72.18)).
[211] see Mr Gutierrez’s Cross Examination (3 May 2021 (T82.13 – T82.14)); see also Mr Smith’s Cross Examination (4 May 2021 (T167.02; T185.45); 5 May 2021 (T222.38)).
I find that two types of proscribed action have been established. First, in relation to s 18(2)(a), Mr Gutierrez’s terms of employment were prospectively to be changed to his detriment by terminating his ongoing contract of employment and placing him on a fixed term contract. Secondly, in relation to s 18(2)(d) Mr Gutierrez was disrespected in his employment, given his long and loyal period of employment. His own word was not accepted as to his retirement. A fixed term contract was to be imposed. Further, Mr Gutierrez was demeaned in his employment by being called upon to train his replacement.
Loss or damage
MUR Shipping contends that the Retirement Discussions are not alleged to have caused, and did not cause, any alleged loss. Mr Gutierrez does not give evidence that the Retirement Discussions caused him, for example, hurt and humiliation.[212] In reality, the Retirement Discussions are said to have caused no loss or damage.
[212] see Mr Gutierrez’s first affidavit, [25], [26], [30] (CB: 32, 33, 34).
Further MUR Shipping contends that the Offer and the Redeployment are not alleged to have caused, and did not cause, any alleged loss. Mr Gutierrez does not give evidence that the Offer and the Redeployment caused him, for example, hurt and humiliation. (MUR Shipping accepts that Mr Gutierrez stated that he felt angry and disappointed that Ms Fernandes started working in the North Sydney office[213] but it contends that such anger and disappointment was not connected to the Offer or the Redeployment.) In reality, the Offer and the Redeployment are said to have caused no loss or damage.
[213] see Mr Gutierrez’s first affidavit, [32] (CB: 34).
I disagree. Mr Gutierrez was hurt and offended by the way he perceived he was being treated, and his perception had a basis in fact. He is a proud man and saw that he was being treated as expendable. It was that hurt and offence which drove his resignation.

I accept that MUR Shipping did not initiate or implement the Termination. The Termination did not cause loss or damage.
I also find that while Mr Gutierrez did suffer an adjustment disorder, it did not preclude him from working:
(a)on 16 August 2018, Mr Gutierrez was issued with two statements of attainment from the Parramatta College for his completion of two units on the Xero software package.[214] On 14 November 2018, Mr Gutierrez was issued with a third statement of attainment from the Parramatta College for his completion of one unit on the MYOB software package.[215] The completion of these courses indicates that the adjustment disorder did not preclude Mr Gutierrez from functioning in a normal way, including by attending to work; and
(b)in the period from August 2018 to September 2019, Mr Gutierrez had the capacity to work for his daughter in her financial planning firm as a bookkeeper in a safe environment that would enable him to ease back to work (perhaps with the assistance of psychological counselling).[216]
[214] see CB 216; CB 217; see also Mr Gutierrez’s Cross Examination (3 May 2021 (T82.46 – T84.07)).
[215] see CB: 243; see also Mr Gutierrez’s Cross Examination (3 May 2021 (T84.09 – T84.38)).
[216] see Mr Gutierrez’s Cross Examination (3 May 2021 (T89.32 – T89.43)).
Economic loss
I accept the submissions of MUR Shipping concerning the calculation of any economic loss on the basis of Attachment B to Mr Gutierrez’s opening submissions filed on 14 April 2021:
(a)Mr Gutierrez brought his employment to an end on 1 August 2018 (and before the intended termination of employment on 31 December 2018), with the result that he suffered no loss from the unlawful discrimination;[217]
(b)even if I were wrong in that assessment, Mr Gutierrez is not entitled to a payment on the basis of ongoing employment until 5 September 2019 (compare Attachment B, item 2) but only on the basis of notice of termination due under the contract of employment (a period of five weeks as required by law – see clause 11.1 of the contract of employment);[218]
(c)Mr Gutierrez is not entitled to a Consumer Price Index (CPI) increase in his salary (for the period from 1 January 2019 to 5 September 2019) as he had no contractual entitlement to a salary increase (let alone a salary increase tied to the CPI);[219]
(d)Mr Gutierrez is not entitled to a bonus (let alone a bonus of $4,551.72) as he had no contractual entitlement to a bonus,[220] and noting that the award of a bonus was dependent upon the exercise of a discretion by the Board of the parent company of MUR Shipping[221] and noting that Mr Gutierrez did not receive a bonus in some years;[222] and
(e)Mr Gutierrez is not entitled to superannuation payments calculated on his total remuneration (comprising basic salary and bonus) but only on his “basic salary”.[223]
[217] see MUR Shipping’s outline of opening submissions filed on 30 April 2021 (ROOS), [21.1] (CB: 99).
[218] see also ROOS, [21.2] (CB: 99); see further ASOC, [27A(a)].
[219] compare Attachment B, item 2; compare also clause 6 of the contract of employment (CB: 106); see also ROOS, [22.1] (CB: 100).
[220] compare Attachment B, item 3; compare ROOS, [22.2] (CB: 100.
[221] see Mr Getty’s Cross Examination (4 May 2021 (T109.07 – T109.08)).
[222] see Mr Gutierrez’s Cross Examination (3 May 2021 (T61.19)); Mr Getty’s Cross Examination (4 May 2021 (T105.38 – T015.39)).
[223] compare Attachment B, item 4; compare clause 7 of the contract of employment (CB: 106); compare also ASOC, [8(c)] (CB: 16C); Amended Defence, [8(c)].
Mr Gutierrez has also failed to mitigate his loss by failing to:
(a)continue working for MUR Shipping in the period from 1 August 2018 to (at least) 31 December 2018 in circumstances where he had worked professionally and effectively (and without difficulty) with Mr Getty, Mr Smith and another MUR Shipping employee, Ms de Havilland, from 1993 to 2018;[224] and
(b)start working for his daughter in her financial planning firm (so as to ease back to work).[225]
[224] see Mr Gutierrez’s Cross Examination (3 May 2021 (T87.17 – T87.05)); Mr Getty’s Cross Examination (T103.06 – T103.10)).
[225] compare Mr Gutierrez’s Cross Examination (3 May 2021 (T88.28 – T88.42; T89.32 – T989.43)).
General damages
Mr Gutierrez relies on Oracle Corporation. However:
(a)the orders for general damages made on appeal ($100,000) reflected the extent of the injuries of the victim in that case[226] and the significant findings of the conduct towards the victim;[227]
(b)the Court stated (or implied) that the amount of general damages made in one case did not automatically translate to the amount awarded in a later case;[228] and
(c)the Court stated that it was dangerous to rely on a range of past awards in assessing the quantum of general damages.[229]
[226] see Oracle Corporation at [81], [118] per Kenny J (with whom Besanko and Perram JJ agreed (at [119]).
[227] see Richardson v Oracle Corporation Australia Pty Limited (2018) 232 IR 31 at [1], [16], [118]-[143], [148], [211] per Buchanan J).
[228] see Oracle Corporation at [102] per Kenny J (with whom Besanko and Perram JJ agreed).
[229] see Oracle Corporation at [90] per Kenny J (with whom Besanko and Perram JJ agreed).
Mr Gutierrez relies on Naidu per Adams J. However:
(a)the orders made at first instance against the employer were set aside on appeal;[230]
(b)the order concerning general damages (of $150,000) made at first instance was based on conduct of a manager that the employer described as “indefensible” and “outrageous” and led to the dismissal of the manager;[231] and
(c)the order concerning general damages made at first instance reflected the fact that the ability of the employee to work had been “substantially, if not entirely, destroyed”, the prospects of recovery were “relatively slight” and the employee was to remain “an emotional cripple for the rest of his life”.[232]
[230] see Nationwide News Pty Limited v Naidu (2007) 71 NSWLR 471 at Order 2; see also at [426].
[231] see Naidu at [4] per Adams J.
[232] see Naidu at [299] per Adams J.
Other cases provide an indication of an appropriate amount for general damages:
(a)in Kerkofs v Abdallah,[233] Judge Harbison as Vice President of the Victorian Civil and Administrative Tribunal awarded the applicant $130,000 for general damages for sexual harassment, including unwanted touching of her breasts and attempts to remove her bra, that resulted in a post-traumatic stress disorder and a major depressive disorder.[234] Judge Harbison noted that the conduct was extremely predatory that caused a significant psychological reaction of a long term nature to a young victim with the rest of her life in front of her;[235]
(b)in Evans v Ikkos Holdings Pty Ltd,[236] Judge Farrell as Deputy President of the South Australian Employment Tribunal awarded the applicant $30,000 for general damages for sexual harassment, including unwanted physical conduct on multiple occasions, that resulted in an adjustment disorder. Judge Farrell noted at [159] that conduct was not of the most serious kind and did not occur over a period of time. Judge Farrell also noted at [165] that the claim of $150,000 for general damages was excessive;
(c)in Hill v Hughes,[237] Judge Vasta awarded the applicant $120,000 for general damages for “relentless”, “unwarranted”, “threatening”, “grave” and “despicable” conduct of the respondent[238] of an exploitative nature[239] that resulted in an adjustment disorder[240] (an awarded upheld on appeal[241]). Judge Vasta noted at [158] and [193] the “power imbalance” was of particular relevance. Judge Vasta also noted at [230] that the personality of the applicant had been significantly and adversely impacted; and
(d)in Orchard v Higgins,[242] Member Cuthbertson of the Tasmanian Anti-Discrimination Tribunal awarded the applicant $25,000 for general damages for sexual harassment that occurred over some months, including unwanted physical conduct and name calling, that did not lead to a serious psychiatric illness or ongoing psychological distress.[243]
[233] [2019] VCAT 259.
[234] at [6]-[17], [176]-[182], [206], [248], [254], [268].
[235] at [261], [263]-[265].
[236] [2019] SAET 222.
[237] (2019) 287 IR 86.
[238] at [148], [241], [245], [251], [261].
[239] at [148], [241].
[240] at [229].
[241] Hughes v Hill [2020] FCAFC 126.
[242] [2020] TASADT 11.
[243] at [2], [322].
MUR Shipping submits that the appropriate amount of general damages is no more than $10,000, given that:
(a)in the case of Mr Gutierrez, there was (in reality) a single instance of discriminatory conduct (on 19 July 2018);
(b)in the case of Mr Gutierrez, he was able to state to Mr Smith that MUR Shipping was (in his view) acting “illegally”,[244] that MUR Shipping should obtain advice[245] and that they should discuss the position of MUR Shipping further,[246] thereby indicating that he was clear headed, even if upset or distressed;
(c)Mr Gutierrez has been restricted from his long term hobby of playing golf due to financial constraints and due to a knee injury;[247]
(d)Mr Gutierrez has been able to maintain appropriate standards of dress and self-care,[248] eat and clean up without restriction,[249] undertake physical activities (such as going for walks and visiting the library)[250] and play card games, watch sports and use social media;[251] and
(e)the psychological impact is an adjustment disorder which will not have ongoing effects.[252]
[244] see Mr Gutierrez’s first affidavit, [35] (CB: 35).
[245] see Mr Gutierrez’s first affidavit, [35] (CB: 35; Mr Smith’s affidavit, [24] (CB: 69).
[246] see Mr Gutierrez’s first affidavit, [35] (CB: 35); see also Mr Smith’s affidavit, [24] (CB: 69).
[247] see Dr Kaplan’s affidavit, annexure RMK2, page 3 (CB: 251); Dr Kaplan’s affidavit, annexure RMK4, page 3 (CB: 260); see also Mr Gutierrez’s Cross Examination (3 May 2021 (T85.03 – T85.12)).
[248] see Dr Kaplan’s affidavit, annexure RMK2, page 3 (CB: 251); Dr Kaplan’s affidavit, annexure RMK4, page 3 (CB: 260).
[249] see Dr Kaplan’s affidavit, annexure RMK2, page 3 (CB: 251); Dr Kaplan’s affidavit, annexure RMK4, page 3 (CB: 260).
[250] see Dr Kaplan’s affidavit, annexure RMK2, page 3 (CB: 251); Dr Kaplan’s affidavit, annexure RMK4, page 3 (CB: 260); see also Mr Gutierrez’s Cross Examination (3 May 2021 (T86.46; T87.12)).
[251] see Dr Kaplan’s affidavit, annexure RMK2, page 3 (CB: 251); Dr Kaplan’s affidavit, annexure RMK4, page 3 (CB: 260); see also Mr Gutierrez’s Cross Examination (3 May 2021 (T86.44; T87.03 – T87.07)).
[252] see Extract from DSM-5, page 287 (Exhibit R2).
It is said to be usual for interest not to be awarded on non economic loss.[253] It is, however, a matter within the discretion of the Court. The particular terms of state law do not carry a necessary implication for different terms of federal law.[254] In my view interest has been properly claimed and should be awarded.
[253] see also Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 at [71] per Macfarlan JA.
[254] For present purposes, s 211 of the of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Causation
I find that Mr Gutierrez suffered a mild adjustment disorder. The cause of the adjustment disorder was the employment discussion on 19 July 2018.[255] Mr Gutierrez has wrongly interpreted the discussion with Mr Smith on 19 July 2018 as the termination of his employment. In reality, the cause of the adjustment disorder was the conduct of MUR Shipping in proposing a future change to Mr Gutierrez’s terms of employment and a future change to the nature of his duties. The cause of the adjustment disorder was in my view the Retirement Discussions, the making of the Offer and the direction of Redeployment.
[255] see Dr Kaplan’s affidavit, annexure RMK2, page 2 (CB: 250); Dr Kaplan’s affidavit, annexure RMK4, page 5 and page 6 (CB: 262, 263).
Breach of contract
Mr Gutierrez alleges that MUR Shipping breached the Notice Term, the Anti-Discrimination Term and the Health and Safety Term of the contract of employment on 19 July 2018 by indicating that it intended to terminate the contract on 31 December 2018.[256] I accept that MUR Shipping did not breach the contract.
[256] see ASOC, [23].
Repudiation
Mr Gutierrez alleges that the claimed breach of the contract of employment was a repudiation[257] which he accepted on 1 August 2018.[258] However, there was no breach of contract on 19 July 2018 and so there was no repudiation on 19 July 2018. The purported acceptance of a non-repudiation was (of itself) an ineffective legal act.
[257] see ASOC, [25].
[258] see ASOC, [25].
Constructive dismissal
In the further alternative, Mr Gutierrez claims that he was constructively dismissed by a forced resignation on 1 August 2018.[259] The forced resignation was apparently due to the discriminatory treatment of MUR Shipping.[260]
[259] see the letter from the solicitors for Mr Gutierrez to MUR Shipping dated 1 August 2018, page 2 (Mr Gutierrez’s first affidavit, annexure AG7 (CB: 152)).
[260] see the letter from the solicitors for Mr Gutierrez to MUR Shipping dated 1 August 2018, page 2 (CB: 152)
However:
(a)there is no evidence to suggest that MUR Shipping invited Mr Gutierrez to resign or provided him with an ultimatum of resignation or dismissal;
(b)on the evidence, Mr Gutierrez was the only person that contemplated or proposed resignation (through his letter from his solicitors dated 1 August 2018);[261]
(c)on the evidence, MUR Shipping did engage in discriminatory treatment and raised the option of Mr Gutierrez changing the terms of employment in the future to an annual contract;[262]
(d)at the time of resignation on 1 August 2018, Mr Gutierrez had retained lawyers to act for him (from 27 July 2018)[263] and it was open for Mr Gutierrez to resist or oppose a resignation through such lawyers; and
(e)Mr Gutierrez requested MUR Shipping to obtain advice on its position and to talk again but Mr Gutierrez resigned before MUR Shipping had communicated its position after obtaining advice and before MUR Shipping had talked to him again.
[261] CB: 152.
[262] see Mr Smith’s affidavit, [24] (CB: 69).
[263] see Mr Gutierrez’s Cross Examination (3 May 2021 (T72.40; T74.19 – T74.20)).
Additionally:
(a)a constructive dismissal is conduct by an employer inimical to the continuance of the contract of employment;[264]
(b)a constructive dismissal is behaviour towards an employee that entitles the employee to treat the employment at an end;[265]
(c)the existence of a constructive dismissal is determined objectively;[266]
(d)the existence of a constructive dismissal is not determined by reference to the subjective assessment of Mr Gutierrez;[267]
(e)the putting of a proposal by an employer to an employee, even a proposal objected to in strong terms by the employee, is not conduct inimical to the continuance of the contract of employment;
(f)the provision by an employer of notice of termination of employment to an employee, with the amount of notice being in excess of the contractual requirement, is not conduct inimical to the continuance of the contract of employment; and
(g)the prospect of termination of employment by the employer being “around the corner”, but the point not yet being reached, is not conduct inimical to the continuance of the contract of employment.[268]
[264] see, for example, Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 at [141] per Allsop J; Hem v Cant (2007) 159 IR 113 at [21] per Finkelstein J; Re Kilcran [2014] FCAFC 6 at [84], [85] per Besanko, Foster and Farrell JJ.
[265] see, for example, Thomson at [141] per Allsop J; Hem at [22] per Finkelstein J; Re Kilcran at [84] per Besanko, Foster and Farrell JJ.
[266] see, for example, Thomson at [141] per Allsop J; Re Kilcran at [84] per Besanko, Foster and Farrell JJ; see also Koutalis v Pollett [2015] FCA 1165 at [43]-[44] per Rares J.
[267] see, for example, Ramos v Good Samaritan Industries [2013] FCA 30 at [136] per Barker J; Koutalis at [43] per Rares J; Power v Robot Trading Company Pty Limited [2013] FCCA 21 at [70]-[71] per Judge Burchardt.
[268] see Re Kilcran at [85] per Besanko, Foster and Farrell JJ.
Finally, a claim of constructive dismissal must be assessed in light of the express terms of the contract of employment. The contract of employment conferred on the Managing Director of MUR Shipping the right to assign duties to Mr Gutierrez and to impose limitations and restrictions on duties of Mr Gutierrez from time to time.[269] To the extent that Mr Gutierrez complains about the proposal that he train Ms Fernandes in the accounts role, Mr Smith had the contractual right to assign Mr Gutierrez the duties of training Ms Fernandes. The exercise of that right might, as here, give rise to a claim of discrimination but it does not support a claim of constructive dismissal.
[269] see Mr Gutierrez’s first affidavit, annexure AG1, page 1, clause 4.1 (CB: 105).
Causation
In any event, no breach of contract caused any loss to Mr Gutierrez. On 1 August 2018, Mr Gutierrez stated that he was resigning (albeit that he sought wrongly to characterise the resignation as a constructive dismissal). The cause of the loss of income to Mr Gutierrez from 1 August 2018 was the act of resignation.[270]
[270] see also ROOS, [26] (CB: 100).
Redundancy
Mr Gutierrez claims that his position was made redundant on or about 1 August 2018 and that he is entitled to redundancy pay under s 119 of the Fair Work Act.[271] Mr Gutierrez relies on the fact that MUR Shipping did not appoint anyone to the position of Chief Accountant on or after 1 August 2018.[272]
[271] see ASOC, [27A].
[272] see ASOC, [26B].
The claim is inconsistent with the primary case of Mr Gutierrez that his employment was terminated at a meeting on 19 July 2018.
In any event, an employee is only entitled to redundancy pay if:
(a)the employment is terminated at the “initiative” of the employer;[273] and
(b)the employment is terminated “because” the employer no longer requires the job done by the employee to be done by anyone;[274]
[273] see s 119(1)(a) of the Fair Work Act.
[274] see s 119(1)(a) of the Fair Work Act.
The employment was terminated at the initiative of Mr Gutierrez, not MUR Shipping, by Mr Gutierrez resigning from employment. As a result, Mr Gutierrez is not entitled to redundancy pay.
Additionally, the employment was not terminated because MUR Shipping no longer required the job done by anyone. As at 1 August 2018, MUR Shipping wished for Mr Gutierrez to remain in his position of Chief Accountant and to perform the position until his anticipated retirement in September 2019. As at 1 August 2018, MUR Shipping had not distributed the functions, duties and responsibilities of Mr Gutierrez to other persons[275] such that as at 1 August 2018 Mr Gutierrez was not surplus to the requirements of the business. As a result, Mr Gutierrez is additionally not entitled to redundancy pay.
[275] see Mr Smith’s Cross Examination (4 May 2021 (T153.17; T153.36; T153.41 – T153.42)).
Finally, there is a distinction between a redistribution of functions, duties and responsibilities of an employee that results in the termination of employment of that employee (a redundancy) and a redistribution of functions, duties and responsibilities of an employee after a termination of employment of that employee on independent grounds (a non-redundancy). There was a re-distribution of duties but it occurred after Mr Gutierrez had resigned[276] and after he had left.[277] The re-distribution thus occurred after Mr Gutierrez had ceased employment on independent grounds.
[276] see Mr Smith’s Cross Examination (4 May 2021 (T153.17)).
[277] see Mr Smith’s Cross Examination (4 May 2021 (T153.36; T153.41 – T153.42)).
CONCLUSION

Mr Gutierrez has succeeded in establishing that he was discriminated against in the course of his employment by reason of his age. He took offence at being treated less favourably than his intended replacement Ms Fernandez and being subjected to pressure, as he saw it, to retire. However, Mr Gutierrez chose to resign his employment when there was no need to do so. He could have continued in his employment, at least until the end of 2018 and probably until his intended retirement date at his 70th birthday. This presupposes that he would have rejected the proffered change to his employment contract. Unless MUR Shipping had taken steps to terminate Mr Gutierrez’s employment early, or make his position redundant, it would have been forced to follow its previous acceptance on his then current terms and conditions of his employment.
It follows that Mr Gutierrez has not suffered any economic loss by reason of the conduct of MUR Shipping. He was, however, affronted and offended by the way he was treated and he should receive damages to compensate him for his hurt feelings. There is also some evidence of a mild adjustment disorder. In my view, an appropriate award of damages for non economic loss is $20,000 and an order for interest up to judgment. He should also receive an apology. 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 application will be otherwise dismissed.
I will hear the parties as to costs.

I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.
Associate:
Dated: 1 December 2021

File number(s):	SYG 2845 of 2019
Judgment of:	JUDGE DRIVER
Date of judgment:	1 December 2021
Catchwords:	HUMAN RIGHTS – Age discrimination – whether applicant was treated less favourably in his employment because of his age, whether the contract of employment was breached and whether his position was made redundant considered – discrimination established – no breach of contract and no redundancy established EMPLOYMENT LAW – Fair Work – claim for redundancy benefits and penalty dismissed
Legislation:	Age Discrimination Act 2004 (Cth) ss 14, 15, 18 Australian Human Rights Commission Act 1986 (Cth) ss 46PD, 46PF, 46PH, 46PO Federal Circuit and Family Court of Australia Act 2021 (Cth) s 211 Fair Work Act 2009 (Cth) ss 117, 119, 546
Cases cited:	Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Buittendag v Ravensthorpe Nickel Operations Pty Limited [2012] WASC 425 Chen v Monash University [2016] FCAFC 66 Coles Supermarkets Australia Pty Limited v Fardous [2015] NSWCA 82 Dibb v Commissioner of Taxation (2004) 136 FCR 388 Evans v Ikkos Holdings Pty Ltd [2019] SAET 222 Ewin v Vergara [2014] FCAFC 100 Fetherston v Peninsula Health [2004] FCA 485 Gama v Qantas Airways Limited (No 2) [2006] FMCA 1767 Haider v Hawaiian Punch Pty Limited [2015] FCA 37 Hem v Cant (2007) 159 IR 113 Hill v Hughes (2019) 287 IR 86 Hughes v Hill [2020] FCAFC 126 Jones v Department of Energy and Minerals (1995) 60 IR 304 Kerkofs v Abdallah [2019] VCAT 259 Koutalis v Pollett [2015] FCA 1165 McDonald v Parnell Laboratories (Aust) Pty Ltd(2007) 168 IR 375 Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618 Nationwide News Pty Limited v Naidu (2007) 71 NSWLR 471 Orchard v Higgins [2020] TASADT 11 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 Poniatowska v Hickinbotham [2009] FCA 680 Power v Robot Trading Company Pty Limited [2013] FCCA 21 Qantas Airways Limited v Gama (2008) 167 FCR 537 Ramos v Good Samaritan Industries [2013] FCA 30 Re Kilcran [2014] FCAFC 6 Re Termination, Change and Redundancy Case (1984) 8 IR 34 Reurich v Club Jervis Bay Ltd [2018] FCA 1220 Richardson v Oracle Corporation Australia Pty Limited (2014) 223 FCR 334 Richardson v Oracle Corporation Australia Pty Limited (2018) 232 IR 31 Suridge v Boral Window Systems Pty Ltd [2012] FWA 3126 The Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64 Thompson v Big Bert Pty Ltd trading as Charles Hotel (2007) 168 IR 309 Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32 Watts v Australian Postal Corporation (2014) 222 FCR 220 Wotton v State of Queensland (No 5) [2016] FCA 1457 Wotton v State of Queensland (No 6) [2017] FCA 245
Division:	Division 2 General Federal Law
Number of paragraphs:	179
Dates of hearing:	3-5 May, 9, 11 June 2021
Place:	Sydney
Counsel for the Applicant:	Ms K Edwards
Solicitor for the Applicant:	HNT Legal
Counsel for the Respondent:	Mr A Gotting
Solicitor for the Respondent:	Kingston Reid

SYG 2845 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ALEX GUTIERREZ Applicant
AND:	MUR SHIPPING AUSTRALIA PTY LIMITED Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	1 DECEMBER 2021