Federal Court of Australia

Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The order made by Judge Driver on 1 December 2021 that “Pursuant to s 46PO(4)(d) the respondent shall pay to the applicant general damages of $20,000” be set aside and in lieu thereof order: “Pursuant to s 46PO(4)(d) the respondent shall pay to the applicant general damages of $90,000.”

3.    The respondent pay the appellant’s costs of the appeal.

4.    Within 14 days of these orders, the appellant file and serve any written submissions of no more than 4 pages on the issue of the assessment of damages for economic loss addressing bases (3)-(5) as identified in the judgment at [103] (and which were raised in the proceedings at first instance by the respondent in opposition to the appellant’s calculation).

5.    The respondent file and serve any submissions in answer of no more than 4 pages within a further 14 days.

6.    The appellant file any submission in reply of no more than 2 pages within 7 days thereafter.

7.    Any party wishing to be heard in relation to the submissions in orders 4-6 is to notify the associate to Justice Burley by the time identified in order 6, failing which the question will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    This is an appeal from the orders and judgment made by a judge of the Federal Circuit and Family Court of Australia (Division 2) in Gutierrez v MUR Shipping Australia Pty Limited [2021] FedCFamC2G 56 (1 December 2021).

2    The primary judge made: (1) a declaration that the respondent, MUR Shipping Australia Pty Ltd, committed unlawful discrimination against the appellant, Alex Gutierrez, contrary to ss 14 and 18(2)(a) and (d) of the Age Discrimination Act 2004 (Cth) (AD Act); (2) an order that MUR issue an apology to Mr Gutierrez pursuant to s 46PO(4)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act); (3) an order that MUR pay Mr Gutierrez general damages of $20,000 plus interest; and (4) an order that the application otherwise be dismissed.

3    Mr Gutierrez contends that the primary judge erred in making order (3) and in failing to make an order that MUR pay damages for economic loss. He does not, however, challenge the findings made by the primary judge which led to the declaration in order (1) or challenge the findings of fact that led to that conclusion. Rather, the appeal is brought on three broad bases: first, that the award of general damages of $20,000 was manifestly inadequate and was affected by errors of fact and law (grounds 1 and 2); secondly, that the primary judge erred in failing to make an award of damages for economic loss (grounds 3 and 4); and thirdly, that the primary judge erred in failing to find that the respondent had brought about his termination from his employment because of his age by reference to s 18(2)(c) of the AD Act, either by constructive dismissal or a breach of a work health and safety term in his contract with the respondent (ground 5).

4    Mr Gutierrez was represented at the appeal by K Edwards and S McIntosh of counsel. MUR was represented by A Gotting of counsel.

5    For the reasons set out below, I find that the appeal must be allowed with costs. I find that Mr Gutierrez is entitled to an award of $90,000 for general damages and is entitled to an amount for economic loss. I will make directions for the parties to provide short further submissions addressing the quantum of that economic loss. My provisional view is that it should be in the amount claimed by Mr Gutierrez, but some adjustment may be necessary.

2.    THE DECISION BELOW

6    The primary judge records that Mr Gutierrez was born on 5 September 1949 and commenced employment with a predecessor of the business of MUR on 15 June 2003. He signed a contract of employment with MUR, then known as SSM Australia Pty Limited, on 13 February 2004 after having commenced employment with MUR on 1 August 2003. His position was as Chief Accountant.

2.1    The primary judge’s summary of the submissions

7    In summarising the contentions advanced by Mr Gutierrez ([35]-[42]), the primary judge noted his evidence and submissions that:

(1)    In around February 2018 the then Managing Director of MUR, Brian Getty, told him that the company had a retirement age of 65 and asked Mr Gutierrez to tell him when he would retire. He responded by saying that there was no mandatory retirement age in Australia and making him retire based on age was unlawful. Mr Gutierrez told him that he would give Mr Getty three months’ notice of his retirement.

(2)    In early March 2018, Mr Getty told Mr Gutierrez that Dorin Fernandes from MUR’s affiliated office in Dubai was coming to visit, and shortly thereafter he participated in a conversation with Mr Getty, Mr Smith and Ms Fernandes in which he was asked to explain to her what he did.

(3)    Later in March 2018 Mr Gutierrez was informed that Ms Fernandes would take over from him, even though he had not given any firm date for his retirement. He told Mr Getty that he did not understand why MUR was looking to engage someone to replace him when he had not yet retired, to which Mr Getty replied “I know you have a retirement unit in Manila”.

(4)    Mr Gutierrez then felt compelled to give a retirement date, which he gave as July 2019.

(5)    In April 2018 Mr Gutierrez was informed that Ms Fernandes was to start work that month.

(6)    In May or June 2018 Mr Gutierrez obtained leave to take paid time off to update his skills. He told Mr Smith, who replaced Mr Getty as Managing Director in July 2018, that he was educating himself further so that he could continue working after MUR “kicked him out”.

(7)    On 19 July 2018 Mr Gutierrez was informed by Mr Smith that his contract of employment would come to an end on 31 December 2018 and that he would be on a new contract to train Ms Fernandes from 1 January 2019. Mr Gutierrez informed Mr Smith that what he was doing was illegal and left the meeting in distress (the employment discussion).

(8)    On 24 July 2018 Mr Gutierrez sent an email to Mr Smith in the following terms:

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.

(9)    Mr Gutierrez contended that at no time after sending this email did MUR respond to inform him that he was incorrect to consider: that his employment was scheduled to end on 31 December 2018; that thereafter he would be on a fixed term contract as a contractor rather than an employee; that MUR considered that he should retire because he was 65; or that he was being offered a contract in order to train Ms Fernandes to take over his position. Mr Smith’s response to the email was that he would “take it up with the board”.

(10)    In advising Mr Gutierrez that it would bring his contract of employment to an end in December 2018, MUR repudiated the contract.

(11)    On 1 August 2018 Mr Gutierrez’s solicitors sent a letter to MUR informing it that its action in advising Mr Gutierrez that it would bring his ongoing employment to an end in December 2018 was a clear repudiation of his employment that Mr Gutierrez accepted, thereby bringing his employment to an end.

(12)    From the date of the discussion on 19 July 2018, Mr Gutierrez’s health deteriorated rapidly and he was told to take some time off given the stress reaction that the discussion had caused.

(13)    If MUR had responded at any point after 19 July 2018 to bring Mr Gutierrez back into the fold, these proceedings would likely not have been commenced.

8    In summarising the factual claims advanced by Mr Gutierrez, the primary judge identified by reference to [29] of the amended statement of claim four types of direct discrimination under ss 14 and 18(2) of the AD Act alleged against MUR, being: first, that MUR held discussions with him in February 2018 and March 2018 over his retirement plans in circumstances where he was reminded that he was over 65 years of age (Retirement Discussions); secondly, that in about March 2018 MUR informed Mr Gutierrez that the position of Chief Accountant had been offered to Ms Fernandes, another employee (Offer); thirdly, that MUR had on 23 April 2018 directed Mr Gutierrez to train Ms Fernandes (Redeployment); and, fourthly, that MUR had on 19 July 2018 terminated, or given notice of termination, of the contract of its employment with Mr Gutierrez (Termination).

9    The primary judge identified Mr Gutierrez’s allegation (identified in [33] of his statement of claim) of indirect discrimination pursuant to ss 15 and 18(2) of the AD Act as being the imposition of a condition by MUR that its employees retire once they are over the age of 65 years (Condition).

10    The primary judge recorded that Mr Gutierrez claimed general damages of $300,000 as a consequence of suffering a significant psychiatric injury as a result of the discriminatory treatment he had received, 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. In this regard Mr Gutierrez relied on the evidence of Robert Kaplan, forensic psychiatrist. He also claimed damages for economic loss, including salary increases, bonuses, annual leave and long service leave, for the period of time he would have continued to work, being from 1 August 2018, the date he accepted the repudiation, until September 2019, being the date he intended to retire. The amount claimed was $142,215.56.

11    The primary judge recorded MUR’s submissions in response on the question of liability, which included denials of engagement in any discriminatory conduct and specific denials that it made the Offer, that it directed the Redeployment or that it initiated or implemented the Termination. It also denied imposing the Condition.

12    The response of MUR to the claimed loss was that on the evidence of Mr Gutierrez (denied by MUR), his employment was not terminated on 19 July 2018 but was to continue until 31 December 2018 and was thereafter to be changed to an annual contract. It was Mr Gutierrez, not MUR, who brought the employment to an end. MUR submitted that Mr Gutierrez wrongly asserted and accepted repudiation of the contract on 1 August 2018. MUR submitted that, as a consequence, he suffered no loss from any unlawful discrimination.

13    Regarding the economic loss claim, MUR submitted that Mr Gutierrez had no contractual entitlement to a salary increase or bonus, was not paid a bonus in each year of employment, and that loss and damage does not usually extend to the loss of annual leave and long service leave that would have accrued if employment continued.

14    MUR further submitted that Mr Gutierrez failed to mitigate his claimed economic loss in circumstances where he was able to perform other paid word in the period from 1 August 2018 to 5 September 2019 and was offered an annual contract on the same remuneration and it was reasonable for him to accept and work pursuant to the annual contract from 1 January 2019 to 5 September 2019.

15    MUR submitted that the general damages claim advanced by Mr Gutierrez was excessive.

2.2    The primary judge’s resolution

16    The primary judge found at [111]:

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.

17    After summarising the evidence and allegations relevant to the Retirement Discussions in February 2018 and March 2018 the primary judge rejected Mr Gutierrez’s claim that they had the effect of placing pressure on him to nominate an early retirement date, finding at [122] (footnotes omitted):

Mr Gutierrez claims that the Retirement Discussions had the effect of placing pressure on him to nominate an early retirement date. However:

(a) Mr Gutierrez decided to retire in September 2019 when he attained the age of 70 years;

(b) Mr Gutierrez nominated to Mr Getty an intention to retire in September 2019 (the time that he attained 70 years of age);

(c) Mr Gutierrez did not complain to MUR Shipping over any alleged pressure on him to nominate an early retirement date;

(d) Mr Gutierrez sought to “tease” Mr Getty during one of the discussions by asking whether there was an incentive to retire, 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).

18    The primary judge also rejected Mr Gutierrez’s claims that he had been informed by MUR of the Offer to Ms Fernandes to take his position as Chief Accountant and that in April 2018 he had been directed to train Ms Fernandes as alleged in the Redeployment.

19    The primary judge also did not accept that MUR had terminated the employment of Mr Gutierrez on 19 July 2018. He found at [138] that Mr Gutierrez’s own evidence was that he had been told on 19 July 2018 that the Board had decided to terminate his contract effective 31 December 2018, not immediately. Mr Gutierrez’s response was to inform Mr Smith that he should “check it out” because such conduct was “illegal” and that they should “talk again”. The primary judge concluded that Mr Gutierrez did not regard that MUR had indicated in that meeting what was to be its final position. The primary judge found that Mr Smith did not at that meeting inform Mr Gutierrez that the Board had decided to terminate his employment per se, but that it “would like to change his contract basis to an annual contract” (emphasis added). The primary judge noted in this regard that Mr Gutierrez had subsequently attended work for several days and had not acted on the basis that his employment had been terminated.

20    Nor did the primary judge accept Mr Gutierrez’s secondary position, which was that MUR had acted in breach of the contract of employment on 19 July 2018 by indicating its intention to terminate the contract on 31 December 2018, instead finding that none of the three specific breaches of his contract of employment that were alleged had been made out (at [140]-[144]).

21    However, the primary judge did find that MUR engaged in age discrimination. He said:

145    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.

146    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.

22    In considering whether MUR had engaged in the four types of proscribed action earlier identified by reference to [28] of the statement of claim, the primary judge found:

148    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). There is no evidence that MUR Shipping had such an intention. 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. On the version of events of Mr Gutierrez, which I prefer, Mr Smith informed him that was to be placed on a contract or an annual contract.

149    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.

23    It may be noted that in the idiom of the primary judgment, none of the Retirement Discussion, the Offer nor the Redeployment may be said to have featured in the discrimination found. The primary judge earlier found that the Retirement Discussions placed no pressure on Mr Gutierrez. He indicated, in response to a request, that he had decided to retire in September 2019 when he turned 70 (see [17] above). The primary judge also found that there was no evidence that Ms Fernandes had been offered Mr Gutierrez’s position, and as such that Mr Gutierrez had not in April 2018 been informed of such an offer, so that the Offer allegation was not established. He also was not satisfied that the evidence demonstrated that in April 2018 Mr Gutierrez had been directed to train or did train Ms Fernandes to take his position, although in July 2018 he was so informed, as the last sentence in [149] indicates.

2.3    Loss or damage

24    In considering the question of damages, the primary judge said (footnotes omitted):

152    ... 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.

153    I accept that MUR Shipping did not initiate or implement the Termination. The Termination did not cause loss or damage.

154    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. 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. 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).

25    In relation to damages for economic loss, the primary judge found at [155] that as it was Mr Gutierrez who voluntarily brought his employment to an end on 1 August 2018 (having wrongly asserted repudiation of the contract), he suffered no loss from unlawful discrimination by reason of that act. The primary judge noted that if he was wrong in this conclusion, then Mr Gutierrez would not in any event be entitled to payments until 5 September 2019 (when he turned 70) but only to pay for five weeks’ notice in accordance with his contract of employment. The primary judge also found that Mr Gutierrez was not entitled to a Consumer Price Index increase in his salary, a bonus or superannuation payments beyond what was calculated only on his “basic salary” (at [155](c)-(e)).

26    In relation to general damages, the primary judge gave a summary of the parties’ submissions, including their respective positions in relation to comparable awards of damages in cases. In this regard he referred to Richardson v Oracle Corporation Australia Pty Limited [2014] FCAFC 82; 223 FCR 334 and Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471, to which he was referred by Mr Gutierrez, and several other cases to provide an indication of an appropriate amount.

27    Under the heading “Causation” the primary judge said (footnotes omitted):

162    I find that Mr Gutierrez suffered a mild adjustment disorder. The cause of the adjustment disorder was the employment discussion on 19 July 2018. 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.

28    The primary judge cross referenced in a footnote the affidavit evidence of Dr Kaplan for the proposition in the second sentence of [162]. The final sentence of [162] is inconsistent with earlier findings of the primary judge and is addressed in more detail in section 4.2.2 below.

29    The primary judge found that MUR had not acted in breach of the contract of employment or repudiated that contract ([163]-[164]). He rejected Mr Gutierrez’s alternative claim that he had been constructively dismissed on 1 August 2018 and also rejected his claim to redundancy pay pursuant to s 119 of the Fair Work Act 2009 (Cth) ([166]-[170]).

30    The primary judge concluded as follows:

176    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.

177    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.

3.    THE STATUTORY AND LEGAL CONTEXT

31    Sections 14 and 15 of the AD Act respectively provide definitions of direct and indirect discrimination on the ground of age. Section 18 relevantly provides:

Discrimination in employment

(1)    It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s age:

(a)    in the arrangements made for the purpose of determining who should be offered employment; or

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

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

(2)    It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s age:

(a)    in the terms or 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.

…

32    Section 46PO(4) of the AHRC Act confers power on the court to make orders, as it thinks fit, including an order for damages by way of compensation for the loss and damage suffered by a victim of “unlawful discrimination”. It provides:

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.

33    The primary judge accepted that Mr Gutierrez was entitled to damages by way of compensation for the offence and affront to his feelings caused by the discrimination that he suffered in the course of his employment by reason of his age. He also found that there was evidence of a “mild adjustment disorder” as a consequence of the discrimination, awarding, as I have noted, general damages in the amount of $20,000 plus interest.

34    In an appeal such as the present, which is by way of rehearing, an allowance must be made for the fact that the trial judge has advantages not shared by the appellate court; Fox v Percy [2003] HCA 22; 214 CLR 118 at [20]-[31] (Gleeson CJ, Gummow and Kirby JJ), [65]-[67] (McHugh J). Whilst the appellate court must make up its own mind on the facts, the court does not proceed as if it were trying the case at first instance. There is a need for the appellant to show error on the appeal, since the task of the appellant court is to correct such error; Oracle at [62] (Kenny J), citing Knight v Beyond Properties Pty Ltd [2007] FCAFC 170; 242 ALR 586 at [20] (French, Tamberlin and Rares JJ). In so doing, the appellate court must take into account and weigh the advantages held by the trial judge; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [28] (Allsop J).

4.    GROUNDS 1 AND 2 – GENERAL DAMAGES

4.1    The submissions

35    In ground 1 Mr Gutierrez contends that on the basis of the facts as found by the primary judge, the award of $20,000 in general damages is manifestly inadequate, citing Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126; 277 FCR 511 at [47] (Perram J, Collier and Reese JJ agreeing). He submits that having found at [162] that the cause of his adjustment disorder was not only the employment discussion on 19 July 2018 but also the Retirement Discussions, the Offer and the Redeployment, the award of $20,000 was inadequate on the facts decided, which were at least as serious as the contraventions in Oracle. He submits that the primary judge erred in his assessment by wrongly having regard to the seriousness of the conduct of MUR, rather than the impact of the conduct upon Mr Gutierrez himself, and in failing to have regard to relevant factors including the duration of the misconduct (from February 2018 until August 2018), that it brought an end to his long and faithful period of employment and that he developed a psychological injury that has persisted for many years involving personality change and, according to Mrs Gutierrez, a miserable life together.

36    MUR contends that the primary judge awarded general damages for hurt feelings, but not general damages for pain and suffering. The amount awarded was proportionate to the injury and within the range of an appropriate award. It submits that the primary judge appropriately took into account the apology at [177] in considering relief and, contrary to the submission advanced by Mr Gutierrez, did not have regard to the seriousness of the conduct in its calculations.

37    In ground 2 Mr Gutierrez contends that the failure to award adequate general damages was infected by five identified errors of fact and law:

(a)    in failing to assess that the evidence of Dr Kaplan justified a general damages award of more than $100,000, given that the appellant had been unable to work since the discrimination occurred;

(b)    in determining that his adjustment disorder was “mild” in the face of the evidence of Dr Kaplan and the lay evidence;

(c)    in having regard to matters of contract law in determining general damages;

(d)    in failing to give reasons as to why Mr Gutierrez’s submissions as to the appropriate extent of damages were rejected; and

(e)    in failing to give any reasons as to why the evidence of Mr Gutierrez and Mrs Gutierrez as to the personal impact of the discrimination on him were rejected.

38    Mr Gutierrez submits that the Court on appeal is in as good a position as the primary judge to assess the evidence of Dr Kaplan and Mrs Gutierrez, as neither were cross-examined, and Mr Gutierrez was not the subject of any adverse credit finding.

39    In relation to (a) and (b), Mr Gutierrez submits that the Court erred in making a finding that Mr Gutierrez suffered from a “mild” adjustment disorder in the face of the evidence of Dr Kaplan that made no suggestion that it was “mild” and also in disregarding the opinion of Dr Kaplan that Mr Gutierrez would not be able to return to work.

40    In response, MUR submits that the primary judge was not required to accept unchallenged opinion evidence of an expert (here, Dr Kaplan) where it is not cogent and may conclude that it is inaccurate. MUR contends that the finding of the primary judge that Mr Gutierrez had a “mild” adjustment disorder was a shorthand reference to the less severe form of disorder that he suffered in comparison to other disorders, which was accurate given the evidence of his capacities. Nor, MUR submits, was it erroneous for the primary judge to find that Mr Gutierrez was able to work, having regard to the evidence given by Mr Gutierrez.

41    In relation to (d) and (e), Mr Gutierrez submits that his own evidence of the impact of the discriminatory treatment visited upon him were relevant factors to be taken into account by the primary judge. He makes a similar submission in relation to the failure on the part of the primary judge to make any meaningful reference in the decision as to why it did not take into account the evidence of Mrs Gutierrez, which was uncontested and which also went to the impact of the discriminatory conduct on the appellant.

42    In response, MUR submits that the primary judge stated his reasons briefly but effectively and explained why the award of $20,000 was made and why Mr Gutierrez’s submissions at trial were rejected. It submits that the primary judge was not obliged to mention every aspect of the loss or hurt and humiliation suffered, citing Oracle at [47] (Kenny J). MUR submits that the primary judge rejected the evidence of Mr and Mrs Gutierrez as to the extent of impact of the harm suffered, preferring the objective evidence, such as the statement of attainments, to the subjective assertions of these witnesses.

43    In relation to (c), Mr Gutierrez relies on his submissions before the primary judge as to the error of law. MUR contends that whilst the primary judge referred to some principles of contract law relating to damages when considering and assessing compensation for economic loss at [155(b)], he did not apply those principles when considering general damages.

4.2    Consideration

4.2.1    Introduction

44    It is convenient first to address an issue arising from the way that Mr Gutierrez in his submissions incorrectly characterises the reasoning of the primary judge in relation to liability before turning to ground 2.

4.2.2    The primary judge’s liability finding

45    In [149] of his reasons the primary judge found that two types of proscribed action had been established by Mr Gutierrez, the first in relation to s 18(2)(a) of the AD Act because MUR raised with him the prospect that his terms of employment were prospectively to be changed to his detriment by terminating his ongoing contract of employment and placing him on a fixed contract until his chosen retirement date, and the second in relation to s 18(2)(d) because Mr Gutierrez was disrespected in his employment because his own word as to his retirement was not respected, but rather a fixed term was to be imposed. He was further demeaned by having to train his replacement, Ms Fernandes.

46    Contrary to the submissions advanced by Mr Gutierrez, I do not consider that the primary judge found at [162] that the discrimination commenced with the Retirement Discussions, the Offer, and carried on from then to the Retraining and then the Termination. It is the case, however, that the primary judge’s finding at [162] as to the cause of the “mild adjustment disorder” is perplexing and requires close consideration.

47    That paragraph states first that the cause of the adjustment disorder was the employment discussion on 19 July 2018 because of the conduct of MUR in proposing a future change to Mr Gutierrez’s terms of employment and a future change to the nature of his duties. This indicates a view that the age discrimination conduct itself was short-lived, because the primary judge found that Mr Gutierrez elected to resign from his employment on 1 August 2018 having erroneously concluded that MUR had on that day repudiated his contract of employment. However, in the final sentence of [162] the primary judge states that the cause of the adjustment disorder was the Retirement Discussions (in February and March 2018), the making of the Offer (in March 2018) and the direction of Redeployment (in April 2018), thereby suggesting ongoing age discrimination over a longer period. The final sentence is internally inconsistent with the rest of the paragraph. It is also inconsistent with the primary judge’s earlier reasoning where he rejects Mr Gutierrez’s claims that he had been placed under pressure to retire (at [122]), finds that Mr Gutierrez had not been informed of the Offer, or indeed that any such Offer was made (at [123]-[134]), and in effect finds that Mr Gutierrez had not been directed to train Ms Fernandes at least prior to April 2018 (at [135]-[137], see also [39], [90]). Furthermore, it is inconsistent with the primary judge’s finding at [149] of the two types of proscribed action established, which are referable to the 19 July 2018 employment discussion and not the earlier conduct or conversations.

48    Accordingly, contrary to the submission advanced by Mr Gutierrez, having regard to the whole of the judgment, in my view the last sentence of [162] does not accurately represent the findings of the primary judge.

49    When read as a whole, and in particular paragraphs [111]-[112], [146], [148], [149], [152], [153], [155], [162], [176] and [177], the relevant findings of liability for age discrimination in the judgment are (Age Discrimination as Found):

(a)    That on 19 July 2018 Mr Smith made an offer to Mr Gutierrez on behalf of MUR to the effect that his employment would cease on 31 December 2018 and that thereafter until his nominated retirement age of 70 (on 5 September 2019) he would be placed on a fixed term contract ([146], [148], [149]);

(b)    The offer was rejected by Mr Gutierrez who was offended by the way he perceived he was being treated ([152]);

(c)    However, it was Mr Gutierrez who brought about his resignation ([155]). He wrongly interpreted the discussion with Mr Smith as the termination of his employment ([162]) although he could have continued his employment with MUR until his intended retirement date at his 70th birthday ([176]);

(d)    The cause of the adjustment disorder was the conduct of MUR on 19 July 2018 in proposing a future change to Mr Gutierrez’s terms of employment and a future change to the nature of his duties ([162], [177]);

(e)    Mr Gutierrez was affronted and offended by the way he was treated and he should receive damages to compensate him for his hurt feelings and also an apology (177]).

50    None of these findings are challenged in the grounds of appeal.

4.2.3    The primary judge’s assessment of general damages

51    The primary judge considered a number of authorities before arriving at the conclusion that general damages should be assessed in the amount of $20,000. In this regard, at [157] he distinguished the award of $100,000 in Oracle: first by reference to the nature of the injuries of the victim in that case observing, not incorrectly, that the amount of general damages made in one case did not automatically translate to the amount awarded in a later case, and secondly by reference to the “significant findings of the conduct towards the victim”. The primary judge at [158] made similar observations in distinguishing Naidu.

52    It is of course correct to compare and, if appropriate, contrast factual findings as to the extent of injury suffered in assessing compensable harm in comparable cases in consideration of the correct allocation of damages. No two cases will be precisely the same and each must be considered on its own facts. However, to suggest, as the primary judge appears to, that the seriousness of the conduct of a defendant towards a victim, separately from a consideration of the damage caused by that conduct, is relevant to the assessment of general damages reflects error. At the point of the assessment of damages, the question is the amount which can fairly be regarded as reasonable compensation for the injuries and disabilities which a plaintiff has sustained (O’Brien v Dunsdon (1965) 39 ALJR 78 at 78 (Barwick CJ, Kitto, Taylor JJ); Oracle at [90] Kenny J), not the manner in which the harm was caused or egregiousness by which it was inflicted.

53    The primary judge considered that four other cases (advanced below by MUR) provided a better indication of an appropriate indication. The primary judge noted at [159] (footnotes omitted):

(a)    in Kerkofs v Abdallah [[2019] VCAT 259], 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. 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;

(b)    in Evans v Ikkos Holdings Pty Ltd [[2019]] SAET 222], 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 [[2019] FCCA 1267; 287 IR 86], Judge Vasta awarded the applicant $120,000 for general damages for “relentless”, “unwarranted”, “threatening”, “grave” and “despicable” conduct of the respondent of an exploitative nature that resulted in an adjustment disorder (an awarded upheld on appeal). 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 [[2020] TASADT 11], 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.

54    The primary judge found that the harm that Mr Gutierrez suffered was (a) hurt and offence by the way he perceived he was being treated as expendable for which he should receive damages for his hurt feelings (at [152], [177]); and (b) an adjustment disorder that did not preclude him from working (at [154]) which the primary judge characterised at [162] and [177] as a “mild adjustment disorder”. In calculating damages, the primary judge considered that one relevant factor was that he was to receive an apology which it considered to be “at least as valuable” to Mr Gutierrez as the payment of damages (at [177]).

4.2.4    Ground 2 – incorrect assessment of the evidence of harm

55    Mr Gutierrez submits that the primary judge fell into error by effectively amending Dr Kaplan’s medical report, downgrading Dr Kaplan’s assessment from “adjustment disorder” to “mild adjustment disorder”, failing to list the most serious symptoms listed in his report and failing to take into account Dr Kaplan’s expressed view that Mr Gutierrez would be unable to work until the adjustment disorder was resolved, which was unlikely to occur while the litigation continued. He submits that this error was compounded by the fact that Dr Kaplan’s evidence was not challenged in cross examination and that the primary judge gave no reasons for not accepting that evidence.

56    Two reports of Dr Kaplan were in evidence, both dated 7 May 2019 (though the second was mistakenly labelled 7 May 2019 and was in fact dated 29 May 2019). I refer below to the second report as Dr Kaplan’s report and the first report as Dr Kaplan’s first report.

57    Dr Kaplan’s report records the history provided to him at a consultation on 7 May 2019 where he records:

(1)    That Mr Gutierrez had a meeting on 1 August 2018 where the managing director of MUR told him of its intention to terminate him in December, and thereafter he would be placed on a short-term contract;

(2)    Mr Gutierrez was “blind-sided” by the dismissal, having been given no warning. He took the rest of the day off. He visited his GP in “a state of shock”:

He was devastated, could not sleep and went off his food. He was overwhelmed with feelings of anger, frustration and anxiety. He felt humiliated and rejected. He was distracted and could not concentrate. He could not understand why he was terminated after 25 years of faithful service.

(3)    In relation to his current mental state the report includes the following:

His mood is depressed. He is irritable and snappy but tries to hide this from his family by making jokes. He is withdrawn, does not go out or socialise. He finds conversations difficult. He is not suicidal but describes his attitude as “like Soylent Green – the movie where people were euthanized and turned into biscuits”. He keeps reflecting on how he planned retirement, now he has financial difficulties and little chance of getting work at his age.

(4)    In relation to his abilities, the report includes that Mr Gutierrez cannot afford to play golf and is hampered by a sore knee. He has no problems with dress and self-care. He has breakfast, goes for a walk and has lunch. He plays card games, checks Facebook and sports results on the internet. He reads books and goes to the library. He only goes out to see the chemist, news agent and doctor. He no longer goes to church. His memory and concentration are poor. He gets distracted, loses track when he is reading and has a reduced attention span. His thought content is focused on being terminated from work and his future. He has dinner with his family and goes to bed after 11pm. His relationship with his family is good. He does not abuse drugs, drink or gamble.

(5)    Under the heading “Information Provided” the report states: “Dr N Marry: Unfit to work from 26 July” (which I note, was inaccurate, because Dr Marry’s report said “from 26/07/2018 to 31/07/2018”). It also refers to a mental health plan referred with anxiety/depression to Dr Lutchman, psychologist (which was not in evidence before the primary judge).

(6)    Under the heading “Assessment” are 14 dot-point sentences. After repeating some of the history earlier summarised, the report provides (emphasis removed):

Mr Gutierrez was devastated to be terminated. His reaction was one of shock, anger, frustration and despair. It was a blow to his confidence and he reacted with feelings of humiliation and failure.

The matter is now going to a court … Mr Gutierrez is in a state of limbo and is concerned about the outcome.

He has seen his doctor, goes to a psychologist and is taking antidepressants. This helped to steady his condition but he remains symptomatic.

His past history is excellent. He has a good relationship with his family, adapted well to life in Australia and enjoyed his work.

Mr Gutierrez has an Adjustment Disorder with depression and anxiety as a result of his termination from work.

Other factors … would not cause the AD.

Mr Gutierrez will remain symptomatic until his case is resolved. If there is an adverse finding, he will remain symptomatic.

…

The prognosis is, at best, mixed. If Mr Gutierrez wins the case, he will be left with enduring feelings of humiliation, rejection and failure; if he loses, he will be more depressed and this would be on a sustained basis.

(7)    In responding to “specific questions” posed by the solicitors for Mr Gutierrez, the report includes the following:

3.    The Adjustment Disorder arises as a whole from his termination by MUR Australia Pty Ltd; that is, the termination is 100% responsible for his condition.

4.    The prognosis is listed above.

a)    If Mr Gutierrez wins the case, he will be left with enduring feelings of humiliation, rejection and failure; if he loses, he will be more depressed and this would be on a sustained basis. It is not possible to be more specific about his recovery time.

…

c)    The claimant will not be able to work in any capacity until the Adjustment Disorder has resolved. As stated in the report, this will be incumbent on the outcome of his case and cannot be predicted with any accuracy at this stage. His incapacity arose from the time he learned of his termination.

58    Dr Kaplan’s conclusion that the adjustment disorder arises entirely from his termination by MUR, and his prognosis that Mr Gutierrez will not be able to work in any capacity until the adjustment disorder is resolved was significant evidence. The primary judge referred to part of it at [60], when summarising Mr Gutierrez’s submissions, and at [162], where he finds that the cause of the adjustment disorder was the employment discussion of 19 July 2018. However, it is apparent from the reasons expressed at [154] that the primary judge considered, contrary to the opinion of Dr Kaplan, that the adjustment disorder did not preclude Mr Gutierrez from working. In the absence of any reasoned explanation as to why this expert evidence was rejected, it is difficult to understand the basis upon which the primary judge’s conclusion was reached, particularly as Dr Kaplan was not cross-examined. It is also apparent from the primary judge’s reasons that he considered that the adjustment disorder suffered by Mr Gutierrez should be characterised as “mild”. However, again the reasons do not explain the basis for this conclusion.

59    MUR submits that it may be assumed that the primary judge elected to reject the evidence of Dr Kaplan as to the capacity of Mr Gutierrez to work in favour of his own assessment of the evidence of Mr Gutierrez. It submits that neither Mr nor Mrs Gutierrez stated in their affidavits that Mr Gutierrez was unable to work, and that the appellant did not report to Dr Kaplan that he was unable to work. It also submits that the Dr Kaplan’s first report did not say that Mr Gutierrez was unable to work and it was only later, without providing any reasons at all, that Dr Kaplan expressed this conclusion in his report. It submits that in those circumstances the primary judge was not required to find that the appellant was unable to work.

60    However, the submissions advanced by MUR are based on conjecture on its part as to how the primary judge reasoned. The judgment gives no expression to the points that it raised. In fact, it made no material reference to the evidence of Mrs Gutierrez at all, and, save as I have identified, made no substantive comment going to Dr Kaplan’s report.

61    A trial judge is not required to accept evidence merely because it is unchallenged in cross examination, however, the fact that evidence is unchallenged may provide a cogent reason for its acceptance. As observed in Hull v Thompson [2001] NSWCA 359 at [21] (Rolfe AJA, Sheller JA and Davies AJA agreeing), “prima facie, if there is no cross-examination of an expert … there is no basis for a Judge not to accept the unchallenged evidence”. However, as the court there noted, it depends on the evidence in question, and where a report is ex facie illogical or inherently inconsistent, where it is based on an incorrect or incomplete history, or where the assumptions on which it is founded are not established, the report may be rejected or subject to criticism or doubt. But “in the absence of some such matters, there is no rational reason not to accept unchallenged evidence”; see Taupau v HVAC Constructions (Queensland) Pty Ltd & Ors [2012] NSWCA 293 at [130] (Beazley JA, Macfarlan and Basten JJA agreeing); Lloyd v Thornbury [2019] NSWCA 154 at [152], [153] (Gleeson JA, Meagher and White JJA agreeing).

62    In Taupau the trial judge was left to make a determination on competing expert evidence of a technical kind without the benefit of cross-examination. Beazley JA said (Macfarlan and Basten JJA agreeing):

132.    … Nonetheless, a trial judge placed in that position by the parties, is required to analyse the evidence in order to make findings on the issue to which the experts’ evidence is directed. This may and usually does involve the acceptance of one expert or group of experts over another, not on the basis of a demeanour finding, which is unavailable when none of the experts is cross-examined, but on the cogency of the evidence, given the issues addressed.

133.     …The trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other: see Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 at [54] per Sheller JA. This approach to the consideration of expert evidence and the determination of issues to which the expert evidence related is well-established in Australian jurisprudence, as the summary of cases in Wiki v Atlantis Relocations demonstrates. See also Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [129]-[130] per Hayne J. It is also useful in this regard to refer to the comments of Bingham LJ in Eckersley v Binnie (1988) 18 Con LR 1 at 77-78:

“... save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons.”

…

135.    In my opinion, this approach applies a fortiori where there has been no cross-examination. There has to be a reasonable basis as to why some evidence is accepted and other evidence is not. In that regard, the evidence cannot be considered in isolation from other evidence. The cogency of the experts' evidence is dependent upon there being a basis established in the evidence for the views expressed. …

63    In my respectful view, the reasons of the primary judge do not elucidate why the opinion of Dr Kaplan as to Mr Gutierrez’s incapacity to work was implicitly rejected. It is not apparent to me that the primary judge grappled as he ought to have with the evidence of Dr Kaplan. The obligation to give reasons does not require that the primary judge mention and analyse every aspect of the evidence, but it must be sufficient to provide a basis for the decision; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270-271 (Mahoney JA), 282 (McHugh JA). That basis is not apparent here.

64    In this regard, I do not consider that the reasons offered by the primary judge at [154] address the question. That paragraph supplies two reasons for a finding that Mr Gutierrez’s adjustment disorder did not preclude him from working. The first is that in August 2018 and November 2018 Mr Gutierrez was issued statements of attainment for his completion of two, one day per week courses in the use of certain software which, it was concluded “indicates that the adjustment disorder did not preclude Mr Gutierrez from functioning in a normal way, including by attending work”. However, it is opaque as to how the primary judge reasoned to the conclusion that Dr Kaplan’s view was wrong. Attending full-time work is quite different to attending a day of training once a week over several weeks.

65    The second is that in the period from August 2018 to September 2019 Mr Gutierrez “had the capacity to work for his daughter … as a bookkeeper in a safe environment that would enable him to ease back to work (perhaps with the assistance of psychological counselling)”. The footnoted reference to the cross examination of Mr Gutierrez does not support the finding of capacity, and contains no concession on the part of Mr Gutierrez as to his ability to work. Although earlier in his oral evidence Mr Gutierrez gave evidence that he had hoped upon his retirement to work with his daughter, this did not address the position after he suffered from the adjustment disorder and depression diagnosed by Dr Kaplan. Again, nothing in this reasoning demonstrates why the opinion expressed by Dr Kaplan was rejected, or even considered.

66    Again, whilst the obligation to give reasons does not require a trial judge to mention and analyse every aspect of the loss of quality of life that Mr Gutierrez suffered, the absence of any reference to this aspect of Dr Kaplan’s report in my respectful view reflects error.

67    Mr Gutierrez also points to the fact that Mrs Gutierrez gave evidence in the form of an affidavit that went to her perception of the impact of the discrimination on her husband. She was not cross-examined. Mr Gutierrez submits that the primary judge, after referring to the fact of the evidence, made no substantive reference to its content at all, despite the fact that it provided cogent evidence of the effect of the harm the discrimination caused her husband in terms of his loss of enjoyment of life.

68    There is force in this criticism. The absence of any substantive reference to the evidence of Mrs Gutierrez in the context of a consideration of the harm that Mr Gutierrez claimed to have suffered gives further rise to a doubt that the primary judge properly grappled with the question of the prognosis made by Dr Kaplan in forming his assessment that Mr Gutierrez was not fit to work or the harm otherwise suffered by Mr Gutierrez. In her affidavit evidence Mrs Gutierrez gave evidence of:

(a)    her marriage to Mr Gutierrez since 1974 and having children and grandchildren;

(b)    his return from work on 19 July 2018 looking tired and stressed and being informed later in the evening that he considered that MUR had fired him because “someone took my job”;

(c)    how she observed that Mr Gutierrez had suffered distress as a result;

(d)    how she observed that whereas before that date Mr Gutierrez was a vibrant, social and happy man, afterwards he “is no longer the same man”, he did not socialise with his friends or his family anymore, he no longer played golf or enjoyed watching basketball and “has even lost interest in eating” whereas he always enjoyed his food;

(e)    how she has heard him saying “kill me now” and “I don’t feel like waking up in the morning anymore”. In addition, he never used to swear and now every other word is a swear word.

69    The assessment of general damages in the present case called, at the threshold, for the primary judge to make findings as to the harm that Mr Gutierrez suffered as a result of the Age Discrimination as Found. For the reasons given above, in my respectful view the primary judge erred by failing to assess properly the evidence of Dr Kaplan in reaching the conclusion that Mr Gutierrez was able to work and in concluding that the adjustment disorder suffered by Mr Gutierrez was “mild”. I also consider that the primary judge erred in failing to give any reasons as to why he rejected the evidence of Mrs and Mr Gutierrez as to the personal impact of the discrimination on him.

70    An appellate court ought not interfere with the sum of general damages fixed by a trial judge simply because it considers it would have fixed some other amount; Oracle at [76]. Before this Court can interfere with the award made by the trial judge, the Court must consider either that the judge acted on an error of principle, misapprehended the facts, allowed extraneous matters to affect the assessment, failed to take account of a material consideration, or that “the judge has made a wholly erroneous estimate of the damages suffered”: see House v The King [1936] HCA 40; 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ) and Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362 at 369 (Gibbs J); Oracle at [76] (Kenny J).

71    The conclusions that I have expressed above lead me to the view that the reasoning of the primary judge miscarried insofar as concerns his assessment of the liability on the part of MUR to general damages. Having regard to the nature of the claim, it is undesirable to remit the matter for consideration by another judge, the primary judge having retired from the bench since delivery of judgment. The transcript of evidence and documentary materials are before me in the present appeal and I consider it appropriate to reconsider the question of damages upon the materials available.

4.3    Reassessment of general damages on appeal

72    Section 46PO(4)(d) confers a power on the court to make orders, as it thinks fit, including an order for damages by way of compensation for the loss and damage suffered by a victim of “unlawful discrimination” – an expression that includes age discrimination in contravention of the AD Act.

73    In Clarke v Nationwide News Pty Ltd [2012] FCA 307; 201 FCR 389 at [337], Barker J noted that it was generally accepted that an order for damages by way of compensation for loss or damage suffered because of the conduct of a respondent may be made under s 46PO(4)(d) of the AHRC Act where actual loss or damage has been suffered and there is a causal connection between the loss or damage suffered and the respondent’s conduct; see also Reurich v Club Jervis Bay Ltd [2018] FCA 1220 at [351] (Markovic J).

74    In the present case, the primary judge found that an order for damages should be made because of age discrimination arising from hurt and offence by the way Mr Gutierrez perceived he was being treated as expendable, for which he should receive damages for his hurt feelings and an adjustment disorder that did not preclude him from working, which the primary judge characterised at [162] and [177] as a “mild adjustment disorder”. No challenge is made in this appeal to the finding of age discrimination, or to the finding that Mr Gutierrez suffered harm as a result.

75    In order to revisit the question of the appropriate sum of general damages it is necessary to review the materials that were before the primary judge.

76    The evidence in chief of Mr Gutierrez was that after the 19 July 2018 conversation his mental health declined significantly and that he suffered symptoms including uncontrolled anger and emotions, loss of concentration, tiredness, insomnia, depression, anxiety and paranoia. He said that after he fell out with MUR, he felt depressed, directionless and hopeless. From 11 August 2018 he began to see a psychologist, Dr Lutchman, every fortnight and then once a month. Dr Lutchman was not called to give evidence. Mr Gutierrez gave evidence that he felt like the company took away his choice as to when he would stop working and his freedom to make that choice. He did not see termination coming and felt that his 25 years of service was taken for granted.

77    Mr Gutierrez was asked in cross examination about the symptoms that he described to Dr Kaplan but was not materially challenged on the aspects of his current abilities that he described, which are set out in section 4.2.4 at [57(4)] above.

78    I have summarised above the evidence of Mrs Gutierrez, which addressed the change in Mr Gutierrez’s behaviour that she has observed since 19 July 2018.

79    I have also summarised the findings of Dr Kaplan, which are set out in section 4.2.4. The following points arising from his report warrant repetition. They are Dr Kaplan’s unchallenged conclusions:

(1)    That Mr Gutierrez suffers from adjustment disorder with depression and anxiety;

(2)    This arises entirely “from his termination by MUR Australia Pty Ltd; that is, the termination is 100% responsible for his condition”;

(3)    “If Mr Gutierrez wins the case, he will be left with enduring feelings of humiliation, rejection and failure; if he loses, he will be more depressed and this would be on a sustained basis. It is not possible to be more specific about his recovery time”;

(4)    Mr Gutierrez is seeing his doctor, goes to a psychologist and is taking antidepressants;

(5)    Mr Gutierrez will not be able to work in any capacity until the adjustment disorder has resolved. This will be dependent on the outcome of his case and cannot be predicted with any accuracy at this stage. His incapacity arose from the time he learned of his termination.

80    MUR submits that the adjustment disorder suffered by Mr Gutierrez may properly be characterised as “mild” and that Dr Kaplan provided no reasoning to support his conclusion that Mr Gutierrez would be unable to work. It submits that, as a consequence, the primary judge did not err in concluding that the harm that Mr Gutierrez suffered was no more than “mild”. However, for the reasons identified in section 4.2.4 above, absent evidence to contradict Dr Kaplan’s evidence, and absent any such matters put to Dr Kaplan in cross-examination, the Court would be slow to discount expert evidence of this nature. On the facts of the present case I do not consider that it is appropriate to do so. Dr Kaplan used no such adjective, and his opinions do not reflect that “mild” was a term that he would have used to describe Mr Gutierrez’s condition.

81    MUR submitted, by reference to Exhibit R2, that the psychological impact of an adjustment disorder “will not have ongoing effects”. The cited exhibit is apparently an extract from a book entitled “Diagnostic and statistical manual of mental disorders” published by the American Psychiatric Association. It is undated. On one page it identifies “Diagnostic Criteria” for Adjustment Disorders by reference to symptoms and what it says will amount to behaviourally significant evidence. This manual was not put to Dr Kaplan and no expert was called to give evidence as to its proper application. No weight can be given to the general statements to be found in it.

82    MUR further submits that the primary judge correctly set aside Dr Kaplan’s opinion evidence that Mr Gutierrez was unable to work on the basis that Mr Gutierrez had attended and passed two training courses in the months after his termination. However, the cross examination reveals that the training courses comprised one day a week over successive weeks, which in my view is a poor approximation for full time work. Nor can the cross examination be relied upon to support a conclusion that Mr Gutierrez accepted that he could have taken a position with his daughter’s business. The transcript does not support that contention. Furthermore, whilst Mr Gutierrez did not give evidence in terms that he was unable to work, the description that he gives of his symptoms readily gives rise to that inference. This was quite clearly the view that Dr Kaplan took when he gave his professional opinion that, having regard to his examination of Mr Gutierrez, he was not in a condition that would permit him to return to work. No cogent reason has been advanced on behalf of MUR that warrants setting that opinion to one side.

83    In his Amended Statement of Claim, Mr Gutierrez claimed general damages of “not less than $150,000”. On appeal, he repeats this claim, asserting in submissions an entitlement to an award of damages “much greater” than that awarded for pain and suffering in Oracle which was $100,000.

84    Justice Kenny considered in Oracle that the award of $18,000 of damages for sexual harassment was manifestly inadequate having regard to the nature and extent of Ms Richardson’s injuries, prevailing community standards, and therefore that the level of damages awarded by the trial judge was low and bespoke error (at [81]). In that case, the primary judge had found that Mr Tucker’s conduct occasioned Ms Richardson distress that was manifest in a noticeable change in her demeanour and in significant physical symptoms. His conduct caused her psychological injury: she suffered a chronic adjustment disorder with mixed features of anxiety and depression. This psychological damage was “not insignificant” (see [74]). The trial judge had found (at [209]):

I am satisfied that Mr Tucker’s conduct, over a period of some months, was very distressing for Ms Richardson, who did her best to deal with it alone for some considerable time. Her partner, friends and acquaintances noticed changes in her demeanour. Ms Richardson noticed changes in her own physical condition, including the management of her diabetes, which seemed to her attributable to her heightened feelings of stress and anxiety. There was no medical evidence to make this connection directly but I am prepared to take into account Ms Richardson’s own observations of her psychological and physical responses as being consistent with the medical evidence …

85    Justice Kenny found at [95] (Besanko and Perram JJ agreeing):

An award of damages by way of compensation under s 46PO(4)(d) of the AHRC Act is to compensate for the injury suffered by the person harassed: see Hall v A & A Sheiban at 256 (Wilcox J), 281 (French J). In making an award, a court necessarily has regard to the general standards prevailing in the community. As indicated above, other awards of general damages for injury of the kind suffered by Ms Richardson may provide some measure of manifest inadequacy since they may provide some guidance as to what contemporary courts have discerned as proper compensation for such an injury according to generally prevailing community standards. Cases in the field of personal injury may be particularly useful because the object of an award of damages for non-pecuniary loss in such cases is much the same as an award of damages under s 46PO(4)(d) of the AHRC Act: see O’Brien v Dunsdon at 78 and Teubner v Humble (1963) 108 CLR 491 at 507 (Windeyer J); and Qantas Airways Ltd v Gama at [96].

86    Her Honour then proceeded to review the resulting awards made in cases not concerning sexual harassment, where analogous injuries had been found, to demonstrate that whilst the award of $18,000 to Ms Richardson was in line with other awards in sexual discrimination cases, the outcome of sexual discrimination cases was out of step with awards made for damages suffered for pain and suffering and loss of enjoyment of life in other categories of case, such as damages for personal injury suffered as a result of negligence (at [96] – Amaca Pty Ltd v King [2011] VSCA 447; 35 VR 280), bullying and harassment in employment (at [99] – Willett v Victoria [2013] VSCA 76; 42 VR 571 and [101] in Swan v Monash Law Book Co-operative [2013] VSC 326; 235 IR 63) and misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) (at [105], referring to Walker v Citigroup Global Markets Pty Ltd [2006] FCAFC 101; 233 ALR 687 at [91] (Gyles, Edmonds and Greenwood JJ)). Her Honour concluded that the quantum of awards historically made in these other fields to successful claimants in situations “not wholly unlike Ms Richardson’s reveals a substantial disparity between the level of those awards and the typical compensatory damages provided to victims of sexual discrimination and harassment” (at [109]).

87    The facts in Oracle are, of course, different to those in the present case. Here, Mr Gutierrez had indicated to his employer that he intended to retire in the third quarter of 2019. The Age Discrimination as Found arose from a single conversation in July 2018. Mr Gutierrez misapprehended the effect of the conversation, with the consequence that he considered that his employment had been terminated. In that sense, it may be contended that the Age Discrimination as Found might have been a cause for the harm suffered, but was not the sole cause for that harm, part of the harm being Mr Gutierrez’s own misunderstanding that his employment had ceased.

88    However, in Oracle the Full Court considered that discriminatory conduct which contributed, but was not the sole contributor, to the onset of injury is a loss “suffered because of the conduct of the respondent”. Kenny J observed at [69] (Besanko and Perram JJ agreeing) that this proposition was accepted without question by French and Jacobson JJ in Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [99] in the course of applying s 46PO of the AHRC Act. Her Honour in Oracle went on:

69    Such an acceptance reflects the remedial nature of s 46PO(4)(d). In reflecting on s 82(1) of the Trade Practices Act 1974 (Cth), which was in its terms relevantly indistinguishable from s 46PO(4)(d), Hayne J explained in Henville v Walker at 509 [163] :

[S]eldom, if ever, will contravening conduct be the sole cause of a person suffering loss. Other factors will always be capable of identification as a cause of their loss … What the Act directs attention to is whether the contravening conduct was a cause. It does not require, or permit, the attribution of some qualification such as “solely” or “principally” to the word “by”.

(Emphasis in original)

(See also Henville v Walker at 482-483 [68]-[72] (Gaudron J).)

70    In I & L Securities Pty Ltd v HTW Valuers at 130 [62] Gaudron, Gummow and Hayne JJ elaborated that:

As was recognised in Henville v Walker there may be cases where it will be possible to say that some of the damage suffered by a person following the contravention of the Act was not caused by the contravention. But because the relevant question is whether the contravention was a cause of (in the sense of materially contributed to) the loss, cases in which it will be necessary and appropriate to divide up the loss that has been suffered and attribute parts of the loss to particular causative events are likely to be rare. Further it is only in a case where it is found that the alleged contravention did not materially contribute to some part of the loss claimed that it will be useful to speak of what caused that separate part of the loss as being “independent” of the contravention.

(Emphasis in original)

See also, in relation to damages for economic loss, Oracle at [177]-[179], [184]-[189] per Besanko and Perram JJ (Kenny J agreeing).

89    Accordingly, although Mr Gutierrez was found to have decided to terminate his contract of employment, and that decision did not form part of the Age Discrimination as Found, nevertheless the age discrimination was, if not the sole cause, plainly enough a cause of his subsequent inability to work and the symptoms described by Dr Kaplan, Mr Gutierrez and Mrs Gutierrez. In my view the effect of this evidence is to paint a picture of a man who has suffered considerable loss of amenity of life, including a diagnosed inability to work, loss of enjoyment of social aspects of his life, and an adjustment disorder with depression and anxiety. The primary judge found, and I would in any event find, that a material cause of this was the Age Discrimination as Found.

90    In Oracle, Kenny J noted several cases where damages were awarded as compensation for pain and suffering and loss of enjoyment of life. In Willett, the Victorian Court of Appeal (Tate and Priest JJ) substituted a jury award of $108,000 for $250,000 having regard to Ms Willett’s exposure to bullying and harassment. Ms Willett’s injuries were serious. At trial she was undergoing treatment in a psychiatric hospital following an attempted suicide. She suffered from an ongoing and persistent major depressive disorder which, while varying in severity from mild to moderate, affected her in an invasive way on a daily basis requiring significant doses of anti-depressant and associated medication which rendered her permanently incapacitated for her pre-injury work as a police officer, although she was able to work in another occupation. As summarised by Kenny J in Oracle at [100]:

Tate and Priest JJA observed (at [50]), “[t]he negligence of the respondent had thus … deprived [her] of the career she had chosen, in which she was proficient, and which she found fulfilling. In these circumstances, their Honours held (at [61]) that the jury verdict was “so small as to be unreasonable; so inadequate that no jury could reasonably have awarded them and out of all proportion to the severity of the circumstances of the case”. In reaching this conclusion, Tate and Priest JJA endorsed the statements in Amaca Pty Ltd v King that society places a greater value on the loss of enjoyment of life and the experience of pain and suffering than previously and that awards of damages for injury of this kind had increased: see Willett v Victoria at [79]-[80].

91    Kenny J also referred to Walker v Citigroup where, in an action for damages for misleading and deceptive conduct under the Trade Practices Act, the primary judge’s award of $5,000 was considered to be a significant under-assessment of loss, and replaced the award with the amount of $100,000, the harm attributable to that award being that Mr Walker’s marriage had broken down and he had lost the day-to-day company of his children in the year after the unlawful conduct in question. The Full Court accepting Mr Walker’s uncorroborated, but unchallenged evidence that he had suffered “a considerable dislocation of his life with serious long-term effects” as a result of the unlawful conduct (Oracle at [106]).

92    Having regard to the particular facts of this case, the evidence of Dr Kaplan and the evidence of Mr and Mrs Gutierrez, in my view the general damages that ought to be awarded are considerably less than those awarded in a case such as Willett, but the harm that he suffered might properly be regarded to be comparable with that identified in Oracle and Walker. Although there is necessarily an element of imprecision in the analysis, I consider that the appropriate award should also be $90,000.

4.4    Ground 1 – manifestly inadequate award

93    It is apparent from the reasons given above that I have preferred to address the appeal insofar as it concerns the claim for general damages by reference to particular errors in the reasoning of the primary judge rather than on the basis identified in ground 1. Having regard to my conclusion that the primary judge did err, and my substitution of the award of $20,000 with my own assessment, it is not necessary for me to address ground 1 separately.

5.    GROUNDS 3 AND 4 – DAMAGES FOR ECONOMIC LOSS

5.1    The submissions

94    In ground 3 Mr Gutierrez contends that the primary judge erred by failing to award damages for economic loss in his favour pursuant to s 46PO(4)(d) of the AHRC Act. He submits that the primary judge incorrectly concluded that, because Mr Gutierrez had elected to terminate his employment, no damages for economic loss were available. Instead, the evidence revealed that, as a result of the Age Discrimination as Found, Mr Gutierrez was unable to work and accordingly was entitled to damages for economic loss flowing from that loss. Mr Gutierrez contends that damages for breach of s 18(2)(a) and (d) of the AD Act are available for economic loss arising from the harm caused, citing Oracle.

95    MUR contends that the claim for economic loss advanced by Mr Gutierrez arose only when he ceased employment with MUR on 1 August 2018 and that the primary judge was correct to find that the appellant chose to resign on that date, with the consequence that the claimed economic loss was caused by the act of resignation rather than the act of discrimination. It submits that the primary judge was also correct to refuse compensation on this head on the secondary basis that Mr Gutierrez failed to mitigate his loss either by continuing to work for MUR or starting to work for his daughter.

96    In ground 4, Mr Gutierrez lists a number of specific errors of fact and law that Mr Gutierrez contends demonstrate error on the part of the primary judge in failing to award damages for economic loss. Having regard to the outcome of ground 3, it is unnecessary separately to address the matters raised in ground 4.

5.2    Consideration

97    In my view, ground 3 of appeal must succeed, with many of the observations made in relation to ground 2 being apposite in the context of this ground. The finding of the primary judge that Mr Gutierrez had brought about the cessation of his employment by incorrectly concluding that MUR had repudiated his contract ought not to have been the end of the enquiry. Had the primary judge correctly considered the evidence of Dr Kaplan and Mrs and Mr Gutierrez in relation to the Age Discrimination as Found, then he ought to have turned his mind to the fact that Mr Gutierrez was unable to work as a result of that discrimination. I have addressed this in detail in Section 4 above.

98    In this regard, it is apparent that, even though the primary judge found that Mr Gutierrez was not forced out of his employment with MUR as a matter of contract law, there is a sufficient causal link between MUR’s unlawful discriminatory conduct and Mr Gutierrez’s economic loss to warrant an award in that respect also. It is apposite to note that in Oracle, Besanko and Perram JJ said:

184    As far as causation is concerned, the High Court in Medlin v State Government Insurance Commission (1995) 182 CLR 1 (“Medlin”) considered a claim for economic loss in a case where a plaintiff suffered injuries in a motor vehicle accident and then decided to retire early. The plurality (Deane, Dawson, Toohey and Gaudron JJ) said (at 6-7):

The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.

185    The plurality said that causation may be established even though the immediate trigger for the loss and damage sustained by the plaintiff was his own decision to retire early. They said (at 10):

The necessary causation between a defendant’s negligence and the termination of a plaintiff’s employment, in the sense that the termination of the employment is the product of an accident-caused loss of earning capacity, can exist notwithstanding the fact that the immediate trigger of the termination of the employment was the plaintiff’s own decision to retire prematurely. If, for example, it appears that a plaintiff’s decision to retire prematurely would not have been made were it not for the fact that the effect of accident-caused injuries is that continuation in employment would subject him or her to constant pain and serious risk of further injury, it may well be that commonsense dictates the conclusion that the plaintiff’s decision to retire prematurely was a natural step in a chain of causation which suffices to designate, for the purposes of the law of negligence, the termination of the employment as a product of those injuries.

186    There is no reason why this analysis should not be applied to a decision to change employment following sexual harassment.

99    Equally, there is no reason why this analysis should not be applied in the circumstances of a case of age discrimination.

100    Indeed, in the present case, the evidence of the harm suffered by Mr Gutierrez, to which I have referred in section 4, indicates that the position is stronger in this case than that in Oracle, where Ms Richards decided to resign her position in order to take a job with a different employer. Here, the evidence indicates that Mr Gutierrez was incapable of working following the Age Discrimination as Found.

101    Nor in my view is there merit in the alternative argument advanced by MUR – and embraced by the primary judge at [156] – that Mr Gutierrez failed to mitigate his loss either by continuing to work with MUR or taking up work with his daughter. Neither was a course available to him having regard to his condition. Furthermore, as I have noted, no evidence indicated that there was a position available with his daughter for Mr Gutierrez to take.

102    In his Notice of Appeal, Mr Gutierrez contends that he should be awarded damages for economic loss in the amount of $142,215.56 between 1 August 2018 and 5 September 2019.

103    I was not addressed during the course of the appeal in relation to the calculation of this amount, although I was supplied with Mr Gutierrez’s submissions before the primary judge. Attachment A to those submissions sets out the calculation in detail. In its submissions before the primary judge MUR opposed the calculation of damages on the following five bases:

(1)    That Mr Gutierrez brought about the loss because he chose to terminate his contract;

(2)    Alternatively, he is not entitled to any more than 5 weeks’ pay, because his contract of employment provides that this is the notice that MUR was required to give;

(3)    That Mr Gutierrez is not entitled to any allowance for CPI increases as he had no contractual entitlement to a salary increase;

(4)    That Mr Gutierrez is not entitled to a bonus (calculated to be $4,551.72) as he had no contractual entitlement to a bonus; and

(5)    That Mr Gutierrez is not entitled to superannuation payments calculated on his total remuneration but only his basic salary.

Bases (1) and (2) may be set aside because the analysis of economic loss in the present case does not depend on a contractual analysis but arises as a matter of causation from the Age Discrimination as Found. However, I have not heard argument addressing (3)-(5). My present view is that the economic loss awarded to Mr Gutierrez should be $142,215.56 plus interest. However, I will make directions for the parties to provide short written submissions on the subject before concluding on the amount.

6.    GROUND 5 – ECONOMIC LOSS FOR TERMINATION OF EMPLOYMENT

6.1    Introduction

104    Mr Gutierrez advances in ground 5 an alternative argument to the effect that the primary judge erred in failing to find that MUR had brought about his termination because of his age, either by way of: (a) a breach of what is defined as “the Work Health and Safety Term”; or (b) constructive dismissal.

105    In relation to (a), at trial, Mr Gutierrez alleged that by indicating on 19 July 2018 that it intended to terminate his contract of employment on 31 December 2018, MUR acted in breach of the Health and Safety Term of its contract with him. This was identified in the statement of claim as an implied term of his contract of employment whereby MUR “would provide a safe workplace taking all reasonable steps to prevent risks to health and safety”. The primary judge accepted that the term alleged was to be implied, but found that MUR was not in breach of it for two reasons. First, because (at best, in favour of Mr Gutierrez’s case) MUR had given him over 5 months’ notice of termination, there was no breach. The primary judge found that the provision of notice of termination (without more) does not create a risk to health and safety and does not entail the provision of a non-safe workplace. Secondly, the primary judge found at [143] that Mr Gutierrez did not himself regard the proposal made by MUR on 19 July 2018, which was that his contract of employment end at the end of 2018 and be replaced by a fixed term contract, as a final position but rather as a proposal. As the primary judge found at [146] and [149], it was the proposal that there be an alternation of his employment status that amounted to age discrimination.

106    In relation to (b), at trial Mr Gutierrez alleged that he was constructively dismissed by a forced resignation on 1 August 2018. In this regard the primary judge made the following findings at [166]:

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);

(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;

(d)    at the time of resignation on 1 August 2018, Mr Gutierrez had retained lawyers to act for him (from 27 July 2018) 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.

107    In a series of ten discursive particulars appended to ground 5, supported by scant and sometimes contradictory submissions, Mr Gutierrez makes a number of allegations that the primary judge made findings that were said to be either unreasonable or were not supported by the evidence. None are specifically identified as having a relationship with either (a) or (b). In his submissions in reply, Mr Gutierrez abandoned the fifth particular.

6.2    Consideration

108    I find that neither of the grounds pleaded and none of the aspects of the grounds particularised in ground 5 have merit.

109    Mr Gutierrez first contends that the findings of the primary judge were so unreasonable, in light of his conclusion of breach of s 18(2)(a) and (c) of the AD Act and his own evidence of harm suffered, that they could not be made. I disagree. In light of the factual findings of the primary judge, in my view he was correct to conclude that there had been no breach of the Work Health and Safety Term. A breach of s 18(2) of the AD Act will not of itself bespeak a contractual breach. Furthermore, whether or not it may be considered that there is a breach of an obligation to take reasonable care of the health and safety of an employee when engaging in conduct that falls within the bounds of the contractual arrangement will depend on the degree to which the employer is aware of signs of the possibility that the employee will suffer psychiatric injury; Koehler v Cerebos (Australia) Ltd [2005] HCA 15; 222 CLR 44 at [36] (McHugh, Gummow, Hayne and Heydon JJ); Kozarov v Victoria [2022] HCA 12; 273 CLR 115 at [4]-[6] (Kiefel CJ and Keane J). However, that was not the case put to the primary judge and, had it been, none of the findings of the primary judge support a conclusion that it arises on the present facts.

110    The second particular is critical of the finding made by the primary judge at [166(a)] that there was no evidence that MUR invited Mr Gutierrez to resign or provided him an ultimatum of resignation or dismissal in circumstances where at [149] the primary judge “found that MUR had prospectively terminated” his contract. This contention involves a misreading of [149]. Correctly read in context of the judgment as a whole, the finding at [149] was that MUR proposed to change the terms of Mr Gutierrez’s contract, but this was not an ultimatum or final position. In response, the primary judge found that Mr Gutierrez chose to resign.

111    The third particular challenges a finding that Mr Gutierrez was not pressured to resign on the basis that this was not put to him in cross examination. However, the factual basis for the conclusion was evidence volunteered by Mr Gutierrez to the effect that during a conversation when it is said that MUR was pressuring him to resign, he had teased Mr Getty that he would want some incentive to volunteer a retirement date. The primary judge was free to draw the legal conclusion from the facts adduced during cross examination that Mr Gutierrez did not feel pressured at the time.

112    The fourth particular contends that the primary judge failed to make a series of findings in respect of the course of conduct in which MUR engaged to bring about the termination of his employment and its impact on him. However, the primary judge positively found that Mr Gutierrez had voluntarily resigned following the 19 July 2018 employment discussion based, inter alia, on a misunderstanding of the terms of his conversation with Mr Smith. He had earlier rejected the case advanced by Mr Gutierrez concerning the Retirement Discussions, the Offer and the Redeployment. No error has been demonstrated in this reasoning.

113    The sixth particular contends that an assertion by the primary judge that succession planning was behind the decision to employ Ms Fernandes was “unsustainable on the evidence”. This goes nowhere. The primary judge cites in his judgment (at [125]) a passage of the evidence of Mr Getty which supports the proposition.

114    The seventh particular contends that the primary judge erred in failing to accept Mr Gutierrez’s submissions as to the correct characterisation of the employment discussion. The contention is without merit. The primary judge was in a position to consider the evidence advanced and form a view as to the purpose and effect of the meeting.

115    In the eighth particular Mr Gutierrez contends that the primary judge failed to give reasons as to why, having regard to his long and faithful years of service and the “course of conduct in which the respondent engaged”, he failed to conclude that Mr Gutierrez was constructively dismissed. I reject this contention also. The primary judge adequately explained the basis upon which he concluded that Mr Gutierrez was not constructively dismissed.

116    In his ninth and tenth particulars, Mr Gutierrez contends that the primary judge “failed to address at all the admissions made under cross examination” that the steps taken to get him to nominate a retirement date were because of his age and contends that the primary judge failed to give any reasons as to why he did not accept Mr Gutierrez’s submissions going to the credit of MUR’s witnesses. These particulars distil to a challenge to the credit findings made by the primary judge. No error has been demonstrated.

7.    DISPOSITION

117    For the reasons set out more fully above, Mr Gutierrez succeeds in his appeal on the basis of grounds 2 and 3. I have assessed his entitlement to general damages to be in the amount of $90,000. He is also entitled to damages for economic loss. My provisional view is that those damages should be assessed in the amount of $142,215.56 and that he is entitled to interest on the amount of damages. However, I will make directions for the parties to provide short written submissions addressing bases (3)-(5) which were raised below by MUR in opposition to Mr Gutierrez’s calculation.

Associate:

Dated:    4 May 2023