Arya v Kone Elevators Pty Ltd
[2020] FCCA 2693
•29 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARYA v KONE ELEVATORS PTY LTD & ANOR | [2020] FCCA 2693 |
| Catchwords: HUMAN RIGHTS – Allegation of unlawful discrimination in employment on the grounds of pregnancy – Court finds that the alleged discriminators had no knowledge of the pregnancy at material times – allegation of constructive dismissal not made out – application dismissed. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PH(1B), 46PO(1). Fair Work Act 2009 (Cth). Sex Discrimination Act 1984 (Cth), ss.5(1), 7(1), 14(2), 105, 106, 107. |
| Cases cited: Wotton v State of Queensland (No. 5) [2016] FCA 1457. |
| Applicant: | SUDHA ARYA |
| First Respondent: | KONE ELEVATORS PTY LTD |
| Second Respondent: | KATHLYN DANG |
| File Number: | MLG 3897 of 2018 |
| Judgment of: | Judge McNab |
| Hearing dates: | 18 December 2019, 16 and 17 July 2020 |
| Date of Last Submission: | 4 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 29 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Aufgang |
| Solicitors for the Applicant: | Russel Kennedy Solicitors |
| Counsel for the Respondents: | Mr J D’Abaco |
| Solicitors for the Respondents: | Bartier Perry Pty Ltd |
ORDERS
The application filed on 20 December 2018 be dismissed.
By 4.00pm on 14 October 2020 the Respondents file and serve submissions, limited to 4 A4 pages, and a supporting affidavit in support of an application for costs.
By 4.00pm on 28 October 2020 the Applicant file and serve any submissions, limited to 4 A4 pages, and a supporting affidavit in response to the Respondents’ application for costs.
The question of costs be determined on the papers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 3897 of 2018
| SUDHA ARYA |
Applicant
And
| KONE ELEVATORS PTY LTD |
First Respondent
| KATHLYN DANG |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This decision considers an application made to this Court by Ms Sudha Arya (“the Applicant”) under s46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”). The application was filed before the Court on 20 December 2018 against KONE Elevators Pty Ltd (“the First Respondent” or “KONE Elevators”) and Ms Kathlyn Dang (“the Second Respondent”).
This matter first went to a conciliation conference held by the Australian Human Rights Commission (“the AHRC”) on 2 August 2018 where it did not resolve. The matter was terminated on 1 November 2018 by Delegate Peeligama under s46PH(1B)(b) of the AHRC Act, on behalf of the President of the AHRC. The application to this Court was then made.
Ms Arya alleges that she suffered unlawful discrimination under the Sex Discrimination Act 1984 (Cth) (“the Sex Discrimination Act”) and that there were breaches of the general protections provisions of the Fair Work Act 2009 (Cth) (“the Fair Work Act”), although the claims made under the Fair Work Act were not pursued at the hearing.
Background
Ms Arya was employed by KONE Elevators as a Credit Controller in their Melbourne office from 9 October 2017 until 2 August 2019. In this role, Ms Arya was responsible for reducing company debt by following up unpaid invoices through to resolution. In undertaking these duties, Ms Arya worked across both the ‘Doors’ Division and ‘Lifts Service’ Division. In addition, from approximately December 2017, Ms Arya assumed responsibility for aspects of an administration role in the Doors Division.
From February 2018, Ms Dang commenced work at the Melbourne office of KONE Elevators on a six month project as the Acting Regional Controller for the South West Region. She was based in the Melbourne office, but also travelled to other offices around Australia. Her role required her to increase debt recovery and improve profitability. In this role she worked with Ms Arya, amongst other KONE Elevators employees, to “provide support and to assist…in the recovery of outstanding amounts from customers of KONE” (Respondent’s written submissions dated 21 August 2020 at [2]).
The background to this matter is then disputed. Of the claims below, there is little dispute about the chronology, but there is a substantial amount of dispute between the parties about the content of the Applicant’s claims.
‘Discrimination on Grounds of Pregnancy in the Course of Employment’
The Applicant’s Submissions
Ms Arya claims that:
a)In the course of professional work discussions, Ms Dang asked her about her marital status and plans for having children on multiple occasions.
b)On or around 8 May 2018, her doctor informed her that she was pregnant.
c)On or about 9 May 2018, she informed Ms Dang about her pregnancy in the offices of KONE Elevators.
d)From the time she informed Ms Dang of her pregnancy, Ms Dang treated her less favourably than she had previously and in comparison to other employees who were not pregnant and were either maritally the same or different. Ms Dang also allegedly began acting negatively toward Ms Arya in a number of ways including, amongst other things, stopping regular conversations with Ms Arya, speaking to her in a condescending manner and responding to Ms Arya in a ‘cold way’.
e)On or around 23 May 2018, Ms Dang yelled at her at her desk in front of colleagues, including Ms Niomi Cashion (“Ms Cashion”). This incident was about not knowing how to do her job and that she was struggling, despite, as Ms Arya claims, the debt figures showing that she had been successful in her role of debt minimisation. Ms Arya claims that this incident occurred due to “…reasons which included, the Applicant’s pregnancy”
The Respondent’s Submissions
In relation to Ms Arya’s claims above, the Respondents collectively makes the following relevant submissions:
a)In relation to Ms Arya’s claim that Ms Dang asked her about her marital status and plans in relation to children, Ms Dang denies this claim saying that “she did not discuss personal matters with Ms Arya.”.
b)In relation to Ms Arya’s claim about informing Ms Dang about her pregnancy, Ms Dang denies this claim. Ms Dang claims that she only became aware of Ms Arya’s pregnancy after the Applicant had lodged a complaint with the AHRC on or after 11 July 2018 (“the AHRC complaint”).
c)In relation to Ms Arya’s claims about Ms Dang’s changing behaviour after Ms Arya informed Ms Dang of her pregnancy on 9 May 2018, Ms Dang denies these claims. Ms Dang claims that “[f]rom the outset, her working relationship with Ms Arya was polite and cordial…[she denies] that she spoke to Ms Arya in a condescending manner or treated her coldly”. Additionally, as stated above, Ms Dang claims that she was never told Ms Arya was pregnant and only found out after the AHRC complaint. As such, Ms Dang claims that her behaviour toward Ms Arya did not change generally and specifically did not change due to Ms Arya’s pregnancy.
d)In relation to the Ms Arya’s claims about the events that occurred on 23 May 2018, the respondents deny this claim to the extent that they say that Ms Dang “spoke sternly” to Ms Arya, after “Ms Arya took umbrage at being questioned and raised her voice” to Ms Dang.
‘Notification of redundancy, decision not to redeploy and performance warning’
The Applicant’s Submissions
On or around 8 June 2018 Ms Arya was informed by her doctor that her pregnancy had miscarried.
Ms Arya then claims that:
a)on or around 13 June 2018 she informed Ms Cashion of a tumour/pain/excessive bleeding, which Ms Cashion denies;
b)on or about 14 June 2018 she informed Ms Dang of her miscarriage and requested a day off on 15 June 2018 for a medical investigation to determine whether surgery would be required;
c)she took personal leave on 12 June 2018 and 15 June 2018 in relation to the miscarriage. It is common ground that Ms Arya took personal leave, but that she did not inform anyone in writing at KONE Elevators offices of her pregnancy or miscarriage until she submitted a complaint to Human Resources on 9 July 2018; and
d)on or around 26 June 2018 she and Ms Dang had a discussion during a meeting at the KONE Elevators offices. Ms Dang allegedly asked Ms Arya when she was proposing to start trying to fall pregnant again. Ms Arya told Ms Dang that she would likely try to fall pregnant again in the following two to three months. It should be noted that, it is common ground that Ms Arya did not inform anyone else at KONE Elevators’ offices of her desire to become pregnant again.
In response to Ms Arya telling Ms Dang that she would try to become pregnant again in the following months, Ms Arya claims that Ms Dang told her during the same discussion that:
a)Ms Arya wanted a position in the Lifts Division so that she could complete a year of work then take maternity leave;
b)Ms Arya was not career focussed;
c)Ms Arya did not have the necessary skills to work for KONE Elevators;
d)Ms Arya should resign as she had no reason to stay; and
e)Ms Arya should inform Ms Dang of her decision in relation to her resignation on 3 July 2018.
On or about 3 July 2018 during a meeting, which Ms Cashion attended as a witness at the behest of Ms Dang, Ms Dang, amongst other things:
a)criticised Ms Arya’s performance (despite Ms Arya allegedly performing her core duties successfully);
b)told Ms Arya to resign by 4 July 2018; and
c)told Ms Arya that if she did not resign, that she would place her on a three week performance improvement plan and then dismiss her.
It is common ground that following the meeting on 3 July 2018, Ms Dang then emailed Ms Arya saying that the Applicant had been given a verbal warning based on her current performance and that Ms Arya had until 10 July 2018 to resolve the issues that had been raised in the meeting.
The Respondent’s Submissions
In relation to Ms Arya’s claims above, the respondents collectively make the following relevant submissions:
a)in relation to Ms Arya’s claim that she informed Ms Dang of her miscarriage on 14 June 2018, Ms Dang denies being told of the Applicant’s miscarriage and claims she only became aware of the Applicant’s miscarriage following the AHRC complaint;
b)in relation to Ms Arya’s personal leave taken on 15 June 2018, both respondents claim that they knew Ms Arya took personal leave but did not know it was for a miscarriage and only received a medical certificate that stated Ms Arya took personal leave for a ‘medical condition’;
c)in relation to Ms Arya’s claims about the meeting between her and Ms Dang on 26 June 2018, Ms Dang denies having a discussion with Ms Arya about her future plans to become pregnant and claims that she instead asked Ms Arya “to keep a diary of her daily tasks and to document details of her calls to debtors on KONE’s SAP database”; and
d)in relation to Ms Arya’s claims about the meeting between her and Ms Dang on 3 July 2018, Ms Dang denies telling Ms Arya to resign or threatening to put her on a performance management plan and then dismiss her. Ms Dang claims she “raised concerns regarding aspects of Ms Arya’s work performance and gave her a verbal performance warning (subsequently confirmed in writing)”.
Complaint and Termination
On 9 July 2018, Ms Arya submitted a complaint to the Human Resources manager of KONE Elevators, Ms Andrea Barry (“Ms Barry”). The complaint alleged bullying and harassment by Ms Dang and Ms Cashion. KONE Elevators claims they investigated Ms Arya’s complaint and “formed the view it was not substantiated.”
Ms Arya also lodged a complaint with the AHRC on or around 5 July 2018. An email from the AHRC to Ms Arya dated 1 November 2018 indicates that the complaint was provided to KONE Elevators on 11 July 2018.
On 2 August 2018, an AHRC conciliation conference was held between the parties. As the parties could not agree on how to resolve the dispute through conciliation, Delegate Peeligama terminated the complaint on 1 November 2018.
On 2 August 2018, following the conciliation conference, Ms Arya sent a resignation letter to Ms Barry, which relevantly included the following passage:
“Please accept this letter as formal notification of my resignation from KONE Elevators Pty Ltd. I am resigning due to the discrimination, victimization, harassment and bullying I have faced causing me mental injury, emotional distress and constructive dismissal.
My last day with the company will be 30th August 2018. However unless the doctors approves I won’t be able to get back to work.”
KONE Elevators and Ms Arya agreed that her last day would be 2 August 2018, and that she would be paid notice in lieu of 4 weeks.
Ms Arya claims that she was constructively dismissed from her position at KONE Elevators, as noted in her resignation letter. The respondents submit that:
“During that [AHRC] conference, Mrs Arya chose to resign from her employment. She alleges that in all the circumstances, she was constructively dismissed – however no claim is made that this was in contravention of the SD Act. A constructive dismissal is not established on the facts.”
An application was then made to this Court on 20 December 2018. The matter was heard over three days, being 18 December 2019, 16 July 2020 and 17 July 2020. On the final day of the hearing the matter was part heard and the Court made an Order that parties file written closing submissions by 6 September 2020, with the matter adjourned for delivery of judgment after 6 September 2020.
The Alleged Contraventions
The Applicant claims:
a)Ms Dang discriminated against the Applicant on the basis of her pregnancy and/or potential pregnancy: see s7(1), s8 and s14(2) of the Sex Discrimination Act;
b)KONE Elevators is vicariously liable for the actions of Ms Dang as Ms Dang did not take all reasonable steps to ensure that its employees would not be discriminated against: see s105 – s107 of the Sex Discrimination Act; and
c)KONE Elevators constructively dismissed the Applicant, as she was effectively forced to resign, as evidenced by the Applicant resignation letter dated 2 August 2018, although this claim was not pursued during the final hearing.
Evidence
Applicant’s Evidence
During the hearing, the following persons gave evidence on behalf of Ms Arya:
a)Ms Arya, relying on an affidavit affirmed on 27 July 2019;
b)Mr Anirban Chatterjee, the Applicant’s husband, relying on a Statutory Declaration dated 27 July 2019;
c)Dr Akinsola Akinbiyi relying on an expert opinion report dated 25 July 2019;
d)Dr Linus Yiu-Man Ip who had prepared a medical report on 21 June 2019; and
e)Mr Stewart Henderson, an accountant employed by the First Respondent as Regional Financial Manager for the Southern Region between January 2016 and June 2018.
Respondent’s Evidence
The following persons gave evidence on behalf of the respondent:
a)Ms Dang, relying on an affidavit affirmed on 16 September 2019;
b)Ms Barry, Human Resources Business Partner at KONE Elevators, relying on an affidavit affirmed on 16 September 2019; and
c)Ms Cashion, Project Coordinator at KONE Elevators, relying on an affidavit affirmed on 16 September 2019.
The legislation
The application was made pursuant to provisions of the Sex Discrimination Act. Sections 7(1), 14(2), 105, 106 and 107 of the Sex Discrimination Act relevantly provide as follows:
Section 7 Discrimination on the ground of pregnancy or potential pregnancy
(1) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman's pregnancy or potential pregnancy if, because of:
(a)the aggrieved woman's pregnancy or potential pregnancy; or
(b)a characteristic that appertains generally to women who are pregnant or potentially pregnant; or
(c)a characteristic that is generally imputed to women who are pregnant or potentially pregnant;
the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.
…
Section 8 Act done for 2 or more reasons
A reference in subsection 5(1), 5A(1), 5B(1), 5C(1), 6(1), 7(1) or 7AA(1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.
Section 14 Discrimination in employment or in superannuation
…
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:
(a) in the terms or conditions of employment that the employer affords the employee;
(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;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
…
Section 105 Liability of person involved in unlawful acts
A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.
Section 106 Vicarious liability etc.
(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Divison 1 or 2 of Part II); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
Section 107 Acts done on behalf of bodies
(1) Where, for the purposes of this Act, it is necessary to establish that a body corporate has done an act on a particular ground, it is sufficient to establish that a person who acted on behalf of the body corporate in the matter so acted on that ground.
Consideration
As with most cases where discrimination is alleged, there will be very little direct evidence of discrimination. In this case Ms Arya submits the court should rely on circumstantial evidence and rely on inferences in order to conclude that Ms Arya was subjected to discrimination, as on the grounds of pregnancy or potential pregnancy: see Wotton v State of Queensland (No. 5) [2016] FCA 1457 at [117] (Mortimer J).
In this matter Ms Arya makes claims that:
a)on or about 9 May 2018 she told Ms Dang that she was pregnant;
b)on or about 14 June 2018 she told Ms Dang that she had suffered a miscarriage; and
c)on or about 26 June 2018 she told Ms Dang she was planning to get pregnant again in the next three months.
Ms Dang has denied that Ms Arya ever told her these things and claims that she was not aware of these things until Ms Arya filed a complaint with the AHRC on 9 July 2018.
It is acknowledged by Ms Arya that she did not tell anyone else at KONE Elevators about these matters prior to making the complaint to the AHRC. Ms Arya submits that the inference should be drawn that she was subjected to discrimination on the grounds of her pregnancy or potential pregnancy because:
a)there was objectively nothing wrong with Ms Arya's performance as an employee prior to and after 9 May 2018 and that can be demonstrated by reference to the company’s records produced at trial; and
b)Ms Arya's treatment following 9 May 2018 and was characterised by unreasonable and unwarranted criticism of Ms Arya's performance and in particular on 23 May 2018 when she was subjected to harsh treatment by Ms Dang where she was shouted at by Ms Dang.
It is also said that on 3 July 2018 Ms Dang found fault with Ms Arya's performance in relation to her keeping debtor notes however no explanation was provided to Ms Arya as to what was required of her in relation to the debtor notes and that she was given a verbal warning and a threat was made to place a performance improvement plan. It is said that the discrimination commenced on 9 May 2018 when Ms Dang was told that Ms Arya was pregnant and the discrimination continued after the middle of June 2018 when Ms Dang became aware of Ms Arya's plans to get pregnant again. It is put forward by Ms Arya, that the analysis of the evidence of Ms Arya and Ms Dang is central to this matter.
Ms Arya relied upon an affidavit affirmed on 27 July 2019 and a statutory declaration signed on 27 July 2019. She also relied upon her oral evidence given at trial. Ms Arya gives evidence at [13] of her affidavit that:
“13. on around 8 May 2018 – I was confirmed pregnancy by my GP and was advised to be careful for the first trimester and inform at the workplace to avoid exerting and stressful tasks.
14. On or around 9 May 2018 – I informed the Second Respondent about pregnancy during a scheduled catch up, inform that going forward might need flexibilities for prenatal appointments and convey GPs advice given on 8 May 2018. The Second Respondent's reaction to this was uncomfortable and hostile and continue to remain till the end of my employment. The schedule catch up neither had an agenda nor any minutes.”
In her statutory declaration which was declared on 27 July 2019, Ms Arya stated at paragraphs [5] – [6]:
“5. The GP confirm my pregnancy after my reports arrived and asked me to be careful, stress-free and take rest due to my poor gynaecological history. I informed to the GP that due to my job, I won't be able to rest but will be careful. The GP advice to inform at the workplace if my duties are stressful and require adjustments and should completely avoid lifting stuffs and physical exertion.
6. On or around 9 May 2018 – As Stewart was away due to his surgery, I informed about my pregnancy to Kathlyn during a scheduled catch up meeting. After I informed her, I felt awkward because she didn't congratulate me and seemed a bit taken by the news. She raised her eyebrows, almost rolled her eyes and her demeanour seemed distant. I informed her that Doctor had advised to be careful for the first 12 weeks especially and asked me not to exert myself. She replied that it is fine and I can take help from Naomi but she seemed hostile and uninterested in this discussion. I informed her that I'm not comfortable with sharing the news of my pregnancy until the end of the first trimester and would appreciate if she won't disclose this to my colleagues just yet. I told her that I informed her in the capacity of my interim manager as I won't be able to physically exert too much and may need leave or flexibility for prenatal appointments. She even advised to organise a meeting with the Doors Division management to highlight the major issues with debt recurrence. That was organised on 16 May 2018.”
Ms Dang denied that she was ever told by Ms Arya about her pregnancy on 9 May 2018 and at paragraphs [43] – [47] of her affidavit affirmed on 16 September 2019 stated:
“43. On 9 May 2018, I attended a scheduled and normal debtors’ meeting with the Applicant.
44. At this meeting we would have discussed the top 10 debtors, briefly discuss actioned planned and discuss any assistance required. Nothing more was discussed. This was the usual and normal focus of our discussions at this meeting.
45. At these meetings I do not ask employees about their personal life, nor do I engage in such discussions.
46. The Applicant did not tell me at the meeting (or at all):
46.1. that I was pregnant;
46.2. that she required flexibilities for prenatal appointments; and
46.3. that her doctors provided medical advice that she had to be careful in the first trimester and needed to avoid exerting any exist in stressful tasks.
47. If the Applicant did tell me this information, I would have asked her to inform Mr Henderson, her manager, and HR. I would have asked her to provide clarification about her doctor's advice and restrictions to ensure we comply with any work, health and safety obligations. I did not say or do these things because the Applicant did not tell me she was pregnant etc.”
Ms Arya relied upon a medical report from her general practitioner Dr Arindom Sen (see page 254 – 255 of the Applicant’s Court Book). That medical report provided (with minor typographical errors amended):
“Sudha Arya came with her husband for fertility related advice on 20 April 2018. The couple trying for pregnancy and was under treatment with a gynaecologist. She has undergone few test regarding fertility without any success. On her second presentation on 4.5.18 she missed her period and wanted to check for pregnancy and a blood test was arranged on that date. In three day time she came for follow-up test (three days later) which was low positive for pregnancy. She was advised to repeat the test again. On her next visit on 17 May 2018 her pregnancy test being positive. She was referred for an Obstetric ultrasound for dating and viability of the pregnancy. She was advised to go for complete blood test as part of pregnancy. Sudha and her husband was happy with the events. She would advised to take proper rest and avoid any kind of stress before viability of pregnancy is determined. On 25 May 2018 the ultrasound results showed early pregnancy and because it was early the viability of the foetus couldn't be done. She was advised to go for a repeat ultrasound which was arranged. On 6 June 2018 she came for follow-up for the scan result which showed that there was irregular gestation or sack with no foetal pole and there was no progression of her pregnancy…It was a failed pregnancy. On 8 June 2018 she started getting brownish vaginal discharge and was referred to Sunshine Hospital for management.
I am not satisfied on the balance of probabilities that Ms Arya told Ms Dang that she was pregnant on 9 May 2018. I say this for the following reasons.
The evidence in this case to the effect that Ms Arya had a medical history of having suffered from Polycystic Ovarian Syndrome (PCOS) for about 20 years and had experienced difficulty in becoming pregnant. The medical report from her general practitioner, which is set out above, referred to her having undergone tests regarding fertility but without success on 8 May 2018 she was told that the tests she taken for pregnancy on 4 May 2018 showed results for a low positive for pregnancy and she was told to repeat the test again. The doctor states in his report that it was on 17 May 2018 that Ms Arya was advised to take proper rest and advised to avoid any kind of stress before “viability of pregnancy is determined". Based on the medical report, which was relied upon by Ms Arya, the pregnancy was not confirmed as at 9 May 2018.
The court also notes that the Applicant gave evidence that "in my culture, before 12 weeks nobody discloses about pregnancy" (transcript of hearing, page 85, line 20 – 25).
Further the Court was given the strong impression from the evidence of Ms Dang, both in it by her affidavit and her evidence before the Court, that she did not have a personal relationship with Ms Arya and the relationship was business focused.
Ms Arya gave evidence that she had previously confided in her workmate Ms Cashion that she had a surgical procedure in December 2017 due to her condition of PCOS and had previously discussed with Ms Cashion her desire to become pregnant and the difficulties associated with that: see also affidavit of Ms Cashion affirmed 16 September 2019 at [10]. It is accepted by Ms Arya that that she never told Ms Cashion that she was pregnant.
The combination of these factors being:
a)that the pregnancy had not been confirmed;
b)Ms Arya's stated reticence for cultural and personal reasons from discussing the pregnancy prior to the 12 week period; and
c)the lack of any close personal relationship/any relationship with Ms Dang, other than a business one, would suggest it was unlikely that she would mention the pregnancy to Ms Dang at an early stage.
I also take into account Ms Dang’s evidence that she was never told about the pregnancy and that if she was told about the pregnancy she would have taken steps to record it and notify Human Resources if there was any limitation on the type of work that Ms Arya could perform because she was pregnant.
I note that Ms Dang gave evidence in relation to personal matters involving Ms Arya to the effect that on or on about 22 May 2018 she overheard Ms Arya talking about some issues that she had with her in-laws and that it sounded like it was worrying Ms Arya. Ms Dang gave evidence at [58] – [59] of her affidavit affirmed 16 September 2019 that:
"58. I asked the Applicant "how are you?". The Applicant seemed stressed and worried about the situation. I told her words to the following effect:
"If you are having family issues, you can contact the police and you can talk to our EAP"
59. I believe I told the Applicant where she could obtain information about KONE’s Employment Assistance Program or EAP.”
Ms Arya gave evidence at [23] of her affidavit filed 27 July 2019 that she told Ms Dang on 14 June 2018 about her miscarriage. She also gave evidence that Ms Dang asked her to submit relevant documents for the national debtors meeting and asked Ms Arya to leave early due to the impact of her miscarriage. At paragraph [24] of her affidavit Ms Arya gave evidence that:
“On or around 15 June 2018 – I was confirmed at the EPAS appointment that I had a complete miscarriage and I did not require any surgery, the fibroid tumour was not responsible for miscarriage and remaining impact would be cured by medications. I messaged the Second Respondent with the update, informed I would be returning to work from the next business day and appreciated her support during such a loss.
The text message exchange, which is found in the Applicant’s Court Book at page 147, states:
“Hi Kathlyn. I will be back from Monday, surgery not required. It's at benign stage and medication will be able to cure it. Thanks for your kind words yesterday, highly appreciated. See you on Monday.”
In response to that text message, Ms Dang responded “Fantastic news. See you on Monday. Kathlyn.”
Ms Dang gave evidence at [72] – [75] of her affidavit that on 8 June 2018 she received an email from Ms Arya stating that Ms Arya would have to leave work due to ill health. Ms Dang gives further evidence at [76] – [79] of her affidavit that she received further text message on 12 June 2018 from Ms Arya advising that she was unwell and unable to come to work on that day, stating that she had to go to the doctor again and would collect a medical certificate. An email was sent to Ms Dang attaching a medical certificate stating that Ms Arya “…will be unfit to attend Work". On 14 June 2018 Ms Dang and Ms Arya had a conversation where Ms Dang states that she was told that Ms Arya would need to take Friday, 15 June 2018, off work. Ms Dang recalls the conversation in these terms at paragraphs [85] – [86] of her affidavit:
“85. I recall a general conversation with the Applicant on 14 June 2018 where she said that she needed to take off Friday, 15 June 2018. We had a conversation, words the following effect:
Applicant: “I need to take tomorrow off. I'm not well”
I said: “Is everything okay?”
Applicant: “I have a something, a lump. I need to see a doctor to find out what it is. I might need surgery, I might not”.
I said: “I hope everything is okay. Just let me know if you need anything. If you need more time, let me know."
86.The Applicant did not tell me where the lump was located. I thought it was a cyst or some other lump. I did not pry. I am a private person and I respect my staff's privacy. I adopt the practice "if you don't want to tell, I won't ask". I just offer support.”
I accept Ms Dang’s evidence that she was not told by Ms Arya that she had suffered a miscarriage. In light of the fact that Ms Dang offered support to Ms Arya and advised her that she could access EAP over what Ms Dang saw as stress that Ms Arya was under over a dispute with her in-laws, I have no doubt that she would have offered support to Ms Arya had she confided to her such personal information.
Ms Arya's evidence at [24] of her affidavit filed 27 July 2019 is that she text-messaged Ms Dang indicating appreciation for of her support "during such a loss". Ms Dang said in her affidavit at [88] that she did not know that Ms Arya had a fibroid tumour and the message that was sent to her by Ms Arya made no reference to any ‘loss’. The text message, which is enclosed as Annexure “KD-H” of Ms Dang’s affidavit, made no reference to pregnancy or miscarriage. I accept Ms Dang’s evidence that she was never aware of the of Ms Arya's pregnancy or miscarriage prior to Ms Arya's complaint to the AHRC.
The medical certificates provided to Ms Dang do not specify Ms Arya’s conditions or ailments or that she suffered a miscarriage.
In relation to submissions made by the Applicant that the Court ought to be compelled to accept that Ms Dang discriminated against the Applicant from 8 May 2018 onwards because of the way she was treated, in my view the evidence does not support such a finding.
Ms Arya alleges that on 26 June 2018 she was told by Ms Dang that her position would be made redundant by September 2018. It is also alleged that Ms Dang then Ms Arya whether she was planning to become pregnant again, to which Ms Arya replied that she would probably try to fall pregnant again in the next three months. At [94] – [100] of her affidavit, Ms Dang gave evidence that at about that time she was having difficulty with Ms Arya’s performance – with the Applicant saying that she could not get to tasks because she was "too busy".
Ms Dang gave evidence at [97] of her affidavit that:
“I had the usual scheduled debtors meeting with the Applicant. During the meeting, the Applicant and I discussed her workload and the freeing up of her time to ensure she had time to complete her key tasks. I asked the Applicant to keep a diary of the daily tasks that she performs for the next two weeks. I also discussed with her the need to document in our database, SAP, details of calls she makes to customers chasing debts.”
Ms Arya sent Ms Dang an email on 26 June 2018 18 at 5.11pm which attached a list of the processes she followed on a regular basis and that email appears to directly respond to the matters that Ms Dang states she raised in the meeting with Ms Arya on that day.
The emails in relation to that meeting that were set out between Ms Dang, Ms Arya and Ms Cashion all confirm that the discussions between Ms Dang and Ms Arya were directed towards Ms Arya’s performance. There is no reference by either Ms Dang or Ms Arya to Ms Arya’s position becoming redundant. Further, in text messages exchange with Ms Cashion and Mr Henderson (who was by 26 June 2018 no longer employed by KONE Elevators), there is no reference to Ms Arya’s position being made redundant or of Ms Arya having been told that her position would be made redundant. I do not accept that Ms Arya was ever told by Ms Dang that her position would be made redundant and I accept the evidence of Ms Dang both in her affidavit and in her oral evidence given in response to cross examination in relation to the claim that she told Ms Arya her position would be made redundant.
Ms Arya raises an allegation at [29] of her affidavit affirmed 27 July 2019 that, on or about 3 July 2018, during a scheduled catch up meeting, Ms Dang “harassed, bullied, belittled and demeaned” her in the presence of a colleague, taken to be Ms Cashion. It is claimed by Ms Arya at [29] of her affidavit that:
"The Second Respondent…threatened that she could dismiss me straightaway based on my diary; accused an entry level person could do a better job; called me a waste, useless and the business would be better off hiring a temp… The Second Respondent asked me to resign by the next day or she would put under 3 weeks Performance Improvement Plan and this dismiss before the Second Respondent leaves for NSW and even the new reporting manager wouldn't be able to save me if I opt for a PIP.”
It is said by Ms Arya at [29] of her affidavit that her colleague, taken to be Ms Cashion, "was present at the meeting as the Second Respondent’s support person and equally supported the harassment and bullying”. It is then said by Ms Arya that "…the Second Respondent emailed me that she gave verbal warning based on my performance. The Second Respondent later threatened me that she would get me immediately dismissed if I complained about it to the HR"
I note that at page 4 of Ms Arya’s complaint to the AHRC dated 5 July 2018, she stated that at the meeting of 3 July 2018, Ms Dang had also said the following to her after forwarding the email regarding the warning:
“Later in the afternoon, she pulled me aside and said if I go to the HR she would accuse me of making unparliamentarily (sic) comment and get me immediately dismissed.”
(emphasis added)
Ms Dang gave evidence that she did counsel Ms Arya about the adequacy of the note she was taking. Ms Dang gave evidence at [117] – [118] of her affidavit as follows:
“During the meeting, the Applicant raised the issue that she was unable to go through the debts as she was doing many tasks. I asked the Applicant for a list of tasks, so that I could exploring providing the more menial and manual tasks to our offshore service centre in Malaysia. The Applicant provided me her daily diary during our meeting. The details in her daily diary were not sufficient for me to help her. I did tell her words to the effect "I'm very disappointed with these notes, a person at entry level for this job could have provided me better notes". I did not say to the Applicant "that a teenager could prepare a better diary than her''.”
At [120] – [121] of her affidavit, Ms Dang denied suggesting that Ms Arya should resign or that Ms Arya would be placed on a performance improvement plan and then dismissed. Ms Dang does give evidence that she gave Ms Arya a verbal warning in relation to her performance to which “[t]he Applicant left the meeting, slamming the door behind her”.
Evidently the meeting became somewhat heated. Ms Dang did send Ms Arya an email on 3 July 2018 at 4.09pm, copying in Ms Cashion, which is enclosed as Annexure “KD-R” of Ms Dang’s affidavit. That email sets out the issues that were discussed in the meeting on that day, raising that Ms Arya had provided insufficient information in relation to certain tasks and also providing clear instructions on the way that Ms Arya might improve her performance. The email included the following statement:
“For the next meeting schedule on Tuesday 10/07– issues raised today need to be resolve
Based on your current performance, you have given a ‘verbal warning’
Niomi can assist you if you require any assistant”
(email copied exactly)
Ms Cashion's evidence in relation to the meeting of 3 July 2018 accords with Ms Dang's evidence. I saw Ms Cashion give evidence in responding to cross examination and I did not get the impression that Ms Cashion was allied to Ms Dang or was not giving independent evidence in relation to the meeting. Ms Cashion's recollection at [59] of her affidavit of a particular aspect of the conversation during the meeting was as follows:
“I recall Ms Dang saying to the Applicant, words to the following effect:
“Sudha, the notes you are writing are entry-level notes, not something at a credit controller level".
“Is this how you were trained to do a debtors’ note?
“This is not how I want them. This is not how I told you to do it”.”
Ms Cashion gave evidence at [61] of her affidavit that, at the end of the meeting, Ms Dang said to Ms Arya "based on this meeting. I will give you a verbal warning to improve your performance and I will need to start performance managing you". That account differs slightly to Ms Dang's version of events, and, to the extent that it does, it fortifies me in the view that Ms Dang and Ms Cashion have not colluded in relation to their evidence. I do not accept that Ms Dang made the threats attributed to her by the Applicant in either her affidavit or the complaint to the AHRC.
On 3 July 2018 Ms Arya left the workplace and on 5 July 2018 filed a complaint with the AHRC. That complaint was the subject of a conciliation conference held on 2 August 2018. The matter did not resolve and on 2 August 2018 at the conclusion of the conference, Ms Arya resigned from her employment and confirmed that resignation in writing.
Ms Arya’s resignation letter to the company dated 2 August 2020, a copy of which is enclosed in Ms Arya’s affidavit affirmed 27 July 2019 as Annexure “SA1.153”, indicates that the letter stands as "formal notification of my resignation from KONE Elevators". The letter states "I am resigning due to the discrimination, victimisation, harassment and bullying I faced causing me in mental injury, emotional distress and constructive dismissal.”
No relief was sought by the Applicant in respect of the alleged constructive dismissal.
I have found previously that the respondents did not discriminate against Ms Arya on the grounds of pregnancy. It follows that I do not accept that Ms Arya was constructively dismissed because of discrimination on that same ground. I do not accept that Ms Arya was subjected to bullying or harassment, such that she was forced to resign her employment.
The Applicant invited the Court to find that Ms Dang had made up evidence or was making false denials in relation to her knowledge of the Applicant's pregnancy. Having seen Ms Dang give evidence, I do not accept that it is more probable than not that Ms Dang was aware of Ms Arya’s pregnancy.
Ms Dang gave clear and consistent evidence both in her written evidence and during the hearing, and it was plain that she was upset to be accused of discrimination on the ground of Ms Arya’s pregnancy. Ms Dang was employed as a Regional Controller at KONE Elevators, and within that role, managed Ms Arya and Ms Cashion amongst others. It is clear that Ms Dang gave directions to Ms Arya (and Ms Cashion) that did not make her popular. However, Ms Dang’s conduct did not rise to the point of harassment or bullying. Mr Henderson’s evidence that he had been happy with Ms Arya’s performance does not mean that all actions taken by Ms Dang as a manager were motivated by a prohibited reason.
Ms Arya was highly emotional in the manner in which she gave evidence and clearly the health issues that she has and continues to experience weigh on her. It is also the case that litigation is stressful on those persons who are personally named as respondents in these types of proceedings. Ms Dang has been accused of conduct which I find she did not commit. Ms Dang has been supported in this litigation by her employer, but was clearly under significant pressure as a result of this process, both at the time the complaint was made to the AHRC and as a result of the process of litigation in this Court. The fact that Ms Arya has a strongly held belief that she has been subjected to discrimination is not proof that discrimination occurred.
By way of conclusion I find that:
a)Ms Arya never advised Ms Dang prior to her complaint to the AHRC that she was pregnant; and accordingly
b)there is no evidence to support a finding that KONE Elevators discriminated against Ms Arya by reason of the conduct of Ms Dang, because of Ms Arya’s pregnancy.
c)the claims made by Ms Arya alleging breaches of the Fair Work Act 2009 (Cth) were not pursued at the hearing.
For these reasons the application must be dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 29 September 2020
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