Arya v Kone Elevators Pty Ltd - [2020] FCCA 2693

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Arya v Kone Elevators Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 2693
Decision Date: 29 September 2020

CaseChat Overview and Summary

In *Arya v Kone Elevators Pty Ltd*, the applicant, Ms. Arya, alleged unlawful discrimination in her employment on the grounds of pregnancy, and constructive dismissal. The respondent was Kone Elevators Pty Ltd. The matter was heard in the Federal Circuit Court of Australia before Judge McNab.

The primary legal issue before the Court was whether Ms. Arya had been unlawfully discriminated against on the grounds of pregnancy. A related issue was whether the circumstances amounted to a constructive dismissal, meaning Ms. Arya had resigned due to the employer's conduct.

Judge McNab found that the alleged discriminators had no knowledge of Ms. Arya's pregnancy at the material times. Consequently, the Court determined that the alleged discriminatory conduct could not have been the cause of any adverse action taken against Ms. Arya. As the essential element of knowledge was absent, the claim for unlawful discrimination could not be made out. Furthermore, because the alleged discriminatory conduct was not established, the Court found that the circumstances did not constitute a constructive dismissal.

The application was therefore dismissed.

Orders