Bestwick v Adecco Australia Pty Ltd

[2012] NSWADT 156

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Bestwick v Adecco Australia Pty Ltd [2012] NSWADT 156

Hearing dates:

31 July 2012

Decision date:

06 August 2012

Jurisdiction:

Equal Opportunity Division

Before:

Magistrate N Hennessy, Deputy President

Decision:

Leave is granted for Ms Bestwick's complaints against Adecco Australia Pty Ltd and Essential Energy to proceed.

The complaints are listed for a case conference on 15 August 2012 at 12.15 pm.

Catchwords:

LEAVE- complaint of pregnancy discrimination declined as lacking in substance - whether fair and justice for complaint to proceed

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Category:

Interlocutory applications

Parties:

Melissa Bestwick (Applicant)
Adecco Australia Pty Ltd (Respondent)
Essential Energy (Respondent)

Representation:

Melissa Bestwick (Applicant in person)
J Iser (Agent for First Respondent)
Norton Rose (Second Respondent)

File Number(s):

121086

REASONS FOR DECISION

Introduction

1. A complaint of discrimination that has been declined by the President of the Anti-Discrimination Board (ADB) cannot go ahead in the Tribunal without the Tribunal's permission: Anti-Discrimination Act 1977, (AD Act) s 96. The test is whether it is fair and just for the complaint to proceed: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. The President of the ADB declined Ms Bestwick's complaint of pregnancy discrimination against an employment agency, Adecco Australia Pty Ltd. Adecco had placed Ms Bestwick with Essential Energy but terminated that assignment after she took some time off because she was suffering from morning sickness.

1. I have decided that the complaint against Adecco should go ahead because the fact that she was pregnant may have been at least one of the reasons that Ms Bestwick's assignment was terminated. I have decided that the complaint against Essential Energy should also go ahead because if Adecco has breached the AD Act, Essential Energy will also be liable if it instructed or permitted Adecco to do something which was a breach of the AD Act.

Background

1. Adecco engaged Ms Bestwick on a casual basis to undertake work for Essential Energy. Ms Bestwick says she signed a contract which had a start date of 14 September and a finish date about 12 months later. That document was not in evidence and Adecco denies that the assignment was for a fixed period. I am satisfied that it was Ms Bestwick's expectation that she would remain working with Essential Energy full time for about 12 months.

1. Ms Bestwick had worked for Essential Energy in another area previously. When being interviewed for this position by Essential Energy employees, Ms Bestwick told them that she was getting married and would need time off for the wedding from 21-29 September and for the honeymoon from 14-26 October. She says those arrangements were approved and she understood that she would not be paid for the time when she was not at work.

1. Ms Bestwick started working for Essential Energy on 14 September 2011. She was instructed not to come to work on Friday 16 September because her manager did not work on Fridays and she did not have independent access to the computer system.

1. On 20 September, after working for 3 ½ days, Ms Bestwick left work in the afternoon to go to an emergency dental appointment. She had cracked a tooth and said that a manager, Ms Kildea, told her she had better get it fixed because she was leaving to get married the next day. She took leave to get married from 21-29 September and was instructed not to come to work on 30 September because her manager did not work on Fridays and she could not access the system independently.

1. On 6 October 2011, after working 3 more days, Ms Bestwick did not come to work because she was suffering from morning sickness. The following day she came to work but left after a few hours because she did not feel well. She told Adecco on that day, 7 October 2011, that she was pregnant.

1. On Monday 10 October, Ms Bestwick arrived at work at about 11.15 am because she had been to the doctor to get some medication for morning sickness. She says she was stuck in traffic because of a sporting event in Bathurst but telephoned Adecco to tell them she would be late. When she arrived at work she told her manager at Essential Energy, Ms Edwards, that she was pregnant. She says that she and Ms Edwards had a conversation about the fact that she was suffering from morning sickness. Ms Bestwick says she told Ms Edwards that she was 100% committed to the contract with Essential Energy.

1. Prior to being told that Ms Bestwick was pregnant, Ms Edwards had arranged to meet with Adecco representatives on 10 October to discuss Ms Bestwick's level of absenteeism. About 20 minutes after Ms Bestwick had broken the news about her pregnancy, representatives from Adecco arrived for that meeting. During those 20 minutes, Ms Edwards arranged for Ms Bestwick to have access to the Centrelink data base which she needed to perform her role.

1. After the meeting between Essential Energy and Adecco, Ms Bestwick met with Adecco. She was offered a part-time position which she could start within the next 2 or 3 days. Ms Bestwick assumed that the position was with Essential Energy and that it was offered as an interim arrangement until she got over her morning sickness. She made that assumption because during her initial interview she was asked whether she preferred a full-time or a part-time position. However, after she had agreed, she was told that the position was with another organisation. According to Ms Bestwick that role did not eventuate and she was out of work until Adecco placed her in a new role on 9 January 2012.

1. After the meeting with Ms Bestwick, the Adecco representative told Ms Edwards that Ms Bestwick had accepted an offer of an alternative position with another organisation. In a later conversation with Ms Edwards, Ms Bestwick told her that she felt she had no choice but to accept the offer of an alternative assignment.

1. According to Essential Energy, they did not ask for Ms Bestwick to be replaced nor did they know Adecco had offered her another position. While Ms Bestwick initially drew a connection between the fact that she had told her manager at Essential Energy that she was pregnant and the arrival of the Adecco representative on 10 October, she now accepts that that meeting had been arranged before her manager knew she was pregnant.

Complaint against Adecco

1. The fact that a woman is pregnant is described as a characteristic that appertains generally to women: AD Act, s 24(1B). Consequently, it is unlawful for an employer to discriminate against an employee by subjecting that employee to any detriment on the ground that the employee is pregnant: s 25(2)(b). Ms Bestwick did not say whether she relies on direct or indirect discrimination as defined in s 24(1)(a) and (b) respectively. For the purposes of these proceedings, I am satisfied that Adecco, as Ms Bestwick's employer, subjected her to a detriment by suggesting that she terminate her assignment with Essential Energy and take up a part-time assignment: s 25(2)(c).

1. If Ms Bestwick relies on direct discrimination, she would have to prove that:

(1)   the treatment was less favourable than the treatment that was or would have been afforded to a person who was not pregnant (differential treatment); and

(2)   at least one of the reasons for the treatment was that Ms Bestwick was pregnant (causation).

1. In relation to the differential treatment test, the way in which Adecco treated Ms Bestwick must be compared with the way it treats or would have treated a person who was not pregnant in the same or similar circumstances. At the hearing, Ms Bestwick suggested that a valid comparator is another employee she knows who took two weeks off because of a spider bite. On that occasion, Ms Bestwick says that Adecco left it up to the manager in the workplace to decide whether to continue with the contract. The workplace manager decided to continue with the contract. Adecco says that in the past it has terminated assignments unilaterally if the person's attendance has not been satisfactory.

1. Given the conflicting assertions about how Adecco treats employees who need to take leave, I am satisfied that it is fair and just for the complaint against Adecco to proceed. Evidence in relation to Adecco's practices needs to be tested before any view can be expressed about the merits of the differential treatment element of direct discrimination.

1. In relation to causation, Adecco said that the sole reason for terminating Ms Bestwick's assignment was that Essential Energy required full time commitment and Ms Bestwick was not able to give that commitment. Her record of attendance had been irregular and she was scheduled to take another two weeks off in mid October. Adecco says that the same decision would have been made regardless of whether Ms Bestwick was pregnant or not. Ms Bestwick disagrees. She says that the fact that she was pregnant was one of the reasons for Adecco's decision.

1. Given the conflicting assertions about causation and differential treatment, I am satisfied that it is fair and just for leave to be granted for the complaint to proceed.

1. Ms Bestwick is not legally represented and did not expressly rely on indirect discrimination.

Complaint against Essential Energy

1. Essential Energy is not Ms Bestwick's employer. It will only be liable under the AD Act if it did something to "cause, instruct, induce, aid or permit" Adecco to discriminate against Ms Bestwick: AD Act, s 52. Essential Energy will not be liable unless Adecco is found to have breached the AD Act. Essential Energy denied that it permitted or instructed Adecco to terminate the assignment. At the hearing Ms Bestwick agreed that the meeting between Adecco and Essential Energy had been pre-arranged and was not called as a result of her telling Essential Energy that she was pregnant.

1. Ms Bestwick said that Ms Edwards made arrangements for her to have access to the Centrelink data base after she knew Ms Bestwick was pregnant and before meeting with Adecco. While that suggests that it was Ms Edwards understanding that Ms Bestwick would continue with her role, there is no evidence from Ms Edwards as to what was said in the meeting. In those circumstances it is fair and just that leave be granted to give Ms Bestwick an opportunity to substantiate her case against Essential Energy.

1. The matter will be listed for a case conference on 15 August 2012 at 12.15 pm.

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Decision last updated: 06 August 2012