Biundo and Cocks Macnish & Anor - [2005] WASAT 300

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: BIUNDO and COCKS MACNISH & ANOR [2005] WASAT 300

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MS J TOOHEY (SENIOR MEMBER)
DR R FITZGERALD (SESSIONAL MEMBER)

HEARD: 7 9 FEBRUARY 2005

DELIVERED : 16 NOVEMBER 2005

FILE NO/S: EOT 11 of 2003

BETWEEN: SUZANNE ELLEN BIUNDO
Applicant
AND
COCKS MACNISH
First Respondent
TENNA PTY LTD
Second Respondent

Catchwords:

Pregnancy Maternity leave Parental leave Whether applicant resigned or left on maternity leave Constructive dismissal Damages Discrimination

Legislation:

Equal Opportunity Act 1984 (WA)(in force prior to 1 January 2005), s 9, s 93(1)(b), s 109, s 125(1)

Equal Opportunity Act 1984 (WA), s 5, s 8, s 10, s 10(1), s 10(1)(a)(i), s 10(1)(a)(ii), s 11, s 11(2)(c), s 11(2)(d), s 13, s 93(1)(b), s 127, s 127(b)(i), s 160
Minimum Conditions of Employment Act 1993 (WA), s 33

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

Result:

The applicant's claim is made out. The respondents to pay compensation as ordered.

Category: A

Representation:

Counsel:

Applicant:     Mr RosalesCastaneda
First Respondent           :     Ms Lee
Second Respondent       :     Ms Lee

Solicitors:

Applicant:     Commissioner for Equal Opportunity
First Respondent           :     Cocks Macnish
Second Respondent       :     Cocks Macnish

Case(s) referred to in decision(s):

Cocks Macnish & Anor v Biundo [2004] WASCA 194
Cocks Macnish v Suzanne Ellen Biundo EOT 11 of 2003
Evans v National Crime Authority [2003] FMCA 375
Gibbs v Australian Wool Corporation (1990) EOC 92‑327
Haines v Bendall (1991) 172 CLR 60
HREOC v Mt Isa Mines Ltd & Ors (1993) 46 FCR 301
Thomson v Orica Australia Pty Ltd [2002] EOC 93‑227
Waters and Ors v Public Transport Corporation (1991) EOC 92‑390

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant was employed as a legal secretary by the second respondent, a company that manages the non‑legal staff of the first respondent, a firm of solicitors. In May 2001, six weeks before the expected birth of her first baby, the applicant left work. She claimed that she left on 12 months maternity leave. The respondents claimed she resigned.
The Tribunal decided that the applicant had always intended to take maternity leave and believed, when she left to have her baby, that she was going on maternity leave. It found that the respondents acted to her detriment in telling her she need not put anything in writing, and in not clarifying her intentions.
The Tribunal found that the respondents constructively had dismissed the applicant. In doing so they discriminated against her unlawfully on the grounds of sex and pregnancy.

Background

Between June 1997 and 11 May 2001, the applicant, Ms Suzanne Biundo, was employed as a legal secretary by the second respondent, Tenna Pty Ltd, a company that manages the non-legal staff of the first respondent, Cocks Macnish, a firm of solicitors. Two of the partners of the firm, Mr Graeme Macnish and Mr Tim Cocks, are also the directors of Tenna Pty Ltd. Cocks Macnish is a long established, relatively small firm of solicitors. Throughout the relevant period, it comprised three partners, four solicitors, one office manager and approximately 13 support staff of whom nine were secretaries.
In October 2000, Ms Biundo learned that she was pregnant. She claims that, around the end of November or early December, she informed the office manager, Ms Wendy Krstic, that she was pregnant; in April 2001 she informed Ms Krstic that she intended to commence maternity leave on 11 May 2001, approximately six weeks before the birth of the baby; and that she commenced maternity leave on that date.
On 3 April 2002, Ms Biundo claims that she went to the respondents' office and spoke with Ms Krstic to confirm the date of her impending return from maternity leave. She claims she was shocked to hear from Ms Krstic that there was no position for her and that her employment had ceased when she left the previous year to have her baby.
On 15 April 2002, Ms Biundo made a complaint to the Commissioner for Equal Opportunity (the Commissioner) alleging that, on or about 11 April 2002, the first respondent unlawfully discriminated against her on the ground of pregnancy and sex. When attempts by the Commissioner to conciliate the complaint were not successful, the Commissioner referred the complaint to the (then) Equal Opportunity Tribunal (the EO Tribunal) pursuant to s 93(1)(b) of the Equal Opportunity Act 1984 (WA) (the EO Act) as it was before 1 January 2005. On 21 May 2003 that tribunal ordered the second respondent be joined as a party to the complaint pursuant to s 9 of the EO Act (as it then was).
Points of claim and defence were subsequently filed by the parties in the EO Tribunal. On 25 July 2003, the respondents applied for an order dismissing the complaint pursuant to s 125(1) of the EO Act (as it then was) on the grounds that the EO Tribunal lacked jurisdiction to deal with it and, further, that it was misconceived and lacking in substance. On 28 October 2003, the EO Tribunal dismissed that application: Cocks Macnish v Suzanne Ellen Biundo EOT 11 of 2003 (Ms J Crisford SC, President) 15 September 2003.
The respondents appealed that decision to the Supreme Court. On 26 August 2004, the Court (Jenkins J) dismissed the appeal: Cocks Macnish & Anor v Biundo [2004] WASCA 194.
One of the grounds of appeal by the respondents to the Supreme Court was that the EO Tribunal lacked jurisdiction to deal with Ms Biundo's complaint because, at the time of the alleged discrimination, in April 2002 when she sought to return to work, she was no longer pregnant. Jenkins J accepted that, for a complaint of unlawful discrimination on the ground of pregnancy in s 10(1)(a)(i) of the EO Act to be made out, it must be on the basis of a pregnancy that existed at the time. Her Honour's view was that it was open on the evidence to the Tribunal to find that Ms Biundo was constructively dismissed in May 2001, when she was pregnant. On a proper construction of s 10(1)(a)(ii) and (iii) of the EO Act, an existing pregnancy was not necessary to make out a claim of discrimination under either provision.
Steps were subsequently taken by the EO Tribunal to list the matter for hearing in early 2005. On 1 January 2005, the functions of that tribunal were assumed by the State Administrative Tribunal by virtue of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA).
On 7,8 and 9 February 2005, a hearing was held by this Tribunal at the conclusion of which the Tribunal reserved its decision. Ms Biundo was represented by Mr Rosales-Castaneda of the Equal Opportunity Commission. The respondents were represented by Ms Lee of counsel. In addition to written material submitted by the parties, Ms Biundo and her husband, Mr Salvatore Biundo, gave oral evidence. Evidence was given for the respondents by Mr Graeme Macnish and Mr Tim Cocks, partners in the first respondent and managing directors of the second respondent; Ms Wendy Krstic, office manager for Cocks Macnish; Ms Julia Routley, a solicitor with the firm; Ms Jody Foskett, Ms Narelle Wundenburg and Ms Joanne Doman, legal secretaries and accounts clerk at Cocks Macnish who were employed at the time Ms Biundo was there; and recruitment consultant Ms Melanie Davies.

The claims

Ms Biundo claims that the first and second respondents unlawfully discriminated against her on the ground of pregnancy in the area of employment by treating her less favourably than in the same circumstances, or in circumstances that are not materially different, they treat or would treat person who is not pregnant, contrary to s 10 and s 11(2)(c) and (d) of the EO Act. In particular, she says they unlawfully discriminated against her:
(i)on the grounds of a characteristic that appertains generally to persons who are pregnant, namely, that they take parental leave; and/or
(ii)on the ground that a characteristic that appertains generally to persons who are pregnant, or which is imputed to them, namely, the need to care for a baby following pregnancy, and the further need to return to work on terms that will allow a baby to be cared for.
She intended to commence parental leave and she conveyed this to the second respondent's office manager, and the office manager stated that there was no need to put anything in writing.
At the end of the parental leave, the respondents did not allow her to return to work and denied that such leave had been discussed or approved.
The treatment the respondents afforded Ms Biundo was less favourable than, in circumstances that are the same or not materially different they would have treated a female who was not pregnant who had taken extended leave with the same rights of return to work as provided in the Minimum Conditions of Employment Act 1993 (WA), or agreed by the respondents.
In the alternative Ms Biundo claims that the second respondent unlawfully discriminated against her as outlined above, and that the first respondent breached s 160 of the EO Act by causing, instructing, inducing, aiding or permitting the second respondent to discriminate against her on the ground of pregnancy in the area of employment.
Additionally, Ms Biundo claims that she was employed as a contract worker by the second respondent in order to perform work for the first respondent, and that the first respondent unlawfully discriminated against her on the ground of pregnancy in the area of employment in breach of s 10(1) and s 13 of the Act, also as outlined above.
Ms Biundo also claims that the first and second respondents unlawfully discriminated against her on the ground of sex in the area of employment by treating her less favourably than, in the same circumstances, or in circumstances that are not materially different, they treat or would treat a male person who had taken extended leave with the same rights of return to work as provided in the Minimum Conditions of Employment Act 1996 (WA), or agreed to by them, contrary to s 8 and s 11(2)(c) and (d) of the Equal Opportunity Act 1984, as amended. In particular, she says:
(a)Pregnancy is a characteristic generally appertaining to women.
(b)The respondents unlawfully discriminated against her on the ground of that characteristic.
(c)The treatment the respondents afforded her was less favourable than, in circumstances that are the same or not materially different the respondents would have treated a male who had taken extended leave with the same rights of return to work as provided in the Minimum Conditions of Employment Act 1993 (WA), or agreed by the respondents.
In the alternative Ms Biundo claims that the second respondent unlawfully discriminated against her and that the first respondent breached s 160 of the Act by causing, instructing, inducing, aiding or permitting the second respondent to discriminate against her on the ground of sex in the area of employment.
Additionally, she says that she was employed as a contract worker as defined in order to perform work for the first respondent, and that the first respondent unlawfully discriminated against her on the ground of pregnancy in the area of employment in breach of s 10(1) and s 13 of the Act.

Issues

Ms Biundo says that she intended to commence maternity leave on 11 May 2001 and that she communicated this to the relevant person, being the office manager, Ms Krstic. She maintains that the respondents discriminated against her by treating her less favourably than in the same circumstances, or in circumstances that were not materially different, the respondent would have treated a person who was not pregnant or was not female. She claims, in particular, that they did so by not advising her of her entitlements and obligations to maternity leave; by leading her to believe through action or omission that she did not have to provide anything in writing in relation to her intention to take maternity leave; by not allowing her to return to work after maternity leave and denying that such leave had ever been approved; by asserting that even if she had indicated her intention to return to work her employer would not have accommodated her.
It is not in dispute that 11 May 2001 was the last date on which Ms Biundo worked in the respondents' office. However, the respondents deny that she sought, or left to commence, maternity leave. They maintain that she intended to resign, and that she in fact resigned, from her employment on 11 May 2001 when she left to have her baby.
The matters to be determined by the Tribunal are:
(i)did Ms Biundo intend taking maternity leave when she left work on 11 May 2001;
(ii)did Ms Biundo advise her employer that she intended taking maternity leave;
(iii)did her employer act unlawfully by discriminating against her on the ground of her sex or pregnancy;
(iv)if her employer acted unlawfully in terminating Ms Biundo's employment, what, if any, damage did Ms Biundo suffer as a result;
(v)if Ms Biundo did suffer any damage as a result of the respondents' action, what, if any, compensation is she entitled to.

Relevant legislation

Equal Opportunity Act 1984:
8.Sex discrimination
(1)For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of the sex of the aggrieved person if, on the ground of ‑
(a)the sex of the aggrieved person;
(b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
10.Discrimination on the ground of pregnancy
(1)For the purposes of this Act, a person (in this subsection referred to as the “discriminator”) discriminates against another person (in this subsection referred to as the “aggrieved person”) on the ground of the pregnancy of the aggrieved person if —
(a)on the ground of —
(i)the pregnancy of the aggrieved person;
(ii)a characteristic that appertains generally to persons who are pregnant; or
(iii)a characteristic that is generally imputed to persons who are pregnant,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who was not pregnant; and
(b)the less favourable treatment is not reasonable in the circumstances.
11.Discrimination against applicants and employees
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status or 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.
13. Discrimination against contract workers
(1)It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker's sex, marital status or pregnancy ‑
(a)in the terms or conditions on which the principal allows the contract worker to work;
(b)by not allowing the contract worker to work or continue to work;
(c)by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or
(d)by subjecting the contract worker to any other detriment.
127. Decisions of Tribunal
After holding an inquiry, the Tribunal may —
(b)find the complaint substantiated and do any one or more of the following —
(i)except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to pay to the complainant damages not exceeding $40 000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct;
(ii)make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act;
(iii)except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;
(iv)make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act; or
(v)decline to take any further action in the matter.
160.Liability of persons involved in unlawful acts
A person who causes, instructs, induces, aids, or permits another person to do an act that is unlawful under this Act shall for the purposes of this Act be taken also to have done the act.
Minimum Conditions of Employment Act 1996:
33. Unpaid parental leave, entitlement to
(1)Subject to sections 35, 36(1) and 37(1), an employee, other than a casual employee, is entitled to take up to 52 consecutive weeks of unpaid leave in respect of ‑
(a)the birth of a child to the employee or the employee's spouse or de facto partner; or
(b)the placement of a child with the employee with a view to the adoption of the child by the employee.
(2)An employee is not entitled to take parental leave unless he or she ‑
(a)has, before the expected date of birth or placement, completed at least 12 months' continuous service with the employer; and
(b)has given the employer at least 10 weeks' written notice of his or her intention to take the leave.
(3)An employee is not entitled to take parental leave at the same time as the employee's spouse or de facto partner but this subsection does not apply to one week's parental leave taken by the employee and the employee's spouse or de facto partner immediately after ‑
(a)the birth of the child; or
(b)a child has been placed with them with a view to their adoption of the child.
(4)The entitlement to parental leave is reduced by any period of parental leave taken by the employee's spouse or de facto partner in relation to the same child, except the period of one week's leave referred to in subsection (3).

Evidence and submissions

It was common ground that Ms Biundo commenced full-time employment as a legal secretary at Cocks Macnish in June 1997. It was also common ground that, from some time in January 2001, until 11 May 2001, the last date on which Ms Biundo worked at the firm, she worked four days per week. It is the circumstances in which her employment ceased that are the subject of these proceedings.
Ms Biundo gave evidence that she had worked as a legal secretary for a number of firms and practitioners until 1996 when her previous employer had to reduce the number of his staff; as one of those more recently hired, Ms Biundo was among those laid off. Some short time later her husband, a hairdresser whose business was close to the respondents' office and to whom Mr Macnish and Mr Cocks went for haircuts, mentioned that his wife was looking for work. She was subsequently offered a position and worked with the firm until May 2001.

Ms Biundo's evidence was that, in mid‑October 2000, she learned she was pregnant. Some time in late November or early December 2000, she told the office manager, Ms Wendy Krstic, that she was pregnant. (Some of the evidence puts this conversation at October 2000 but nothing turns on this). Ms Biundo says that Ms Krstic was "very, very excited" [T24] at the news; she said there had not been a pregnancy in the office for a very long time, and she wanted to tell everyone. Ms Biundo asked her not to say anything until after the "danger period" of thee months had passed to which Ms Krstic agreed. It was common ground that, at this point, Ms Krstic did not ask Ms Biundo about her plans and there was no discussion about Ms Biundo taking leave.
By about January 2001, Ms Biundo's pregnancy was common knowledge in the office. Ms Biundo gave evidence that Ms Krstic "kept asking" [T25] what she needed for the baby as "they" would like to buy her a present; Ms Krstic asked her when would be the date on which she would "be leaving" [T25] to which Ms Biundo replied that she would have to talk to her doctor and get his advice on when he would like her to "finish working" [T25]. Under cross‑examination Ms Biundo said that some time around the end of January Ms Krstic asked her when she would be "finishing" [T52]. Ms Biundo's evidence was that these discussions were always in the context of what she needed for the baby and what gift might be bought for her rather than in the context of her employment or the terms on which she would be leaving.
At some point during January 2001, Ms Biundo reduced her hours to four days per week so that she could attend medical appointments. According to her evidence, she intended this to be a temporary arrangement for the period leading up to the birth. She continued to work four days per week until her last day on 11 May.

The conversation in February 2001

Early in February 2001, the conversation took place between Ms Biundo and Ms Krstic which is central to these proceedings. Ms Biundo says that she told Ms Krstic that she had spoken to her doctor and he would like her to leave six weeks before the baby was due, so the date on which she "would be leaving on maternity leave" [T26] would be approximately 11 May. Ms Biundo maintains that she used that term. The Tribunal notes that, according to the Points of Claim dated 26 June 2003 and Amended Points of Claim dated 6 October 2004 filed with the EO Tribunal, Ms Biundo informed Ms Krstic that she intended to commence "parental leave" six weeks prior to her due date.
Ms Biundo states that, when she asked Ms Krstic if she needed to put anything in writing, Ms Krstic replied "No" because "we're all friends here" [T26]. Ms Krstic maintains that they did not discuss this. Ms Biundo gave evidence that she was used to very formal arrangements in her previous workplaces where there were always "applications for everything"; that was why she asked Ms Krstic if she needed to put anything writing; however, Ms Krstic's response did not surprise her and she did not question it because she had never been asked, and it was not the practice of the office, to put anything in writing. Ms Biundo claims that she mentioned to some of her friends the fact that she had not been required to put anything in writing and they thought it "a bit odd" [T67] but she said it was just the way things were at Cocks Macnish. In any event, Ms Biundo did not put, and was not asked to put, anything in writing and, on 11 May 2001, she says, she went on maternity leave.
It was common ground that, during the conversation in early February, there was no discussion about Ms Biundo's departure other than what is referred to above. Ms Krstic did not ask her any other questions and Ms Biundo did not offer any other information. There was no discussion about whether, or when, Ms Biundo would return from leave or anything about her future plans. Ms Krstic told the Tribunal that she did not see any need to clarify what Ms Biundo meant by "leaving" [T25]; although Ms Biundo did not actually state it was her intention to leave permanently, Ms Krstic felt that was the implication. It was common ground that neither Ms Biundo nor anyone at Cocks Macnish at any time, either during this conversation or at any time before Ms Biundo left on 11 May, used the term "resign" in connection with her impending departure.
Ms Krstic says [T158] that, when Ms Biundo first told her in 2000 about the pregnancy, although there was no discussion about when she would be leaving, she was "a little bit relieved" [T158] because it solved a problem of having to warn her about her performance at work which had become a problem over previous months. Ms Krstic gave evidence that she assumed Ms Biundo would be leaving the firm; she "would have" told the partners something to the effect that they would not have to deal with Ms Biundo's performance, in effect because Ms Biundo would "terminate" herself [T160]. When Ms Biundo told her in early February that she would be leaving about six weeks before the baby was due, she again felt "relief" [T138] at the news because she had overheard others talking about how Ms Biundo was not pulling her weight, and she was becoming "a little unpopular" with the other staff [T138]. According to Ms Krstic, she had suggested to Ms Biundo that she reduce her days to four per week so she could attend medical appointments; in reality, doing so would mean she would be around less and that would ease the situation. Ms Biundo appears to have been unaware of this.
Ms Krstic denies that Ms Biundo used the term "maternity leave", or any reference to it, either during their conversation in early February or at any time at all. Ms Krstic maintains that, had Ms Biundo used the words "maternity leave" when they spoke in February, she would have gone and spoken to the partners who make those kind of decisions concerning staff; no one had ever taken maternity leave before and she would not have known what to do. She conceded, however, that at the time of her conversation in February 2001 with Ms Biundo, she did not know anything about the procedures for taking maternity leave. Ms Krstic said that she had only really found out about maternity leave subsequently, when her own daughter had taken it.
Mr Macnish maintains that, while it was possible that Ms Krstic had failed to act on a request from Ms Biundo for maternity leave, he considered it highly improbable; had the matter been raised, Ms Krstic would have been down to see him "like a shot" [T87], and if the request had been made he was sure Ms Krstic would have asked when Ms Biundo intended to return; in any event, Ms Krstic would have known she had no authority to deal with such a request and would have raised it with Mr Cocks or himself. Mr Cocks says he believes Ms Biundo would have known that a matter of such significance would need to be taken up with him or Mr Macnish, although it is not clear, from the evidence, what was the basis for his certainty about this.

3 April 2002

On or about 3 April 2002, there was a further conversation between Ms Biundo and Ms Krstic. Ms Biundo says that, on that day, she went to see Ms Krstic to discuss her return to work; her twelve months was due on 11 May, which was a Saturday, and so she wanted to confirm the actual date of her return. Ms Biundo maintains that she and her husband had discussed matters and thought they could manage if Ms Biundo returned to work, at least initially, two days per week with the aim of gradually increasing her days.
Ms Biundo gave evidence that she asked Ms Krstic if 11 May would be a suitable date on which to return "from maternity leave" [T30]. Ms Krstic told her that there was no work available; there was nowhere for her to sit; she would weigh up the pros and cons and speak to the partners. Ms Biundo maintains that she said she would prefer two days per week but, if that was not possible, she could work four days "as when [she] left on maternity leave" [T30]. Ms Krstic said she would have to speak to the partners. Ms Biundo told the Tribunal that she was shocked at Ms Krstic's response; she did not understand it; she thought she had left on maternity leave and was due to return in a year. She left the office and went around the corner to see her husband.
Ms Krstic denies that Ms Biundo said words to the effect that she had come to see about returning from maternity leave; as she understood the conversation, Ms Biundo had come to see if there was any work available as she was hoping for a couple of days per week; as there was none available there was nothing to offer her. Ms Krstic denies that Ms Biundo mentioned working four days per week if two days was not suitable.
Ms Biundo says that, on 10 April, when she had not heard from Ms Krstic, she telephoned her again; Ms Krstic told her a letter was in the post explaining her "employment situation"; when she told Ms Krstic she had not received the letter, Ms Krstic told her that "you were terminated" [T34].
Ms Biundo subsequently received two letters from Cocks Macnish. She received the first, dated 9 April, on 11 April. In evidence Mr Cocks said that he had signed the letter. The relevant parts read:
Dear Sue
RE: APPLICATION FOR PART-TIME EMPLOYMENT
Further to your conversation of 3^rd April with our Wendy Krstic regarding the possibility of employment, unfortunately we do not have any vacancies at the moment, but if one arises that may suit your requirements, then we will contact you.
If we can be of any assistance in the provision of a reference, please do not hesitate to contact us.
We would like to take this opportunity to wish you every success in your future endeavours.
On 11 April 2002, Ms Biundo delivered to the respondents the following letter:

Dear Wendy
MATERNITY LEAVE
I refer to our conversation [on 3 April] wherein I discussed with you my desire to return to work from my maternity leave.
I hereby give notification that I intend on returning to work on Friday 10 May 2002, being 12 months after the commencement of my maternity leave.

Ms Krstic gave evidence that she spoke to Mr Cocks after Ms Biundo's visit on 3 April. She says at that time she was not aware that Ms Biundo was claiming to have been away on 12 months maternity leave; when she subsequently received Ms Biundo's letter dated 11 April, she was "shocked" [T143].
On 12 April, Ms Biundo received a second letter, dated 11 April, from Cocks Macnish. The relevant parts state:
Dear Sue
EMPLOYMENT
When you left your employment with this firm, the possibility that you might one day wish to return was never really discussed.
Certainly you did not them ask if you could return and, equally certainly we did not agree that you could return.
As far as we knew you had permanently ceased your employment and were then going to raise your child.
The simple fact is that there are no available positions and we are not in any position to offer you any type of employment whether permanent or casual.
Given the size of the firm it was never going to be possible, in any event, to have held available for you a position even had you indicated the possibility that you might wish to return one day.
Ms Biundo told the Tribunal that she was shocked by the letter; she had worked for the firm for four years and had loved her job; she could not believe that this had happened. In the following week she made her complaint to the Commissioner and, at around the same time, she started looking for other work.
The respondents tendered in evidence a copy of a memorandum dated 9 April 2002 from Ms Krstic addressed to "The Partners" in which she advises of her conversation on 3 April when Ms Biundo "came into the office and said she would be ready to start working with us again after the 11th of May which she said was the one year anniversary of her leaving to have her baby Isabella".
Ms Krstic told the Tribunal that, even had there been a position available in April 2002, it would have been "difficult" [T146], because of the previous problems with Ms Biundo, to have offered her employment.
It was submitted for Ms Biundo, and the Tribunal agrees, that this is a matter which turns on credibility, principally the credibility of Ms Biundo and Ms Krstic regarding their conversation in February 2001. No one else was present at the time. There is no other direct evidence as to what was said. To assist us in determining which account we accept, we therefore turn to the surrounding circumstances and other evidence.

Ms Biundo's last day at work

On 11 May, her last day at work, there was what seems to have been a low-key lunch for Ms Biundo, organised by Ms Krstic and the other staff. They gave her two presents which she had selected: a portable cot and a change table with a bath and shelves which Ms Biundo thought very generous. The partners were not present but Ms Krstic made a small speech which she conceded could not be described as a farewell or "leaving" speech [T140]. According to Ms Biundo, and Ms Krstic did not disagree, it was to the effect that Ms Biundo was going off to have a baby and here's a present for the baby. There does not appear to have been any reference to the fact that Ms Biundo was leaving permanently after four years with the firm. Ms Biundo told the Tribunal that she did not say goodbye to the partners but said to others words to the effect that she would see them soon. She claims that, in the course of the day Mr Macnish jokingly said to her that she could have a week or two off but she would then have to come back to work. Mr Macnish disputes this and maintains that neither jokingly nor otherwise did he say Ms Biundo could have two weeks off because his understanding was that she had resigned and ceased her employment with the firm.
Also on her last day, Ms Biundo received a pay slip which included what she described as her "holiday accrual" [T56] and one day unused sick pay. Under cross‑examination she stated that she thought that was what happened when you go on leave: you get all your pay then you come back and start afresh. It did not strike her as odd, or as having any significance for her employment status, that she was paid all her accrued entitlements; she assumed that that was what happened when one went on extended leave. She did not receive a separation certificate. Ms Krstic told the Tribunal that it was not the firm's practice to issue separation certificates unless asked to do so.

Conversations with others about leaving and returning

It was not disputed by the respondents that Ms Biundo never said to Ms Krstic or anyone else in the firm that she was resigning or that it was not her intention to return to the firm. Indeed, there seems to have been a remarkable lack of curiosity or even interest in her plans. No one asked her how she and her husband would manage on one income, or when, or whether, she planned to work again. Ms Biundo told the Tribunal that some of the other staff considered she was "lucky by leaving work for a year" [T27] to which she had responded, "Well, you know, of course, I'll have to come back because unless I win Lotto I can't really afford not to" [T27]. However, no one could recall this comment.
Although she maintained in her evidence that she would have told Ms Jodie Foskett, a legal secretary and her closest friend in the office, of her intention to return to work after having the baby, under cross‑examination Ms Biundo could not recall actually having done so. She said she recalled "very vaguely" [T55] a conversation with Ms Narelle Wundenberg, an accounts clerk, who herself wanted to have a baby, about pregnancy, going on maternity leave and coming back to work. She also thought she had had a conversation with Ms Joanne Doman, another legal secretary, who was in the process of getting married, about getting married and having babies and working.
Mr Macnish, Mr Cocks, Ms Krstic, Ms Foskett, Ms Wundenburg, and Ms Doman all gave evidence that they could not recall any occasion on which Ms Biundo had mentioned her intentions after the birth of her baby. Mr Macnish, Mr Cocks and Ms Krstic said they had firmly believed she had left Cocks Macnish permanently. Ms Foskett said that she used to have lunch with Ms Biundo when they worked together but she could not recall any discussion of whether she intended to return to work. However, Ms Foskett was "a little bit surprised"[T229] when in 2002 Ms Biundo sought to do so. Ms Doman could not recall whether or not she expected Ms Biundo to return to work.
The other secretaries all went to see Ms Biundo in hospital at least once and she recalled two of the solicitors visiting her. After the birth of the baby, Ms Biundo visited the office several times to show them the baby. Ms Biundo stated that she could not remember what was discussed during these visits; she could not recall any conversation about when she was coming back to work. However, she was adamant that at no time did she give any indication to the effect that she was not coming back.
Ms Krstic gave evidence that she was "definitely not" [T139] expecting Ms Biundo to come back to the firm, and further that everyone in the office assumed that Ms Biundo was leaving for good.
Ms Biundo gave evidence that, before she left on 11 May, she trained another young woman, Ms Christine Moscio, to be a secretary in her place; Ms Moscio was to sit at her desk. She did not at any time speak to Ms Moscio about returning to work after the birth of her baby.
Mr Biundo stated that he never discussed with either Mr Cox or Mr Macnish when they came in for haircuts while Ms Biundo was on leave, the possibility of her returning, even though he agreed that they had discussed her and the baby. He told the Tribunal that there was no need to discuss when she was returning, that it was obvious.
In response to questioning by the Tribunal Ms Biundo said that, after the firm's position in respect of her returning became clear, she did not go to anyone in the firm to ask what they understood her position to have been, or to support her. She maintained that Ms Julia Routley was surprised that she was not coming back but, otherwise, they did not discuss her conversation with Ms Krstic or Ms Routley's understanding of matters.

Evidence of Mr Biundo

Mr Biundo gave evidence that it was Ms Biundo's intention to commence 12 months maternity leave in May 2001; it was never their intention that she leave work permanently; they could not afford for her to do so because they were building a new house and had the added expense of a child. He told the Tribunal that, coming as he did from an Italian family, he thought it important for a mother and child to have time together; they had planned to be without Ms Biundo's income for 12 months and had been confident they could manage, but that they could not afford any longer than 12 months.
Mr Biundo says, in April 2002, they discussed Ms Biundo returning to Cocks Macnish from maternity leave; they agreed that it would be preferable if she were to return initially on a two day a week basis with a view to her eventually returning full time; they were aware that this arrangement would entail a financial sacrifice, but they believed it was important that mother and child be together as much as possible; aside from that they had a little money put aside to tide them over; they also decided that, if she were offered no alternative by the firm, she would return to work full time.
Mr Biundo told the Tribunal that he was "in disbelief" [T97A] the day that Ms Biundo came to tell him about the conversation she had just had with Ms Krstic. He told the Tribunal that their friends were "in disbelief" [T111A] when they heard that Ms Biundo was not able to return from maternity leave. No evidence was led from any friends or family as to what they understood of Ms Biundo's employment status.
It was suggested by Ms Lee that, during the period of Ms Biundo's leave and while they were finishing building their house, the couple had financial difficulties and it was these that motivated them to have Ms Biundo seek to return to work in May 2002. Mr Biundo did not disagree that things were tight financially, but he refuted any suggestion that this led to a decision to seek employment with Cocks Macnish or an attempt to portray her resignation as taking maternity leave. Despite some financial sacrifice, they did not discuss her returning to work any earlier than 12 months because he wanted her to stay with their baby for that period.

The reference from Julia Routley

In support of her claims, Ms Biundo submitted a reference letter dated 8 May 2002 from Julia Routley, a solicitor with Cocks Macnish. Ms Biundo told the Tribunal she asked Ms Routley for the letter to assist her when looking for employment. While Ms Biundo could not recall clearly her conversation with Ms Routley when asking her for the reference, she thought that she had recounted briefly her conversation with Ms Krstic and asked Ms Routley for the reference; Ms Routley said there would be no problem; she would "run it past" [T37] Ms Krstic and let Ms Biundo know when it was ready. The relevant parts of the reference state:
"Suzanne Biundo was my legal secretary from 4 December 2000 … until 10 May 2001, when Suzanne left the firm on maternity leave." [italics inserted]
Ms Biundo claimed in evidence that she met Ms Routley in King's Park to get the reference; Ms Biundo noted the reference to "maternity leave"; she asked Ms Routley if she had shown the letter to Ms Krstic to which she replied that Ms Krstic had "okayed it" [T39].
Ms Routley, who at the relevant time was an articled clerk, says that, although she had stated in her written reference of 8 May 2002 that "Suzanne left the firm on maternity leave", she had not used the term in any technical sense; she had only had in mind that Ms Biundo "was pregnant and she left to have a baby" [T198]; when Ms Biundo left to have her baby in 2001 she had not known whether she intended to return to work or not. Although she told Ms Biundo when she handed her the reference that Ms Krstic had "okayed it", Ms Routley said in evidence that she gave a copy to Ms Krstic because Ms Krstic kept the personnel files, but she did not know whether she had read it. Ms Krstic could not recall sighting the reference at that time. Mr Macnish said he had neither seen nor approved it.

Evidence about Ms Biundo's performance

The Tribunal heard a good deal of evidence about Ms Biundo's work performance, some of which clearly came as a surprise to her.
Mr Cocks gave evidence that Ms Biundo had only worked for him directly for a short time. In his opinion, the standard of her work was initially good but had deteriorated from the time she and her husband purchased a property in Ascot Waters and started building a house. Mr Cocks recalled being told Ms Biundo was making a large number of personal telephone calls in work time to resolve difficulties with the builder. Mr Cocks recalled the firm's electronic logging system indicating that on one day she had made 12, perhaps 18, personal calls, and up to 8 on other days. Mr Cocks said it seemed Ms Biundo had become preoccupied with her house building, and her productivity and interest in the job had diminished as a result; he recalled speaking to her on three occasions about the calls and thought he might also have set out his concerns in writing. However, he made no notes of these contacts and could not find a record of a letter. Mr Cocks told the Tribunal that the number of calls decreased after he spoke to Ms Biundo but, based on what he was told and observed, her work standard did not improve to an acceptable level.
Mr Macnish gave evidence that he had heard from others in the office that Ms Biundo's performance was unsettling to other secretarial staff; however, since he then and now spends most of his time in court and does not concern himself with the minutiae of the office, he did not know any of the details. He thought, however, that towards the end of her time with the firm, there had been a "feeling of dissatisfaction" with her because of the phone calls and their effect on other staff.
Ms Krstic gave evidence that, because of the phone calls, some of the secretarial staff had felt that Ms Biundo was "not pulling her weight" [T155]. Under cross‑examination Ms Krstic could not give concrete instances of the complaints but said some were made by staff in general conversation, and some directly to Mr Cocks. She recalled that she and Mr Cocks "sort of discussed that if things didn't improve we would have to seriously look at [Ms Biundo's] position" [T157]. Ms Krstic gave evidence that the photocopying and faxing ceased after the house had been built, but the personal phone calls and excessive internet usage continued.
Ms Jody Foskett, a legal secretary, said that she had not heard any complaints about Ms Biundo and specifically had not heard any complaints about her making personal telephone calls. On the other hand, Ms Joanne Doman, also a legal secretary, stated she was aware and concerned that Ms Biundo spent time on the telephone to her husband and contractors about the building of her house. However, she could not recall talking to anyone else about this and she could not recall complaints about Ms Biundo's work performance in the months preceding her leaving to have her baby.
Ms Biundo disputed that Mr Cocks spoke to her three times about her personal calls and stated that there was only one conversation. Otherwise, she maintained that she was not aware of the concerns expressed by Ms Krstic and the partners. In any event, it was evident that, at least in the minds of Ms Krstic, Mr Macnish and Mr Cocks, there was a question mark over Ms Biundo's future with the firm.

Cocks Macnish personnel practices and policies

Ms Biundo gave evidence that, when she commenced her employment with Cocks Macnish, other than a declaration for tax purposes which she believes she completed, nothing was put in writing. She told the Tribunal that, if she or others wanted leave, they would talk to Ms Krstic who would note the request on forms which she kept for that purpose (and which were tendered in evidence). Ms Krstic would give her approval (or not) verbally. Staff would submit a medical certificate to cover any sick leave but, otherwise, Ms Biundo never completed any forms in connection with her employment. Although there was evidence before the Tribunal of some records in connection with staff leave, the respondents did not dispute that there was no general practice of requiring anything to be in writing.
Evidence relevant to the respondents' human resource management policies, procedures and practices was given by Ms Biundo, Mr Macnish, Mr Cocks and Ms Krstic, the office manager at Cocks Macnish.
Mr Macnish told the Tribunal that ultimate responsibility for the hiring and dismissal of non‑legal staff rests with Mr Cocks and himself as directors of Tenna; except in the case of his own personal secretary he plays no part in the staff selection process which is delegated on an ad hoc basis to Ms Krstic. Ms Krstic is responsible for the management of the non‑legal staff in respect of such day-to-day matters as annual leave and sick leave, but has no power to hire or dismiss; she is not qualified to deal with certain matters such as a worker's compensation claim.
Mr Macnish emphasised that Cocks Macnish is a small firm and, because of that, it does not have all the human resource management policies such as might be found in a large law firm. For that reason there is no induction book, equal opportunity book, sexual harassment policy, anti-discrimination or anti-sexual-harassment policy. Mr Macnish did not see any particular need for such policies: he told the Tribunal that he has been practising law for 35 years and would know if a person was being sexually harassed. He did not consider that it was the employer's responsibility to inform staff of their entitlements.
Mr Macnish told the Tribunal that the firm has no written policy or procedures in respect of maternity leave. Prior to Ms Biundo, no member of staff had ever raised the issue of maternity leave. If a staff member wished to take maternity leave he would expect them to raise the matter with Mr Cocks or himself. Alternatively, if a request was put to Ms Krstic, he would expect her to raise it with Mr Cocks or himself since she would know she did not have the authority to deal with it. If a hypothetical female or male staff member requested 12 months leave for any reason, including for parental leave, he would deny the request because he would not be in a position to guarantee what happened in 12 months' time. The same would apply if Ms Krstic sought extended leave for any reason. He did not agree that this approach affected women primarily and maintained that it applied irrespective of whether the person was seeking maternity leave or a long period of leave for some other reason.
Mr Cocks confirmed, for the most part, Mr Macnish's account. He agreed that the firm had no procedure or forms in respect of maternity leave but he had no obligation to inform staff of their entitlements. However, a staff member would be aware that "if they fall pregnant, if they want to come back to us after they've had the child, they ask us if they can do so" [T259]. He told the Tribunal that, since 2002, two solicitors had requested maternity leave, in one case of 20 weeks. Their requests had been accommodated because the firm had been able to plan for them to come back.However, it normally would not be possible to approve 12 months leave, particularly if the standard of the person's work was in doubt.
A copy of the "Cocks Macnish Office Manual" was tendered in evidence by Mr Cocks. He said he thought the manual was in place in 2000 and 2001 and that he had given an instruction that the manual be given to all staff. However, he was uncertain whether this had happened. The Manual sets out office rules or guidelines to be followed by all staff of the firm in areas such as confidentiality, file management, correspondence and other work-related matters. Issues such as punctuality, personal telephone calls, dress standard, and procedures relating to holidays, sick leave and overtime are also covered. The manual does not refer to maternity leave or how to apply for such leave, nor to the procedures to be followed on a person leaving the firm.
When asked whether any courses or seminars had been conducted to raise awareness of discrimination issues and equal opportunity issues in the workplace, Mr Cocks responded that there had not. He observed that Cocks Macnish was a small firm with a "particularly good work environment" and long‑standing employees. For these reasons and because "everyone gets on so well" [T262], the conducting of such courses or seminars was not considered to be a priority.
Ms Krstic told the Tribunal that there are no hard and fast rules in respect of whether staff must state in writing when they leave the firm: "Some people do, some people don't" [T144]. The firm has no particular instructions about maternity leave. When one of the legal staff recently requested maternity leave, Ms Krstic took her written request to Mr Cocks for his consideration and approval. However, Mr Macnish, Mr Cocks and Ms Krstic maintained they could not accommodate leave of 12 months, regardless of circumstances.

Consideration of issues

We will deal with the issues in turn, firstly:

(i) did Ms Biundo intend taking maternity leave when she left work on 11 May 2001?

We are satisfied, on the evidence before us, that at all material times it was Ms Biundo's intention to take maternity leave following the birth of her baby. She was aware that she was entitled to twelve months maternity leave although she was not aware of the statutory requirement for written notice to be given to an employer. She and her husband gave evidence, which we accept, that they had discussed what would happen after the baby was born and decided that she should spend the first year at home with their baby. Mr Biundo attributed the decision to his Italian background but it is not in any case an unusual decision. Indeed, it is the very purpose of maternity leave. It is clear that the decision would cause them some financial strain but one they were prepared to live with. We accept that Mr and Mrs Biundo were building a new home and a child would mean additional costs; a decision to leave work permanently, although one that some others might have taken, would have imposed an almost impossible financial burden. We accept their evidence that they could not afford to have Ms Biundo give up work permanently and that it was never their intention that she do so. We accept that they hoped that Ms Biundo could return to work, at least initially, for two days each week with the aim of increasing her hours over time; that, if that was not acceptable to the respondents she would work four days a week and, if there was no alternative, that she would return to work full‑time.
To find otherwise would mean that, at all material times Ms Biundo intended to resign from her employment when she left to have her baby and that, for some reason she later decided that she wanted to take up work again with the respondents and concocted a plan to go back to them just before 12 months from when she left, to make it look as if she had always expected to return. We do not accept, on all the evidence before us, that this is what happened.

(ii) did Ms Biundo advise the respondents that she intended taking maternity leave?

We now turn to examine more closely the conversation between Ms Biundo and Ms Krstic in February 2001 and the circumstances of Ms Biundo's departure from work. Ms Biundo claims that she told Ms Krstic that she intended going on "maternity leave". Ms Krstic denies those words were used. She maintains that, had Ms Biundo used that expression, she would have been alerted to something unusual which had never arisen before, which she knew nothing about and which she would have had to refer to the partners.
In support of Ms Krstic, Mr Macnish claims that, had Ms Biundo used those words, Ms Krstic would have been down to see him "like a shot" [T87]. We do not accept, in all the circumstances, that this is what would have happened. By her own evidence, Ms Krstic knew almost nothing about maternity leave, whether described by that term or otherwise; she had no experience of maternity leave; no one had previously taken maternity leave in the firm; in fact it had been a very long time since there had been a pregnancy in the office. She knew nothing about the statutory procedures or entitlements; she was not aware of the firm having a maternity leave policy. We are not satisfied, in all the circumstances, that any alarm bells would have been triggered in Ms Krstic's mind, whether or not the particular expression "maternity leave" was used; the implications of such a request simply would not have occurred to her.
We note that, in her Points of Claim, in both their original and amended forms, Ms Biundo refers to telling Ms Krstic that she intended taking "parental leave". Now that fathers as well as mothers are entitled to leave on the birth of a child, that is the correct term, and the documents may reflect no more than a technical approach. We have some doubts as to whether Ms Biundo actually used the expression "maternity leave" but, on balance, we give her the benefit of the doubt and accept she referred to "maternity leave" in the course of her brief conversation in February 2001 with Ms Krstic. However, whether or not Ms Biundo used those particular words is not in our view critical to the issues before us. We are satisfied in the circumstances that that is what she intended to convey, and thought she had conveyed, to Ms Krstic.
Ms Krstic gave evidence that, both when Ms Biundo told her in late 2000 about her pregnancy and again in February 2001 when they discussed her "leaving", she felt relieved that she would not have to deal further with what she considered was becoming a problem with Ms Biundo's work performance and dissatisfaction among other staff with her failure to "pull her weight". There seem to have been differing understandings within the office of Ms Biundo's performance and her likely future with the firm. In any event, according to Ms Krstic, her performance was becoming a problem and one she did not look forward to dealing with. We are satisfied this had a clear effect on Ms Krstic's approach to, and understanding of, her conversation with Ms Biundo.
In our view, Ms Krstic heard what she wanted to hear: that Ms Biundo was pregnant and "leaving" to have a baby; she did not need to hear more. She did not see any need to clarify what Ms Biundo meant by "leaving". By her own evidence, she assumed Ms Biundo would be leaving and "would have" told the partners something to the effect that they would not have to deal with Ms Biundo's performance because she would "terminate herself".
Ms Krstic could not recall Ms Biundo asking whether she needed to put anything in writing about her departure or telling her it was not necessary to do so. On this point we prefer Ms Biundo's evidence. Although Ms Biundo was used to the firm's practice of requiring little if anything in writing, it is something most people would expect to do and which Ms Biundo was used to in previous workplaces. Moreover, the response that she claims Ms Krstic gave was consistent with the firm's practice. We are satisfied that this exchange occurred.
Had Ms Biundo put her intentions in writing, it is probable that her intentions would have been clear and the respondents' attention would have been drawn to them. Although she was not asked when giving evidence, and did not say, in what terms she would have given any written notice, it is more probable than not that it would have included some reference to "maternity leave" or a period of 12 months or a return date, and that the respondents would have been alerted to her intentions.
In telling Ms Biundo that there was no need to put anything in writing, Ms Krstic cut off the possibility of clarifying in that way the circumstances in which she was leaving the firm. Further, in not clarifying her intentions with Ms Biundo, Ms Krstic acted to Ms Biundo's detriment in giving her to understand that they were talking about the same thing. From that point, nothing the respondents said or did gave Ms Biundo any reason to think other than that she was going on maternity leave.
In making our findings as to Ms Biundo's intentions and what happened subsequently, we have considered the following evidence. Firstly, why did Ms Biundo not question Ms Krstic's advice that nothing was required in writing; the mere fact of an entitlement to 12 months parental leave does not mean that everyone necessarily takes that long ‑ often a lesser period is requested, or may be negotiated. However we accept that Ms Biundo understood there was an entitlement to 12 months maternity leave and assumed that, as a legal practice, her employers would know about the entitlement and what was required. It was not unreasonable for her to assume the respondents would know the relevant legal entitlements. Many employees have little or no understanding of personnel practices and entitlements. We accept, in light of the respondents' personnel practices generally, that nothing about her final pay alerted her to the fact that she was being "terminated". It is also relevant that, although there was a form of send‑off on her last day, there is no evidence of a farewell speech and no one actually said goodbye as might be expected when an employee leaves permanently after four years.
The almost complete absence of discussion about Ms Biundo's future plans, how she would cope financially, whether she planned to return or indeed work again at all, seems most unusual, especially among the young women in the office. But other than a very vague recollection of one or two conversations, Ms Biundo did not dispute the evidence of others, that this was how it was. Whether this was the result of the culture in that workplace we cannot say. Possibly, if others were also relieved to see Ms Biundo leaving, a collective sigh of relief went through the firm and a kind of silence descended. All the witnesses, including Ms Biundo, agreed that there was no discussion about Ms Biundo returning to work at the firm after the birth of her baby. Nor was there any discussion about her resigning.

Ms Biundo's failure to question all these things does not in our view undermine her evidence of what she understood the position to be.
We are satisfied that Ms Biundo went to see Ms Krstic on 3 April 2002 in the honest belief that she was due to return to work on or about 11 May. At the same time, we accept that Ms Krstic and others were genuinely surprised when she turned up. In Ms Krstic's mind, when Ms Biundo left the firm on 11 May 2001, that was the last of her. She had been "terminated".
As noted above, the alternative to accepting Ms Biundo's explanation for her visit to Ms Krstic on 3 April would be to find that, Ms Biundo had intended to resign and considered her employment ended when she left work on 11 May 2001. Further, that she later concocted a plan to pretend she had thought she was on maternity leave. There is another explanation which, on the evidence before us, we consider more probable and which we prefer.
The respondents have argued that Mr and Mrs Biundo's financial difficulties motivated her to seek to return to work.
The evidence before us indicates that Ms Biundo and her husband went through a period of some financial difficulty after she stopped work, and subsequently. It is also evident that Mr Biundo's business was somewhat up and down throughout this period. Things were not easy for them financially; having a second income when Ms Biundo returned to work was clearly going to help. However, we do not accept the respondent's submissions that the Biundo's financial difficulties led, in effect, to a plan to make out that she had always understood she was on maternity leave. We prefer the simple explanation that going to see Ms Krstic on 3 April 2002 was entirely consistent with Ms Biundo's expectation that she was returning to work from maternity leave.

(iii) did the respondents act unlawfully by discriminating against her on the ground of her sex or pregnancy?

The mere fact that an employer may have "inadequate managerial practice" is not a matter for this Tribunal. However, evidence of those practices may throw some light on the complaint of discrimination: Gibbs v Australian Wool Corporation (1990) EOC 92‑327. Nor is a claim of a breach of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act) a matter for this Tribunal but rather one for the WA Industrial Magistrates Court.
Ms Biundo must establish that the failure of the respondents to allow her to return to work was on the grounds of her sex or her pregnancy. She must establish, on the balance of probabilities, that they treated her less favourably than, in the same circumstances or circumstances which are not materially different, they would treat, or have treated, a person of the opposite sex or a person who was not pregnant. She must establish that the reason for the less favourable treatment was her need to take extended leave – in this case 12 months – just before, and after, the birth of the baby. The discriminatory conduct need not be the dominant or substantial reason for the conduct complained of: s 5 EO Act
In circumstances such as this, where there is no direct evidence of discrimination, it is open to the Tribunal to determine that there are objective facts from which an inference of discrimination, or otherwise, can be drawn:
"If the facts before explanation contain no direct proof of discrimination …[the Tribunal] may still be able to draw an inference of discrimination of the kind charged; if the proper inference in the absence of explanation is discrimination of the kind charged, and there is either no explanation or an unacceptable explanation, then the inference of discrimination of the kind charged will mean the complaint succeeds: Department of Health v Arumugam, [1988] VR 319."
There has been considerable discussion in the authorities of the meaning of words like "by reason of", "because of" and the term used in the EO Act, "on the ground of". An intention to discriminate is not necessary but those forms of words import a causal connection: a deliberate act done with the knowledge of the characteristic of the complainant on which the discriminatory act is performed: Waters and Ors v Public Transport Corporation (1991) EOC 92‑390.
In order to find that Ms Biundo was treated less favourably than another in the same or not materially different circumstances, there must be, at least notionally, a comparator who would have been treated more favourably. Several have been suggested here. In Thomson v Orica Australia Pty Ltd [2002] EOC 93‑227, Allsop J suggested three possible comparators in a case such as this including a person of similar employment status who did not take leave. Ultimately it is a matter for the Tribunal who is the appropriate comparator: Jenkins J Cocks Macnish & Anor v Biundo above.
It is settled that taking maternity leave is a characteristic that pertains generally to persons who are pregnant: HREOC v Mt Isa Mines Ltd & Ors (1993) 46 FCR 301.
It is evident in this case that Ms Biundo's work performance was a factor in the respondents' attitude towards her "leaving". It was what made Ms Krstic relieved and led to her failing to question Ms Biundo further about her intentions. It is possible that Ms Krstic or Mr Cocks would in time have dealt with Ms Biundo's performance more formally but we cannot know that. What is clear is that Ms Biundo's pregnancy provided an opportunity for her employment to cease. Ms Krstic's references to Ms Biundo "terminating" herself, and having been "terminated" in May 2001 are instructive. Had Ms Biundo not been pregnant, her poor performance would have had to be dealt with differently or not at all. However, her pregnancy and her wish to take extended leave in connection with it, gave the respondents an opportunity which, in effect, they took.
Mr Macnish maintains that neither Ms Biundo's sex nor her pregnancy was a factor in her treatment; anyone seeking extended leave would have been treated in the same way; the firm would not have given 12 months leave to anyone. In his view, there could therefore be no discrimination. We do not entirely accept. Firstly, we do not accept that any period of extended leave would always be refused. We do not accept, for instance, that a long term and highly valued employee like Ms Krstic would be refused extended leave in special circumstances as Mr Macnish claims. Secondly, his evidence was not supported by Mr Cocks who said each case would be decided on its merits. In fact, two of the employed solicitors have taken periods of maternity leave since 2002. The one point on which both Mr Macnish and Mr Cocks agreed, however, is that no employee would be given 12 months leave. They went so far as to state in their letter dated 11 April 2002 that it was "never going to be possible" to allow leave of that length even if Ms Biundo had indicated a desire to return.
Moreover, a policy like the respondents', to refuse extended leave and a decision made in accordance with it, regardless of whether lawful or not, must affect female employees differently from male employees. Even without the statutory entitlement to 12 months leave (after a qualifying period of employment) women who leave to have babies are more likely than others to seek an extended period of leave after the birth of a baby. It is evident that the respondents have been able to accommodate a lesser period of parental leave in the cases of two female employees since 2002. It was Ms Biundo's pregnancy that gave rise to her request for extended leave and, ultimately to her dismissal.
An omission to tell someone something, to their detriment, can amount to unlawful discrimination (Cocks Macnish & Anor v Biundo above Jenkins J at [42]). In advising Ms Biundo that she need not put anything in writing, and in failing to clarify with her what her intentions were, Ms Krstic acted to Ms Biundo's detriment. Ms Biundo was effectively denied an opportunity to state clearly her intentions. Moreover, nothing that was said or done in the six weeks or so before she left on 11 May 2001 alerted her in any way to the possibility that her employers considered her employment at an end. We find that Ms Biundo's pregnancy was the characteristic that gave rise to the respondents' conduct and that that conduct amounted to unlawful discrimination on the grounds of her sex and her pregnancy.
Constructive dismissal is an unlawful termination of a contract of employment in circumstances where an employee leaves, without an express act or enunciation of dismissal by the employer. It will be taken to be a dismissal (hence the work "constructive") if the employer has behaved towards the employee in a way that entitles the employee to treat the employment at an end: Thomson v Orica Australia Pty Ltd above Allsop J at [141].
It is clear that, in the respondents' minds, Ms Biundo's employment ceased on 11 May 2001. For the reasons set out above, we are satisfied that she was not aware that her employment was regarded as terminated at that time. She was entitled to regard herself as constructively dismissed either on 11 May 2001, or on 3 April 2002 when advised by Ms Krstic that she had been "terminated" the previous May as confirmed in writing by letter dated 11 April 2002.
We find that the second respondent, who was Ms Biundo's employer, discriminated against her unlawfully on the ground of her sex and her pregnancy. We find that the first respondent, to whom the second respondent provided Ms Biundo's services and to whom at all times the first respondent was answerable acted unlawfully in breach of s 160 by causing, instructing, inducing, aiding or permitting the second respondent to act in that way.

Damage and compensation

We turn now to the question of the nature and extent of Ms Biundo's loss as a result of the respondents' actions.
Section 127(b)(i) of the EO Act provides that the Tribunal may, after finding a complaint substantiated, order a respondent to pay damages to the applicant, not exceeding $40 000, by way of compensation for any loss or damage, suffered by reason of the respondent's conduct. Other orders may be made where appropriate.
Generally, the purpose of an order to pay damages, is to place the applicant in the position she would have been in if the discriminatory act had not occurred – see Haines v Bendall (1991) 172 CLR 60. We can therefore order the payment of special damages to cover Ms Biundo's economic loss (so long as it is caused by the respondents' conduct) and general damages for hurt and humiliation and loss of self esteem. There must be clear evidence of the loss incurred and where appropriate sufficient professional medical evidence setting out any reasons why an applicant has not mitigated their loss – Evans v National Crime Authority [2003] FMCA 375. Ms Biundo has a duty to mitigate her loss.
Ms Biundo stated in evidence that at the time she sought to return to work at Cocks Macnish she had confidence in both her abilities as a legal secretary and her knowledge of the areas of law practised at the firm; having worked there for four years, she was eager to start back at work. She claims that, when she learned she would not be returning to the firm she was shocked and very hurt, and her sleeping and eating were affected. She says her sleep is still disturbed and she wakes every three or four hours. On account of these difficulties she saw her general practitioner who suggested medication but Ms Biundo decided against taking sleeping tablets or other medication for the 18 months she was breast feeding. Since April 2003 she has been taking Mersyndol to help her get to sleep and stay asleep.
In his evidence to the Tribunal, Mr Biundo stated that Ms Biundo had been hurt and humiliated by the respondents' actions and had suffered significant loss of self esteem as a result; these things had placed a strain on their relationship and had led to arguments. With respect to the effect on her socially, Mr Biundo said they have very good friends and these relationships have not been affected.
Ms Biundo claims she has suffered financial losses as a consequence of the respondents' actions. She says it has been necessary to budget more carefully, for example, she and her husband now do not go out to dinner as often as they did before, and only run one car; however, with her working part‑time and her mother‑in‑law helping with baby‑sitting they are "coping" [T48]. Whilst still on maternity leave she had commenced assisting in the preparation of her husband's quarterly BAS statements. Initially, she received some training from her husband's accountants who also gave her the manuals for their accounting software programme, MYOB. She collected invoices and statements from her husband, and, guided by the manuals, entered the required information on her home computer and assigned the relevant codes. She then transferred the file to a disk which she gave to the accountants. In October or November 2002 she completed an $800 course in MYOB and then began completing the quarterly BAS statements by herself. Their accountant had placed a value of $10 000 per annum on this work.
Ms Biundo says that, when she spoke with Ms Krstic in April 2002 about returning to work, she expressed her preference for working two days a week but added that, if required, she could work more than two days. Her mother‑in‑law had agreed to baby sit for two days a week and she had hoped to build up to three or four or even five days after six months when her daughter turned two and commenced day care.In anticipation of increasing the number of days she would work, she enrolled her daughter in a day care centre to start in June 2003 and had her name down at another. We find, on the evidence, that Mr and Mrs Biundo had decided the best option was to work two days a week, at least for the first year.
In May 2002 Ms Biundo contacted Ms Routley and Ms Saraceni for references which she received from them in mid May 2002. She then applied for some legal secretarial positions in 2002, providing copies of her resume and references. She did not seek the assistance of a job placement agency or search for positions on the internet, but rather relied on advertisements in the newspaper or word of mouth. Some, but not all, of the positions were part time. Of the jobs that were available at the time, none were in the area in which she had worked at Cocks Macnish and she claims she did not feel confident to seek employment in other areas of the law.
Ms Biundo claims that, at around this time she started looking for alternative work: any work she could get. Eventually she obtained a job‑share position at Office Supplies Sales Pty Ltd in Bibra Lake working five days per fortnight. It is evident from her wages slips that she worked there from 12 June 2002 to 9 July 2003. At the same time she continued to do her husband’s BAS statements. Whilst at Office Supplies, Ms Biundo said she did not actively look for legal secretarial work as she had been out of legal secretarial work for so long and had lost confidence. Nevertheless, she continued to look in the newspaper and sent off "one or two, maybe three" [T65] applications. If she hadn't been doing her husband's books and earning some money that way, and if they had been "really struggling" [T74], she would have worked more.
Ms Biundo left Office Supplies when the person with whom she was job sharing resigned. At this point Ms Biundo again looked for work. On 5 September 2003 she commenced with a law firm, Kuscevich and Associates in Wembley. Initially she worked as a casual employee, but for the year and a half to the date of the hearing she had been working part‑time for two days a week. Since she has been working for Mr Kuscevich she has not applied for any other positions. The terms and conditions of the job include that she is not entitled to sick or compassionate leave, but she does accrue the mandatory employer contributions to superannuation.Ms Biundo gave evidence that her employer has indicated he would be agreeable to her working more when her daughter starts full time school in February 2006, and she hopes to either extend her hours or look for other employment then.
Ms Melanie Davies, called by the respondents as an expert witness, gave evidence that she had been an employment recruiter since October 1999 and has specialised in recruiting legal support staff since 2002. In her view, if a person were looking for part‑time work as a legal secretary, it would make sense to register with a recruitment agency and regularly look for vacancies in the newspaper. When shown a copy of Ms Biundo's curriculum vitae and her references from Ms Routley and Ms Saraceni, Ms Davies said it would not have been a "huge problem" [T220] to place Ms Biundo in a part‑time legal secretarial position in 2002. She agreed that it was a little more difficult to place people who wanted part‑time positions. However, she did not consider that a legal secretary who had been out of the workforce for a year would lose her skills or, given the demand for legal secretaries, that her employability would be affected. Under cross‑examination she agreed that, in general, law firms prefer to employ a person who has worked in the same area of expertise as the firm practices. However, in her view, Ms Biundo's experience at Cocks Macnish, while limited in some respects, would be viewed as "good basic experience".
We find, on the evidence before us, that Ms Biundo suffered a degree of hurt and humiliation, and that her confidence was affected, as a result of the respondents' actions. While not severe, the effect of their actions was to cause her to have sleeping and eating problems, and to require medication. We accept that this placed strain on her relationship with her husband. In light of this, we consider that compensation of $5000 is appropriate as general damages.
Turning to Ms Biundo's economic loss. We are satisfied that, although she was prepared to work four days a week and if necessary five, it was Ms Biundo's intention to return to work in May 2002 for two days each week. She has continued, for the most part, to work two days each week and gave evidence that she hopes to continue to do so until her daughter starts school. After that it was open to Ms Biundo to seek full‑time employment. We accept that her confidence was affected for the first year. We do not accept that she could not have found full‑time employment after that, had she wanted to. We do not accept that her confidence was affected to such an extent that she felt unable to apply for other positions. Her attempts to find work were half‑hearted at best. We accept Ms Davies' evidence that Ms Biundo was employable and could have found full‑time employment had she wanted to. We are satisfied that her decision to continue to work two days per week was, from early 2003, her decision and not a result of the respondents' conduct.
We accept the evidence that, in May 2001, Ms Biundo was earning a gross annual salary of $37 000.09 plus 9% superannuation. We also accept that she earned the following amounts:

2002/2003 financial year

$

22 761

2003/2004 financial year

$

22 025

2004/27 January financial year

$

11 642

$

56 428

However, in each of those years, Ms Biundo includes an amount of $10 000 attributable to her completion of her husband's BAS statements. We consider it highly probable that Ms Biundo would have worked on these statements if she were working two days per week for Cocks Macnish, so we discount the amount earned, by $10 000, as it is an amount applicable to either calculation – her actual situation or her preferred position.
Ms Biundo makes a claim for superannuation but she receives the mandatory 9% superannuation at Kuscevich and Associates. We are of the view that she should have also received the mandatory superannuation loading in her other position at Office Supplies, so we make no allowance for that.

Ms Biundo also includes in her claim the Christmas bonus of approximately $150 per year, which she received at Cocks Macnish. This payment is entirely discretionary in the hands of the partners of Cocks Macnish or the directors of Tenna Pty Ltd. We do not agree that it is appropriate to order its payment.
We are of the view that it is likely that Ms Biundo would have sought to work two days per week for at least the first year and possibly the second, despite booking her child into day care to start in June 2003. At that point, it was Ms Biundo's decision whether or not to increase her hours and she chose not to. It is reasonable to assume the basic gross salary would have been $38 000 plus superannuation of 9% ($3420pa).
However, on the basis that it is reasonable to assume that she would have worked two days per week in the first year after returning to work and allowing for the difference in superannuation and loading we calculate Ms Biundo's special damages at the global amount of $4000. It is very difficult to calculate a precise amount of loss, but that global amount is reasonable and reflects a calculation based on her working two days per week, rather than five, as proposed by her counsel.
We therefore order that the respondents, jointly and severally pay to Ms Biundo a total of $9000.

I certify that this and the preceding [132] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT

2002/2003 financial year	$	22 761
2003/2004 financial year	$	22 025
2004/27 January financial year	$	11 642
$	56 428