Boyce, Janai Kerry v Leggett, William and Anor t/as Baker Bill's Fine Pies

[1997] FCA 1591

FEDERAL COURT OF AUSTRALIA

WORKPLACE RELATIONS - Termination for a proscribed reason - Pregnancy - Workplace Relations Act 1996 (Cth) SS 170 CP, 170 CK(2)(f).

JANAI KERRY BOYCE v WILLIAM AND SUZANNE LEGGETT T/A BAKER BILL’S FINE PIES
AG 49 OF 1997

FINN J
CANBERRA
12 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 49  of   1997

BETWEEN:	JANAI KERRY BOYCE APPLICANT
AND:	WILLIAM AND SUZANNE LEGGETT T/A BAKER BILL'S FINE PIES RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	12 DECEMBER 1997
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 49 of 1997

BETWEEN:	JANAI KERRY BOYCE APPLICANT
AND:	WILLIAM AND SUZANNE LEGGETT T/A BAKER BILL'S FINE PIES RESPONDENT

JUDGE:	FINN J
DATE:	12 DECEMBER 1997
PLACE:	CANBERRA

REASONS FOR JUDGMENT

This is an application to this court under s 170 CP of the Workplace Relations Act 1996 (Cth) (“the Act”) alleging that the respondent, Baker Bill’s Fine Pies, terminated her employment for a reason proscribed by s 170 CK (2)(f) of the Act, ie because of pregnancy. The applicant, Ms Janai Boyce, has elected not to pursue a claim that her employment was terminated harshly, unfairly or unreasonably - a course that would have taken her to the Australian Industrial Relations Commission for arbitration: see the Act, s 170 CFA(3). It is rightly accepted that in consequence of her raising a s 170 CK ground in this proceeding, she is not obliged to prove that the termination was for a proscribed reason. Rather it is a defence if the respondent proves that the termination was for a reason or reasons that do not include a proscribed reason: the Act, s 170 CQ.

A Chronology of Events

1. The respondent is the partnership of William and Suzanne Leggett trading under the name of Baker Bill’s Fine Pies at the City Markets, Canberra.  It has done so since April 1995.

2. In September 1996 Ms Boyce, who was then completing her Year 12 Certificate at school, was engaged by Mr Leggett as a casual employee of the respondent.  Her work was that of a shop assistant.

3. Ms Boyce applied later to the Canberra Institute of Technology to undertake a course on management and Mr Boyce wrote a reference for her.

4. In late November 1996 she was engaged on a full time basis.  Though her actual status (or designation) is disputed, it is clear that she was engaged with a managerial role in mind in the future.  At the time of her engagement she continued to work at the “front of the shop” (ie providing customer service).

5. On 2 December 1996 Ms Boyce, through her boyfriend Mr Chapman, informed Mr Leggett that she was pregnant.  The following day she was moved from working in the front of the shop to working at the back where the pies are made.

6. In mid-February 1997, Mr and Mrs Leggett took holidays leaving a casual employee, a Ms Summons, in charge of the store.  It is Mr Leggett’s evidence that he was informed by Ms Summons that during that holiday Ms Boyce had not performed her duties adequately.

7. On his return to work on 26 February 1997, he says he spoke to other staff members who told him (a) that the applicant’s performance of her duties was poor; and (b) that she was intending to resign.

8. On the same day he called Ms Boyce and informed her she was not required to work that day and that she or her boyfriend should collect her pay.  This was done by Mr Chapman who was then told that her employment had been terminated.  Mr Chapman was told by Mr Leggett that Ms Boyce was “not up to the job” (or words to that effect).

9. On 21 March 1997, Mr and Mrs Leggett signed a handwritten statement of “reasons for Termination”.  It was in the following terms (formal parts apart):

Janai worked for less than 3 months full-time on a trial basis at our shop.  She was employed as trainee shop manager without having any previous experience in this area.  Within 2 weeks of being employed in this position Janai informed us that she was pregnant.  Being a fair-minded person I then offered Janai a position in production on the same basis, for obvious reasons of inability to work the front of the shop, which was the original position offered.  Please note that in the front of our shop there is a 43 cm narrow passageway which is continually being passed through to gain access to the coffee machine and cake cabinets.  One of our benches also comes to a point in this area making it unsafe and unreasonable to expect any pregnant woman to work quickly and effectively in this area.

Janai was trained in different aspects of production where slow work-rate and breakages of equipment were experienced and witnessed.  Her capacity in this area was unsatisfactory.  Janai had been warned on numerous occasions of unsatisfactory workrate.

It is my opinion that trialling a person for 3 months was not an undue or unfair period of time to determine a person’s capacity or ability to handle a management position.  It would be unfair to do so in a lesser period of time and we would be condemned if we did so.

Nearing the completion of the trial period Janai’s position was terminated and 2 week’s pay was forwarded.  According to the award we were not obligated to make this payment in lieu of notice, but did so anyway.  Several of our staff members had also mentioned to us that Janai was only intending to work for us for a short period of time and was intending to leave before the birth of her baby.  Hearsay or not, Janai was still not fulfilling the requirements for what we needed and could not fulfill those of the original position due to her own circumstances.

I feel that this whole situation is absurd.

The Witnesses

Both Ms Boyce and Mr Leggett gave evidence.  Each on occasion gave narratives of discussions or events which, I consider, they wished had occurred but probably had not.  In saying this I do not find either to be guilty of intentional fabrication.  Rather there has been reconstruction by both but from perspectives in each’s case favourable to the version of events each respectively advances.

Mr Chapman and a Mr Hinson (a friend of Mr Chapman who knew Ms Boyce) gave evidence for Ms Boyce.  Mr Chapman’s obvious partisanship for her cause robbed his evidence of real utility.  Mr Hinson’s did not illuminate the matter at all.

Mrs Leggett - now apparently separated from Mr Leggett - was an impressive witness.  While it was Mr Leggett who seems to have taken the decision to terminate Ms Boyce’s employment, Mrs Leggett’s evidence is useful in explaining and corroborating actions and events prior to the termination.

The final observation I would make of the witnesses is that Mr Leggett conveyed the impression of an opinionated and occasionally difficult and self-conceited person.  Both he and Ms Boyce seemed not to communicate well with each other.  In particular he seemed not to have adequately conveyed to her his expectations and criticisms of her.  She, in turn, seemed unable to communicate her apprehensions of him and the effects of her pregnancy on her performance.  I accept Ms Boyce’s evidence of a deteriorating personal relationship.  But I do not ascribe it to her pregnancy.

The Contentious Evidence

(a)     The Applicant’s Evidence

As I noted at the outset, Ms Boyce having raised a s 170 CK prescribed ground, the respondent bears the onus of negating it. Ms Boyce is not required to prove that the respondent acted for such a reason. I would say, though, that on the evidence she has advanced it would be an inference at best that she could rely upon if hers was the onus.

(i)          When she was engaged full-time it was with the object in mind of her being the manager responsible for “front of shop”.  Another person would be manager of “back of shop”.  She accepted though that she would need some knowledge and experience of work at the back.

(ii)         Until her pregnancy was announced she worked at the front and was praised, particularly by Mrs Leggett, for her performance.  After the announcement she was moved next day to the back where she found the work more physically demanding.  She only served at counter during busy periods.  Ms Boyce said she was told she was being moved from the front because of her pregnancy and that she was to learn more about production out back while she was pregnant.  Despite the move, she accepted that neither Mr or Mrs Leggett said anything to suggest there was any problem with her continued employment once they learned of her pregnancy.

(iii)        Ms Boyce found her work out the back difficult because of her pregnancy.  She did not tell Mr Leggett such was the case because she was afraid “due to his temperament”.  His later treatment of her (ie after she worked out the back) contrasted with that earlier when he treated her “very well”.  It was because of her concern about his continuing to treat her “badly” that she mentioned to others that she might not return to her employment after the birth of her child.  But that would only be a last resort step.

(iv)        When Mr Leggett was informed of her pregnancy he made an “informal suggestion” about maternity leave, but in late January 1997 he is alleged to have advised her that she would not be able to take it in July, August or September, these being busy months.  Her child was due at the end of July.

(v)         Ms Boyce claims, incorrectly given the document I have set out above, that she was not given any reasons for the termination of her employment.

(b)       The Respondent’s Evidence
The Leggetts’ explanation of their actions, motivations and the sequence of events is as follows.  Save where I attribute particular evidence to either Mr or Mrs Leggett, the account given is a composite.

(i)          Ms Boyce was taken on to be trained for a management role, but that role was to manage an entire shop.  The work and staffing of the business would not permit separate managers for front and back.

(ii)         When her pregnancy was announced she was moved to the back of the shop.  Mrs Leggett gave the following explanation for the move:

[Q.] Now, it was the case, was it not, that when you were advised - or the day after the applicant informed you and your husband that she was pregnant, that she was moved out the back of the store? --That’s correct.

And the reason for that was that her position has to change because she was now pregnant?---Yes.

She had not changed physically at that stage? Not at that point in time, no.  And the reason for that was because once she reached a point where she couldn’t work out the front of the shop any more and we didn’t know at what point in time she was going to reach what would be considered an advanced state of pregnancy where the baby was beginning to protrude and could have caused a problem movement-wise in the shop, problems for service, speed of service, we decided that she should be moved to the back of the store so that while she was still fully able, still not showing at all and shouldn’t have had any great physical problems, that she should be learning the duties out the back of the store so that when it came time that her pregnancy progressed, then, had we left her out the front of the shop until such times, it would have made it difficult for her to adapt in a short period of time to the back-of-store duties.  So we decided to train her in the back-of-store duties from the time we knew she was pregnant because then she could spend the duration of the pregnancy out the back.

[Q.] You are talking about the difficulties out the front based upon this bench that protrudes? --Just the bench that protrudes and also just the shortage of space out the front.  It is very crammed, it is very condensed.  During busy periods two people have to move around each other.

[Q.]But the applicant is very small herself, is she not? --Yes, but I’ve been pregnant.  I actually worked in one of our shops serving out the front until the day I had my first child, and it became - it was only out of necessity that I had to do that, and it is very, very, very difficult to have other people working around you while you are pregnant..

You worked out the front, when?  Until you had the child? --Until I had my first child, as well as working out the back.

(iii)        Mr Leggett was initially satisfied with her performance out the back but after a while her attitude to “doing things in the right manner dissipated”.  He did not specifically ask her about her pregnancy and how she was coping with work.

(iv)        By the time they went on holidays in February the Leggetts regarded the ten day period they were away as “virtually a test”.  And, in Mr Leggett’s words:

“The response we got from those who we had entrusted to do the things that were necessary was that she had performed poorly"

The decision to terminate her employment was only made then in consequence of the reports so received from Ms Summons and other staff.

(v)         Mr Leggett told Mr Chapman on 26 February that the reason for the termination was that her performance was poor and he didn’t think it would work out.

Submissions and Conclusions

Bearing the onus in the matter, the respondent submits that whether or not the decision to terminate was otherwise harsh, unjust or reasonable, the reasons for it were not related to Ms Boyce’s pregnancy.  Even if her poor performance could in fact be related to her pregnancy - and that was not actually conceded to be so - the pregnancy was not the reason the Leggetts had for terminating the employment.  Insofar as moving her out the back in December was concerned, it was satisfactorily explained and was consistent with the managerial role for which she was being trained.

The applicant asks me to accept that Ms Boyce was engaged to work, then manage, out the front; she performed well there; and she was moved out the back, where she did not work well, because of her pregnancy alone.

I would have to say that while a case could well be made that Mr Leggett has dealt with Ms Boyce with considerable insensitivity and perhaps, has acted unfairly - I express no concluded view on this - I accept that the reasons for termination did not include her pregnancy.  In this I accept (a) the explanation given by the Leggetts (as expressed by Mrs Leggett) for the 3 December move of Ms Boyce to the back of the shop; and (b) their account of the sequence of events leading to, and then the basis for, her being terminated on 26 February.  Whether or not Mr Leggett’s actions at that time were fair I refrain from comment upon.

As I earlier noted, I consider a lack of communication between Ms Boyce and Mr Leggett and a deteriorating personal relationship - possibly affected by Mr Leggett’s own marital difficulties at the time - as probably contributing significantly to what finally occurred.

There are some number of obvious inconsistencies between the reasons given for terminating Ms Boyce’s employment in the March 1997 “Reasons for Termination” and in the evidence given by the Leggetts in this proceeding.  These relate essentially to the nature of the position to which Ms Boyce was appointed, and to the  reasons for moving her on 3 December to the back of the shop.

As to the first of these I consider that the role Ms Boyce was to be trained for, was probably never clearly articulated and this, in turn, was a cause both of misunderstanding between the parties and for persisting imprecision in the evidence given in this proceeding.  The “Reasons” themselves are internally inconsistent on this matter in its reference to “trainee shop manager” and the “original position”.  As to the second, I regard the observations as to “fair-mindedness” etc, as revealing more about the picture Mr Leggett wishes to paint of himself, than as providing an actual explanation of the reasons for the move.

I should add that while one reasonably would have expected evidence to have been given by Ms Summons or by some other staff member working in the shop during the Leggetts’ holiday, given the reasons given by the Leggetts for their decision, no adverse comment or submission on this has been advanced for the applicant.

I conclude, then, that the respondent having satisfied me that Ms Boyce’s termination of employment was not for, or did not include, a proscribed reason, the application should be dismissed.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:

Dated:            11 December 1997

Counsel for the Applicant:	R Coen
Solicitor for the Applicant:	Pamela Coward and Associates
Counsel for the Respondent:	J Constance
Solicitor for the Respondent:	Snedden Hall and Gallop
Date of Hearing:	4 November 1997
Date of Judgment:	12 December 1997