Bukilic and LifeNet (WA) Financial Advice Pty Ltd
[2008] WASAT 213
•17 SEPTEMBER 2008
BUKILIC and LIFENET (WA) FINANCIAL ADVICE PTY LTD [2008] WASAT 213
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 213 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:4/2008 | 21 MAY 2008 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MS F CHILD (MEMBER) | 17/09/08 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LJUPKA (LUCY) BUKILIC LIFENET (WA) FINANCIAL ADVICE PTY LTD |
Catchwords: | Discrimination Pregnancy Employment Whether employer changed the applicant's conditions of employment after learning she was pregnant Whether any changes were less favourable Whether changes amounted to discrimination Constructive dismissal not made out Tribunal satisfied that probation period changed Detriment Respondent to pay $1000 compensation |
Legislation: | Equal Opportunity Act 1984 (WA), s 10(1)(a), s 10(1)(b), s 11(2)(a), s 11(2)(c), s 11(2)(d), s 97(1)(d) |
Case References: | Dare v Hurley [2005] FMCA 844 Department of Health v Arumugam [1988] VR 319 Freestone v Kozma (1989) EOC 92-249 McDonald v DirectorGeneral of Social Security (1984) 1 FCR 354 Mooney v Commissioner of Police, New South Wales Police Service [2003] NSWADT 189 Rankilor v Jerome Pty Ltd t/as Barkers Discount Furniture Store [2006] FMCA 922 Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 Waters v Public Transport Corporation (1991) EOC 92390 Watkins v Fryer (1995) EOC 92667 |
Orders | 1. The respondent is ordered to pay the applicant the sum of $1000. |
Summary | The applicant claimed that her former employer, through one of its employees, discriminated against her on the ground of her pregnancy. She claimed that the conditions of her employment were changed once the respondent learned that she was pregnant and that she was treated in such a way that she was constructively dismissal.,The respondent denied that there had been any change to the applicant's conditions of employment and said that any apparent changes resulted from correcting typographical errors in its offer of employment. It denied that the applicant's pregnancy had any bearing on her treatment and said she left her employment of her own accord.,The Tribunal found, on the balance of the evidence, that the respondent increased the applicant's probation period after it learned of her pregnancy and on the ground of her pregnancy. It accepted that this constituted a detriment and found that the respondent's conduct in this regard amounted to unlawful discrimination. It ordered the respondent to pay the applicant $1000 compensation for the distress caused by its conduct.,The Tribunal was not satisfied that the respondent discriminated against the applicant by changing her hours of employment. It did not accept that she was constructively dismissed; it found that she left her employment of her own accord. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : BUKILIC and LIFENET (WA) FINANCIAL ADVICE PTY LTD [2008] WASAT 213 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MS F CHILD (MEMBER)
- Applicant
AND
LIFENET (WA) FINANCIAL ADVICE PTY LTD
Respondent
Catchwords:
Discrimination - Pregnancy - Employment - Whether employer changed the applicant's conditions of employment after learning she was pregnant - Whether any changes were less favourable - Whether changes amounted to discrimination - Constructive dismissal not made out - Tribunal satisfied that probation period changed - Detriment - Respondent to pay $1000 compensation
Legislation:
Equal Opportunity Act 1984 (WA), s 10(1)(a), s 10(1)(b), s 11(2)(a), s 11(2)(c), s 11(2)(d), s 97(1)(d)
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr A Macdonald
Respondent : Mr R Bower
Solicitors:
Applicant : Equal Opportunity Commission
Respondent : Corser & Corser
Case(s) referred to in decision(s):
Dare v Hurley [2005] FMCA 844
Department of Health v Arumugam [1988] VR 319
Freestone v Kozma (1989) EOC 92-249
McDonald v DirectorGeneral of Social Security (1984) 1 FCR 354
Mooney v Commissioner of Police, New South Wales Police Service [2003] NSWADT 189
Rankilor v Jerome Pty Ltd t/as Barkers Discount Furniture Store [2006] FMCA 922
Thomson v Orica Australia Pty Ltd (2002) 116 IR 186
Waters v Public Transport Corporation (1991) EOC 92390
Watkins v Fryer (1995) EOC 92667
(Page 3)
Summary of Tribunal's decision
1 The applicant claimed that her former employer, through one of its employees, discriminated against her on the ground of her pregnancy. She claimed that the conditions of her employment were changed once the respondent learned that she was pregnant and that she was treated in such a way that she was constructively dismissal.
2 The respondent denied that there had been any change to the applicant's conditions of employment and said that any apparent changes resulted from correcting typographical errors in its offer of employment. It denied that the applicant's pregnancy had any bearing on her treatment and said she left her employment of her own accord.
3 The Tribunal found, on the balance of the evidence, that the respondent increased the applicant's probation period after it learned of her pregnancy and on the ground of her pregnancy. It accepted that this constituted a detriment and found that the respondent's conduct in this regard amounted to unlawful discrimination. It ordered the respondent to pay the applicant $1000 compensation for the distress caused by its conduct.
4 The Tribunal was not satisfied that the respondent discriminated against the applicant by changing her hours of employment. It did not accept that she was constructively dismissed; it found that she left her employment of her own accord.
Background
5 The applicant, Ms Lucy Bukilic (Ms Bukilic), alleges that LifeNet (WA) Financial Advices Pty Ltd (LifeNet) unlawfully discriminated against her on the ground of her pregnancy within the meaning of s 10(1)(a)(i), s 10(1)(a)(ii) and s 10(1)(b) and contrary to s 11(2)(a), s 11(2)(c) and s 11(2)(d) of the Equal Opportunity Act 1984 (WA) (EO Act).
6 Ms Bukilic says that when the respondent's employee, Ms Peta Williams, learned that she was pregnant, Ms Williams changed the conditions of employment that had been agreed between them. She says Ms Williams' conduct towards her changed and that she was constructively dismissed because she had no option but to leave.
(Page 4)
7 The respondent denies the allegations and says Ms Bukilic resigned of her own accord.
8 The complaint has been referred to the State Administrative Tribunal (Tribunal) by the Commissioner for Equal Opportunity pursuant to s 97(1)(d) of the EO Act.
9 On 21 May 2008, the Tribunal heard oral evidence from Ms Bukilic, Ms Williams and Mr Brendan Lynch, an employee of LifeNet. Ms Bukilic was represented by Mr Allan Macdonald of the Equal Opportunity Commission and the respondent by Mr Ronald Bower of Corser & Corser.
The applicant's claims and submissions
10 Ms Bukilic and her husband moved to Western Australia from Victoria at the start of 2007 looking for work. She was experienced in office and administrative duties including accounts receivable and payable, banking, invoicing and customer service.
11 On 27 March 2007, Ms Bukilic learned she was pregnant. She decided she would keep looking for work and try to save some money before the baby was born. She told her immediate family that she was pregnant but decided not to tell prospective employers until after she was three months pregnant because, according to her Ukrainian background and culture, to do so would be bad luck.
12 In May 2007, a friend offered to pass Ms Bukilic's name and resume to Ms Williams at LifeNet. On 16 May 2007, Ms Bukilic received an email from Ms Williams saying she was looking for someone to help in the office and asking what experience she had. Ms Bukilic replied by email the following day to say she was looking for a fulltime position in accounts, customer service and administration.
13 Ms Williams then telephoned Ms Bukilic and they arranged to meet the following week. At this meeting, Ms Williams offered Ms Bukilic an hourly rate of twenty dollars, reviewable after three months, and asked Ms Bukilic to think about the offer and get back to her the following day.
14 There is some divergence in the evidence as to some of what was said at this first meeting but the parties agree that it went well and Ms Bukilic's claims up to this point are not in dispute in any material way.
(Page 5)
15 Ms Bukilic rang Ms Williams the next day and accepted the position. Ms Williams said she could start the following Monday, 28 May 2007, and her hours would be 8.30 am to 5 pm.
The first letter
16 Ms Bukilic started work on 28 May 2007. Parties agree that Ms Williams invited her into the boardroom where she gave her a letter setting out the conditions of her employment and various forms to complete.
17 Ms Bukilic says she read through the letter and noticed it was dated 29 May 2007; she pointed this out to Ms Williams who told her that was a mistake but not to worry about it.
18 The relevant parts of the letter read:
I would like to confirm your basis for employment:
(i) You will be on probation for the first three months.
(ii) Your hourly rate of pay will be $20.00, however this will be reviewed after three months and successful completion of your core areas of training.
…
(iv) Start 8.30am - 5pm Monday to Friday, with one hour for lunch, which equates to a total of 37.5 hours per [sic]
19 Ms Bukilic says she was used to taking less than a full hour for lunch and working 38 to 40 hours, so she asked if she could take a half-hour lunch break instead. She says Ms Williams agreed and told her to amend the letter, which she did by hand. Ms Williams 'totally refutes' this and says she made the suggestion that Ms Bukilic could work the extra time because she knew she wanted to earn as much money as possible; it was no more than 'an option available to her'. Ms Williams maintains that Ms Bukilic did not actually accept her offer and she denies instructing Ms Bukilic to amend the letter by hand. She says she had not seen the amended version of the letter until the Tribunal proceedings.
20 In any event, at some point Ms Bukilic crossed out the references to 'one hour for lunch' and 'a total of 37.5 hours', so that the letter read:
(iv) Start 8.30am – 5pm Monday to Friday, with 1/2 hour for lunch, which equates to a total of 38 hours per [sic]
(Page 6)
21 The calculation of hours is clearly incorrect: the total should read 40 hours. Ms Bukilic gave evidence that she knew that by working a shorter lunch break and being paid for 38 hours, she was, in effect, working two unpaid hours each week but she was happy to do this and Ms Williams was agreeable to the arrangement.
22 As Ms Bukilic was filling out the forms, Ms Williams (who gave evidence that she noticed at this point that Ms Bukilic appeared to be pregnant) asked if she was pregnant. Ms Bukilic replied that she was and said she was going to tell Ms Williams once she had completed the forms. Ms Williams told her she was shocked and could not believe Ms Bukilic had not told her before. According to Ms Bukilic, her tone became 'tense and annoyed' and she said words to the effect that, as the employer, she deserved to know.
23 Ms Williams describes herself as 'flabbergasted', 'shocked' and 'disappointed' that Ms Bukilic had not told her she was pregnant when they first met but she denies saying she 'deserved to know'. It is common ground that, at this point, Ms Bukilic offered to leave if Ms Williams had a problem with her being pregnant. Her oral evidence was that she said:
… if me [sic] being pregnant [is] a problem, please tell me now. I will just pick up my bag and I'll leave. No hard feelings.
24 It is also common ground that Ms Williams did not accept Ms Bukilic's offer to leave. Ms Bukilic's evidence was that she gave Ms Williams the option, but that Ms Williams declined her offer and 'decided to employ [her]' saying words to the effect that she was employed from Monday 28 May and 'You're employed'. According to Ms Williams, there was 'never any question at all that Lucy was employed … that day and for the future'.
25 According to Ms Bukilic, Ms Williams said she was disappointed and told her to go to her desk and start training for the position; she would think about things and let Ms Bukilic know by the end of the day.
26 Ms Bukilic claims that Ms Williams' manner towards her changed from this point. Ms Williams disputes this and says Ms Bukilic was working very well on her first day and there was no reason not to continue to employ her. By the end of the day Ms Bukilic thought everything was 'fine' and she thought she would continue in the job 'to see how things went'.
(Page 7)
27 Ms Bukilic says that, at the end of the day, Ms Williams again said she was shocked and disappointed Ms Bukilic had not told her she was pregnant but she had spoken to her business partner who said she should 'just deal with it' and so she had decided to employ her. Ms Williams denies making this last comment.
The second letter
28 Ms Bukilic says that, when she arrived at work the following day, 29 May, Ms Williams asked her to return the letter she had given her the previous day so she could correct the date on it. It is not in dispute that Ms Williams tore the first letter up and threw it in the bin.
29 Ms Williams returned some time later with a fresh letter dated 29 May 2007. It is in terms identical to the first, but with the following addition and amendment (underlined).
I would like to confirm your basis for employment:
You have advised today that you are pregnant.
(i) You will be on probation for six months.
(ii) Your hourly rate of pay will be $20.00, however this will be reviewed after three months and successful completion of your core areas of training.
…
(iv) Start 8.30am - 5pm Monday to Friday, with one hour for lunch, which equates to a total of 37.5 hours per [sic].
30 The hours of employment were the same as in the typed version of the first letter and do not include the handwritten changes made by Ms Bukilic.
31 Some time later, Ms Bukilic retrieved the first letter from the bin and took both letters home with her.
32 Throughout her second day, Ms Williams continued to train Ms Bukilic who says she felt 'stressed out and worried'.
33 On Wednesday 30 May, Ms Bukilic's last day at LifeNet, she says she asked Ms Williams if she could change her lunch break back to half an hour as they had agreed but Ms Williams refused, saying, 'No, because you didn't tell me you were pregnant. Remember Lucy?' Ms Williams denies this and says this was the first time she knew that Ms Bukilic wanted to take up her offer of the extra half hour each day.
(Page 8)
34 Ms Williams continued to train Ms Bukilic but, according to Ms Bukilic, things were tense; she felt humiliated and felt Ms Williams did not want her there. She says Ms Williams' tone was 'abrupt' and she criticised her for not knowing basic computer functions; she felt humiliated and belittled and that Ms Williams did not want her there. She says Ms Williams criticised her, saying she did not know how to 'minimalise' the computer screen but she did not know what Ms Williams meant by this. It was evident to the Tribunal that Ms Williams was referring to 'minimising' the screen. The difference is not important other than to underscore difficulties Ms Williams and Ms Bukilic were having communicating by this point and the tension between them.
35 It is agreed that, at some point during the morning, Ms Bukilic became upset and tearful. She says Ms Williams continued to speak to her abruptly and, although it is not clear at exactly what point this happened, she decided 'this is not going to work'.
36 At Ms William's suggestion, Ms Bukilic went for a walk to 'clear her head'. There is some divergence in the evidence about how this suggestion came about but nothing really turns on this.
37 Ms Bukilic says that, when she returned from her walk, she told Ms Williams that she thought she was being discriminated against, and that her probation period and hours had been changed because she was pregnant; she said she did not need the stress, and picked up her bag and the second letter. She says Ms Williams snatched the letter back from her and refused to return it. She says that Mr Lynch, whose office was nearby, witnessed this scene. At this point, Ms Bukilic left the office and did not return.
38 According to Ms Bukilic, she does not usually 'get emotional' and would not normally have become as emotional as she did; she is usually more rational but she felt Ms Williams was treating her like a baby and 'the hormones take over'.
39 Ms Bukilic rang Ms Williams the following day about her pay for the work she had done already. Ms Williams said she was getting advice and would get back to her, but Ms Bukilic did not hear from her that day.
40 That same day, Ms Bukilic received a letter from Ms Williams dated 30 May 2007. The relevant part states:
(Page 9)
- I write to confirm that you have chosen to resign … effective from today @ 10am. When you advised that you were resigning, I suggested that you reconsider your decision and that a desk and workstation still remain available to you and this offer remain [sic] open until close of business on Friday.
41 Ms Bukilic denies that she resigned from her employment. She says she was 'basically pushed out'; she was not willing to continue to work in that environment and she 'had no choice, at the end of the day'.
42 She received another letter from Ms Williams some days later enclosing a cheque for $314 being for 17 hours' work.
43 Ms Bukilic says she felt humiliated 'for quite a few months' by Ms Williams' treatment; she felt miserable and was anxious about her financial situation. In the week after she left, she telephoned 'a couple of' employers whom she had spoken to before contacting LifeNet, but they turned her down when they learned she was pregnant. She contacted an agency and asked to be put on its books but heard nothing from the agency; there was one parttime job available in retail but she had no interest in it; she wanted a position in accounting or administration and would not have considered other types of employment.
44 Ms Bukilic says she was fit and healthy throughout the pregnancy and her baby was born by caesarean on 8 November 2007. She says that, had she continued to work for the respondent, she would have worked until about a fortnight before her baby was born.
Ms Williams' evidence
45 Ms Williams is the practice manager for LifeNet and one of its two directors. She says that, when she interviewed Ms Bukilic for the position, she explained that LifeNet was creating a position for her and that the company had spent considerable time over the past eight months training new staff, which had put pressure on existing staff.
46 Ms Williams agrees that she was shocked to learn Ms Bukilic was pregnant; in her words, she was 'flabbergasted', 'very, very surprised' and 'speechless'. She had explained to Ms Bukilic when they first met, that a position was being created for her and that there had been disruptions to staff over previous months; Ms Bukilic came from a 'referral source' and it was a surprise that they 'would have referred someone who was three months pregnant'.
(Page 10)
47 Ms Williams denies her tone was 'annoyed' and she denies saying words to the effect that, as Ms Bukilic's employer, she deserved to know she was pregnant. She denies that Ms Bukilic's pregnancy had any bearing on her conditions of employment.
The probation period
48 Ms Williams denies that she changed the letter setting out Ms Bukilic's conditions of employment on account of her pregnancy. She says she told Ms Bukilic when they first met that her probation period would be for six months and that her salary would be reviewed after three months. She says she realised, when through Ms Bukilic's file, that there was a typographical error in the letter she had given her which she needed to change.
49 Ms Williams gave evidence that she typed the first letter herself from a standard template into which individual details are inserted. By way of example, Ms Williams cited an individual's wages. There is no evidence to suggest that the probation period is one of the individual details inserted in the letter and Ms Williams' evidence was that all administrative staff at LifeNet are offered a six month probation period.
50 In support of her claim that the original letter was a mistake, and that all administrative employees are given six months' probation, Ms Williams has produced to the Tribunal similar letters given to other employees, all referring to six months' probation. She cannot explain the reference to three months in Ms Bukilic's letter, other than to say it was an inadvertent, typographical error on her part.
51 Ms Bukilic maintains that, regardless of any probation period offered to other employees, the agreement with her was for a period of three months. She maintains there was no error in the first letter, and says she read it aloud at the first meeting at Ms Williams' request and Ms Williams did not correct her. In her evidence, Ms Williams could not recall asking Ms Bukilic to read the letter aloud, although she did not deny doing so.
52 Ms Williams says she thought it important to include in the second letter that statement 'You have advised that you are pregnant' because she is very thorough in what she does and it was important to have a date for future records and if anyone wanted to question them. She denies that it signified any material change in her attitude towards Ms Bukilic.
(Page 11)
Hours of employment
53 Ms Williams says that she took a comment by Ms Bukilic that she and her husband needed to work to mean that she wanted to maximise her income. She therefore said Ms Bukilic could take a halfhour lunchbreak and LifeNet would pay her for the extra halfhour each day.
54 The evidence about Ms Bukilic's hours, including what time she could leave each day, is confusing and diverges at points but for the most part nothing turns on this.
55 Ms Williams maintains that Ms Bukilic 'intimated' to her that her suggestion she could work the extra time was 'positive' but that at no stage did she say she wanted to take up the offer. She says she has no idea how the handwritten notations came to be made by Ms Bukilic on the first letter and denies having seen the annotated version until these proceedings. She says that, having made the offer of the additional hours, she had no reason to change her mind and take back the offer, denying Ms Bukilic the additional hours and pay. She maintains that the handwritten notes do not reflect any actual agreement and there was no actual change in the hours set out in the first letter.
Treatment of Ms Bukilic generally
56 According to Ms Bukilic, she was experienced in the use of computers but Ms Williams belittled her. Ms Williams denies that she 'picked on' Ms Bukilic or treated her in any way to make her feel incompetent or not valued. However, she says, contrary to her alleged experience, Ms Bukilic did not know some basic computer skills. Ms Williams agrees she expressed her surprise at this, given Ms Bukilic's previous work experience, and says she questioned her skills, but she denies belittling Ms Bukilic and says she only said they would need to work harder.
57 Ms Williams recalls that Ms Bukilic said to her, on her last day, that she had 'changed' but she denies that she had changed towards her and says she did not understand at the time what Ms Bukilic meant by that comment.
Did Ms Bukilic resign or was she constructively dismissed?
58 Ms Williams concedes she was shocked, upset and hurt at being accused by Ms Bukilic of discrimination on her last day at work. She maintains that Ms Bukilic resigned and that, even after that, her position remained open to her until the end of that week. She told Ms Bukilic several times that she was still employed, the first time in the meeting
(Page 12)
- room and repeatedly on her last morning when she said she was leaving because she had been discriminated against and was not wanted.
59 Ms Williams denies saying to Ms Bukilic on her first day that she would make a decision about her employment at the end of the day. She denies saying at the end of that day that she had spoken to her husband who told her to 'just deal with it'. She maintains there was never a question in her mind that Ms Bukilic was employed by LifeNet and would continue to be.
60 Ms Williams says she told Ms Bukilic she was still employed and that her job remained open. She describes Ms Bukilic as 'extremely uptight' and 'very, very emotional' but a 'nice person' and not someone she would 'discard'.
61 According to Ms Williams, when Ms Bukilic returned from the walk on 30 May 2007, she said she was resigning because of the discrimination. In support of her claims, Ms Williams has produced notes which she says she started to make on her computer at that point and which she added to as time went on. A copy of Ms William's notes is before the Tribunal. The final page is her response to a document headed Applicant's Statements of Allegations and Circumstances sent to her for comment by the Commissioner for Equal Opportunity.
62 The Tribunal places little weight on Ms Williams' notes. It is clear that not all were made contemporaneously and they are largely selfserving. They were not produced in these proceedings until just before the hearing and, as the document was produced on a computer, it is not possible to know when they were compiled. In all the circumstances, we do not consider it safe to place weight on them.
Mr Lynch's evidence
63 Mr Lynch gave evidence that, on Ms Bukilic's last day at LifeNet, he was working in his office and overheard Ms Williams teaching Ms Bukilic how to use the computer. Around 9.30 am he noticed Ms Bukilic had left the office, which he thought strange unless she had gone to collect the mail. Ms Williams told him Ms Bukilic had gone for a walk because she was upset, by which he understood her to mean it was something to do with her pregnancy.
64 Mr Lynch says that, when Ms Bukilic did not return to the office, he and Ms Williams became concerned and Ms Williams telephoned Ms Bukilic's husband. Ms Williams came back sounding relived and reported that
(Page 13)
- Ms Bukilic's husband had said she was on her way back to the office. When Ms Bukilic returned, Mr Lynch heard her say to Ms Williams that she was not happy working there and felt she had been discriminated against.
65 Mr Lynch says that, just before she left, Ms Bukilic came into his office and said she was resigning; she seemed 'flustered' and kissed him on the cheek. He describes it as 'sort of a goodbye kiss', and says that, as she left, Ms Bukilic said she would sue for discrimination.
66 Ms Bukilic denies kissing Mr Lynch.
67 Ms Williams supports Mr Lynch's account and describes Ms Bukilic's conduct in kissing him as 'absurd' in the circumstances. Her notes, which she says were made that day, do not record this incident, and neither do brief notes made by Mr Lynch at the time. Ms Williams says she did not record it in her notes because she thought Mr Lynch would do so.
68 Although it is not in either of their written statements and is not in Ms Williams' typed notes made that day, Mr Lynch and Ms Williams insist that Ms Bukilic kissed Mr Lynch as she left. We have no reason to doubt Mr Lynch's evidence and, on balance, find that it happened. It is possible that Ms Bukilic feels embarrassed about it now but, even if she has not been frank about this matter, we do not think anything really turns on it.
Relevant legislation
69 The relevant parts of the EO Act provide:
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; …
- (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;
…
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
70 For her claim to succeed, Ms Bukilic must establish to the Tribunal's satisfaction that unlawful discrimination on the ground of pregnancy occurred, in that:
(i) she was treated less favourably than the respondent treated, or would have treated, another person in the same or not materially different circumstances, a person who was not pregnant;
(ii) the less favourable treatment was on the ground of her pregnancy or a characteristic appertaining generally to pregnant women; and
(iii) the less favourable treatment was not reasonable in the circumstances;
- and that the respondent discriminated against her:
(i) in the terms or conditions she was offered;
(ii) by dismissing her; or
(iii) by subjecting her to any other detriment.
(Page 15)
72 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: Department of Health v Arumugam [1988] VR 319.
73 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 v Public Transport Corporation (1991) EOC 92390.
74 'Less favourable treatment' involves another person or persons by comparison with whom Ms Bukilic's treatment was less favourable, and that person or those persons must be in 'circumstances' which are 'the same' or 'not materially different'. There will not always be an actual person in comparison with whom an applicant is less favourably treated. It may be that the comparator is hypothetical: see, for example, Dare v Hurley [2005] FMCA 844; Mooney v Commissioner of Police, New South Wales Police Service[2003] NSWADT 189 at [93] - [81].
Were Ms Bukilic's conditions of employment changed?
75 By Ms Williams' own evidence, she was 'flabbergasted', 'shocked' and 'disappointed' that Ms Bukilic did not volunteer the information that she was pregnant before starting work at LifeNet.
76 We accept Ms Bukilic's evidence that Ms Williams' conduct towards her changed after her first morning at work. We do not accept that Ms Williams' conduct was quite unaltered even though she was 'flabbergasted' and 'shocked'. She was clearly displeased, and made her displeasure known including by 'tearing up' the first letter.
77 We are not satisfied, on balance, that the reference to three months' probation in the first letter was an error on Ms Williams' part. Her evidence was that the letter is based on a template into which details of an individual's conditions are inserted. Ms Williams cited wages as an example; her evidence was not that the probation period for an administrative employee might vary with the individual. To the contrary, her evidence was that all administrative employees are on six months probation.
(Page 16)
78 Even if the probation period is typed into individual letters, it is not credible that Ms Williams, who describes herself as 'very thorough', would mistakenly type 'three' instead of 'six'. It is possible that 'three' was an inadvertent error but, even so, we do not accept that Ms Williams would not have noticed it. However it came about, we are satisfied that she was aware of what she had put in the letter and that it was a term of her agreement with Ms Bukilic.
79 We are satisfied that, once she was 'disappointed' with Ms Bukilic about her pregnancy, Ms Williams amended the first letter. Her motivation in doing so is not quite clear but we are satisfied it was a response to Ms Bukilic's pregnancy and that her probation period was increased by three months on the ground of her pregnancy. We are satisfied that Ms Williams would not have treated another person who was not pregnant in the same way.
80 We accept that a shorter a period of probation is more favourable to an employee. It is somewhat intangible because it goes to security of employment and its value is difficult to quantify but we accept that increasing the period of probation constitutes a detriment to an employee.
81 The evidence about Ms Bukilic's hours is confusing. She maintains that Ms Williams told her to handwrite the agreed changes to her hours on her first day at work. Ms Williams cannot recall this and says she had not seen the annotated version until these proceedings. She says that, having made the offer of the additional hours, she had no reason to change her mind and retract her offer but she maintains that the handwritten notes do not reflect any agreement and there was no change in Ms Bukilic's hours that amounted to a detriment. We accept Ms Williams' evidence on this point. We are not satisfied that, however honestly Ms Bukilic understood her hours to have been changed, her handwritten amendments reflect an agreement or a term of her employment that was changed in any material way.
Was Ms Bukilic constructively dismissed?
82 The respondent maintains that whether Ms Bukilic was constructively dismissed is not a matter that the Tribunal can determine, because it is not so closely related to the concept of unlawful discrimination as to authorise the Tribunal to make such a finding.
83 It is correct to say that the Tribunal cannot make a finding of constructive dismissal in an industrial sense but that does not prevent it from making a finding to that effect. Findings of constructive dismissal in discrimination matters
(Page 17)
- are not uncommon: see, for example, Watkins v Fryer (1995) EOC 92667; Freestone v Kozma (1989) EOC 92-249.
84 Constructive dismissal can arise where an employer alters terms or conditions of employment on a prohibited ground, the employee would have remained in their position were it not for the conduct complained of and the discriminatory conduct or its detrimental effects were the sole, or main, reason for leaving: Thomson v Orica Australia Pty Ltd(2002) 116 IR 186; Watkins (above).
85 Constructive dismissal requires something more than the mere subjective view of an employee who feels wronged; there has to be some objective basis for that feeling.
86 We are not satisfied that Ms Williams' treatment of Ms Bukilic was such that Ms Bukilic had no option but to resign as she claims. On her first morning at work, she offered to resign as soon as Ms Williams learned she was pregnant. By her third day at work, she had decided that things were not going to work. Although things between them were clearly strained, we do not accept that Ms Williams' conduct was such that, by her third day at work, Ms Bukilic had no option but to leave. Ms Williams is a strong personality and her evident displeasure would have been upsetting to Ms Bukilic. By Ms Bukilic's own evidence, she would not normally have become as emotional as she did; she is normally more rational but 'the hormones take over'.
87 We accept Ms Williams' evidence that she made clear to Ms Bukilic that the position was still there for her. We accept that she wanted Ms Bukilic to remain in the position - or at least that she did not want the position to become vacant. The letter she sent Ms Bukilic on 30 May 2007 might have been selfserving to some extent, but we accept that the position remained open to Ms Bukilic until the end of the week and that Ms Williams would have continued to employ her.
88 We are not satisfied, on the evidence before us, that Ms Bukilic was constructively dismissed.
Conclusion
89 We are satisfied that Ms Williams' increased Ms Bukilic's probation period after she learned of her pregnancy and that her conduct in doing so constituted unlawful discrimination within meaning of the EO Act.
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90 We are not satisfied that the respondent's conduct in any other respect constituted unlawful discrimination.
91 We do not accept that Ms Bukilic is entitled to compensation for loss of income after she left her position with the respondent. She is obliged to mitigate her loss but the evidence before us does not establish any real effort on her part; they were half-hearted at best. In any event, we do not accept that the respondent is liable for any loss of income on account of her resignation.
92 It is appropriate, in our view, that the respondent compensate Ms Bukilic for the distress she suffered on account of the increase in the probation period. The benefit attaching to security of employment may be intangible but it is nevertheless real. Others have observed that the appropriate amount of compensation for personal distress is never easy to determine: see, for example, Rankilor v Jerome Pty Ltd t/as Barkers Discount Furniture Store [2006] FMCA 922 at [41]. The amount should reflect the fact that there is no evidence of psychological distress before the Tribunal other than Ms Bukilic's evidence and the distress. We order the respondent to pay to her the sum of $1000.
Orders
93 The respondent is ordered to pay the applicant the sum of $1000.
I certify that this and the preceding [93] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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