Cincotta v Sunnyhaven Limited

[2012] FMCA 110

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CINCOTTA v SUNNYHAVEN LIMITED [2012] FMCA 110

HUMAN RIGHTS – Sex and family responsibilities discrimination.

Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO
Sex Discrimination Act 1984 (Cth), ss.5, 7, 7A, 8, 14
Federal Magistrates Court Act 1999 (Cth), ss.76, 77
Civil Procedures Act 2005, s.100
Federal Magistrates Court Rules 2001 (Cth), r.26.01
Federal Court Rules 2011 (Cth), r.39.06

Briginshaw v Briginshaw [1938] HCA 34 (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
G v H [1994] HCA 48; (1994) 181 CLR 387
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; (1959) ALR 367; (1959) 32 ALJR 395
Thomson v Orica Australia Pty Ltd  [2002] FCA 939; (2002) 116 IR 186
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133
Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121
Gama v Qantas Airways Ltd (No 2) [2006] FMCA 11; (2006) 195 FLR 475
Randell v Consolidated Bearing Company (SA) Pty Ltd [2002] FMCA 44
Maxworthy v Shaw [2010] FMCA 1014
Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931
EME Cardiff(No 1) Pty Ltd v EME (NSW) Pty Ltd & Anor [2008] FMCA 476 APRA v Cougars Tavern [2008] FMCA 369

Applicant: JOANNE CINCOTTA

Respondent: SUNNYHAVEN LIMITED

File Number: SYG 626 of 2011

Judgment of: Nicholls FM

Hearing dates 20, 21 & 22 September 2011

Date of Last Submission: 14 October 2011

Delivered at: Sydney

Delivered on: 8 March 2012

REPRESENTATION

Counsel for the Applicant: Ms L Doust

Solicitors for the Applicant: Santone Lawyers

Counsel for the Respondent: Mr G Boyce

Solicitors for the Respondent: Hancock Alldis & Roskov

ORDERS

1. Within 21 days of these orders, the Management Board of the respondent deliver an apology to Ms Cincotta, in writing, in relation to the discriminatory conduct of the Chief Executive Officer of the respondent, Mr Mendis.

2. The respondent pay the applicant $34,340.65 in damages including interest.

3. The respondent pay the applicant $10,361.00 in general damages including interest.

4. The respondent pay the applicant interest of 10.25 per cent on the judgment amount pursuant to s.77(3) of the Federal Magistrates Act 1999 (Cth) and r.39.06 of the Federal Court Rules 2011 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 626 of 2011

JOANNE CINCOTTA

Applicant

And

SUNNYHAVEN LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. This is an application filed on 4 April 2011 under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”). This follows the termination of the applicant’s complaint by a delegate of the President of the Australian Human Rights Commission (“the Commission”), pursuant to s.46PH(2) of the AHRC Act, on 4 February 2011 as there was no reasonable prospect of the matter being settled by conciliation.

2. The applicant, Ms Joanne Cincotta (referred to also in relevant documents by her unmarried name: Ms Aliferis), who at the relevant times was a social and community services worker, complained to the Commission, by letter dated 19 May 2010, in relation to events occurring during the course of, and subsequent termination of, her employment at Sunnyhaven Limited (“Sunnyhaven”) (“the respondent”).

3. The respondent is an organisation engaged in the social and community services sector. It provided services, including residential care and recreational activities, to people with disabilities. Relevant to the current proceedings, the respondent, amongst other activities, at the relevant time operated a number of group homes in which a small number (four or five) disabled persons were able to live with the assistance of support workers. The respondent employed support workers to provide such assistance, as well as persons in managerial and supervisory capacities in relation to its operations generally, and relevantly, in relation to the operation of these homes.

4. The applicant’s complaint to the Commission alleged discrimination on the ground of sex, including pregnancy. The complaint was terminated in relation to this.

5. In her complaint to the Commission the applicant stated that:

   a)She had been employed by Sunnyhaven for more than five years, for the most part as a direct support worker.

   b)After informing the Chief Executive Office (“CEO”) of Sunnyhaven, Mr Mendis, that she was pregnant and intended to take maternity leave she was systematically discriminated against. This discrimination continued on her return from maternity leave (on the basis of her carer’s responsibilities).

   c)Unlike other employees, and contrary to usual workplace practice, her employment as a program supervisor in 2008, a more senior position, was not made permanent at the successful completion of a year in the position because of her pregnancy and request for maternity leave. She was also not awarded a “bonus” at the completion of the year, as other staff were. She was not informed the position had been advertised externally and that it was not being offered to her. She was “effectively excluded” from reapplying for the position on the basis of her pregnancy and maternity leave. The resultant stress and anxiety necessitated the applicant taking maternity leave early.

   d)Because of this, on returning from maternity leave in 2009 she returned to her previous substantive position, but was made a casual rather than a permanent part-time employee. She claimed this was “purportedly so as to accommodate my carer responsibilities”. However the casual nature of employment did not accommodate these responsibilities. The applicant also claimed that Sunnyhaven failed to meet the agreed “return to work” plan, and to increase her hours to full time as arranged prior to her return.

   e)Her prior position as program supervisor effectively excluded her from the work available for casual employees, as she could not work in areas she had formerly managed.

   f)She was treated differently from other support worker staff, who received regular, and more, shifts. The applicant was not offered regular shifts. Rather, shifts were offered up to an hour before the shift began. Similarly, shifts were cancelled with little or no notice. Despite requests for increased work, the applicant’s hours were reduced.

   g)On 8 May 2010 the applicant’s shifts were terminated and she was informed that work would no longer be made available to her by a staff member who “did not have the authority to make this decision”. The applicant lodged a complaint on that day.

   h)On 11 May 2010 the applicant lodged a written complaint.

   i)On 14 May 2010 the applicant sought to view and take copies of her personnel file and was “treated as an ex-employee”.

   j)On 9 June 2010 the applicant received a letter from the CEO of Sunnyhaven informing her that a “clinical support team for people with disabilities” had been engaged to investigate her complaint. The applicant alleges this did not adhere with Sunnyhaven’s procedures.

Application to the Court

1. The applicant raises the following grounds in her application to this Court, pursuant to the Sex Discrimination Act 1984 (Cth) (“the SDA”):

   “The applicant alleges discrimination by her employer on the grounds of sex, pregnancy and family responsibilities:

   The applicant’s contract of employment to work at a higher grade was not renewed when she became pregnant;

   The applicant did not receive the bonus other employees who worked at the higher grade received;

   The applicant was forced to commence unpaid maternity leave earlier than planned;

   The applicant was forced to resign from her permanent position upon returning from maternity leave;

   The applicant was then only offered work as a casual employee;

   The applicant was not offered the equivalent amount of work she would have received if she had been a permanent employee;

   The applicant’s employment was unlawfully terminated by the employer.”

2. The applicant relied on a number of instances, or issues, that she says reveal, and on the evidence establish, discrimination towards her by the respondent. Those issues are set out below at [8]. However, the following outline provides context and understanding. The applicant said:

   a)She had been employed by the respondent from 2001 to 2003 as a support worker. She then commenced work again with the respondent on a casual basis in 2005. [The respondent said the applicant first commenced in 2002, but this is not material to the issues below.]

   b)In August 2006 she was offered and accepted a position as a permanent employee. Her work was as a direct support worker. [Not in dispute.]

   c)In August 2007 she applied for, and was offered on 22 August, the position of “program supervisor”, which had been advertised internally. This was for a fixed term of 12 months. [Not in dispute.]

   d)Further, that she attended an interview with the CEO of Sunnyhaven (Mr Senaka Mendis) on 16 August 2007 in relation to this appointment. [The respondent denied this. Further, the respondent said that the offer of appointment was on the basis that the applicant had completed a relevant Certificate IV qualification (“Certificate IV”) (“Disability and Welfare” - a TAFE qualification)].

   e)At some time “shortly thereafter” this interview she told Mr Mendis that she had lied in her application and that she did not have the Certificate IV qualification. Mr Mendis indicated this was not a problem. [The timing of this confession is in dispute. The respondent said Ms Cincotta told Mr Mendis on or about 6 August 2008. Further, that on or about 8 August 2008 the applicant was told that this lack of qualification precluded her from continuing in the position of “program supervisor”.]

   f)In May 2008 she discovered she was pregnant. She advised Mr Mendis of this and of her intention to take maternity leave, to return to work initially part-time, and then to her full-time position. Mr Mendis indicated agreement to her returning on a part-time basis after six months and then to a graduated increase to full-time hours. [The respondent disputed the date of advice and said it was early to mid-July 2008. The remainder was also disputed.]

   g)She returned from annual leave at the end of August 2008 and received an email indicating that her position as supervisor had concluded, but that she would continue to act in this position. [The respondent disputed this in a number of material particulars:

   i)It was on or about 6 August 2008 that she informed Mr Mendis that she had lied about her qualification (see (5) above).

   ii)She was told at that time that she was unable to continue in the position of “program supervisor” given her lack of relevant qualifications, and that her contract, due to expire on 21 August 2008, would not be renewed.

   iii)On or about 8 August 2008 she asked to be re-employed as a “disability support” worker. This was agreed to and was to take effect from the time of her return from maternity leave. In the meantime she would be employed as an “acting program supervisor” until she commenced maternity leave.]

   h)The position of supervisor was advertised in October/November 2008. She was denied the opportunity to reapply. Another employee (Mr Glen Atkins) was appointed, and she was told that he was replacing her. She was told to train him for that position.

   i)She questioned Mr Mendis as to why Mr Atkins was filling her position and her contract had not been extended. Mr Mendis indicated this was because she was going on maternity leave, and that she would have to reapply for her position. [In dispute.]

   j)She decided to take maternity leave five weeks earlier than intended. She was forced to sign a memorandum which stated she had reverted to her “original position” – a direct support worker. [The respondent disputed this – see the respondent’s relevant account above at (7).]

   k)She ceased work in November 2008 and commenced unpaid maternity leave. [The respondent did not admit this.]

   l)She telephoned Mr Mendis (in context, it appears in October 2009) to ask to return to work for 10 to 15 hours per week and to increase this to full time hours when permanent child care became available. [The respondent disputed this. The respondent’s account was that:

   i)In early September 2009 she advised she could only work limited hours, because it would be difficult to work long hours.

   ii)She needed time to complete her Certificate IV.

   iii)She wanted to reduce her hours to 8 to 10 per week, and take shifts of approximately four to five hours over weekends. She did not want to work Monday to Friday.

   iv)The applicant was told in light of this that the only suitable option was to work as a casual in one program (“Out and About”). This was not directly government funded and work was only available if there were excess funds left over from other programs.]

   m)She requested that she be given the same regular shifts so she could arrange child care. She was told she would receive the shifts she wanted, but would need to resign from her “permanent” employment and revert to being a casual employee. As requested, she submitted a letter to that effect. [The respondent denied this and pressed further that the applicant submitted her resignation from her permanent position as a direct support worker on or about 22 September 2009 and that she expressed a willingness to become a casual employee in the “Out and About” program.]

   n)She worked irregular on-call shifts from October 2009 to May 2010. This made it difficult to arrange child care. She was told she could not work in group homes, and was limited to the “Out and About” program. Despite requests for more work she was never offered additional shifts. [The respondent denied this and said the applicant accepted the offer to work in this program and to be offered shifts as they became available.]

   o)In May 2010 she had a dispute with the coordinators of the “Out and About” program. Just before starting her shift she was contacted and told the hours for that occasion were to be reduced. She took issue with this as she was concerned with the client’s welfare. [The respondent admitted the dispute, but disputed the remainder.]

   p)After this incident she was told she would not be receiving any more shifts. None were offered. [The respondent denied this, and said that they attempted to resolve the conflict. No further shifts were offered on the basis of the unresolved conflict.]

   q)The applicant did not work from May 2010 to 17 August 2010. [It was not in dispute that she has not worked for the respondent since May 2010.]

3. This background gives rise to the following issues:

   a)The applicant alleged she was denied the payment of a bonus at the conclusion of the financial year 2007/08 (“the bonus”).

   b)Her contract of employment as a program supervisor was not renewed after August 2007 (“the non-renewal of contract”).

   c)There were ongoing consequences for her arising from the claimed refusal to appoint her to the position permanently (“the refusal to permanently appoint”).

   d)The applicant claimed the respondent denied her request for return to work in September 2009 on a particular basis. She was advised the only option was casual employment (“casual employment”).

   e)The applicant alleged that the respondent’s behaviour at that time towards her was such as to treat her employment as at an end (“constructive dismissal”).

Relevant Law

1. The applicant relied on ss.5, 7, 7A and 14 of the SDA.

2. At the relevant time, section 5 of the SDA provided:

   “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, by reason 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.

   (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

   (3) This section has effect subject to sections 7B and 7D.”

3. Section 7 of the SDA provided:

   “Discrimination on the ground of pregnancy or potential pregnancy

   (1) For the purposes of this Act, a person (the discrimination) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if, because of:

   (a) the aggrieved woman’s pregnancy or potential pregnancy; or

   (b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or

   (c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant;

   the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.

   (2) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are pregnant or potentially pregnant.

   (3) This section has effect subject to sections 7B and 7D.”

4. Section 7A of the SDA provided:

   “Discrimination on the ground of family responsibilities

   For the purposes of this Act, an employer discriminates against an employee on the ground of the employee’s family responsibilities if:

   (a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and

   (b) the less favourable treatment is by reason of:

   (i) the family responsibilities of the employee; or

   (ii) a characteristic that appertains generally to persons with family responsibilities; or

   (iii) a characteristic that is generally imputed to persons with family responsibilities.”

5. Section 14 of the SDA provided:

   “Discrimination in employment or in superannuation

   (1) It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

   (a) in the arrangements made for the purpose of determining who should be offered employment;

   (b) in determining who should be offered employment; or

   (c) in the terms or conditions on which employment is offered.

   (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

   (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.

   (3) Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.

   (4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex or marital status of the member or that other person.

   (5) Subsection (4) does not apply if section 41B applies to that member in respect of that fund.

   (6) In this section:

   ‘member’, in relation to a superannuation fund, includes a person who has been a member of the fund at any time.”

Before the Court

1. At the hearing the applicant was represented by Ms L Doust of counsel. The respondent was represented by Mr G Boyce of counsel.

2. The applicant filed, and relied upon, the following relevant documents and submissions:

   a)Application, filed on 4 April 2011.

   b)Points of Claim, filed on 30 May 2011.

   c)Outline of Submissions, filed on 12 September 2011.

   d)Reply Submissions, filed on 14 October 2011.

3. The respondent filed, and relied on, the following documents and submissions:

   a)Response, filed on 18 April 2011.

   b)Points of Defence, filed on 4 July 2011.

   c)Outline of Submissions, filed on 20 September 2011.

   d)Further Submissions, filed on 7 October 2011.

Evidence

1. The evidence before the Court, relevantly, at the first instance was given by affidavit. For the applicant, the following affidavits were filed:

   a)Joanne Cincotta – the applicant – sworn 19 July 2011, to which were attached twenty four annexures.

   b)Joanne Cincotta, sworn 7 August 2011, to which were attached four annexures.

   c)Robert Cincotta – the applicant’s ex-husband – sworn 26 June 2011.

   d)Glen Atkins – previously employed by the respondent as a Program Supervisor from 17 November 2008 until 23 July 2010 – sworn 18 July 2011, to which were attached three annexures.

2. In the respondent’s case, the following affidavits were filed:

   a)Senaka Mendis – CEO of Sunnyhaven and involved in the management of complaints made by, and against, Ms Cincotta and her return to work following maternity leave – sworn 29 August 2011, to which was attached nine annexures.

   b)Senaka Mendis, sworn 19 September 2011, to which was attached an annexure.

   c)Michelle O’Leary – employed by the respondent as a direct support worker who assisted in managing the “Out and About” program for which Ms Cincotta worked as a direct support worker – sworn 26 August 2011, to which was attached two annexures.

   d)Vani Mudaliar – employed by the respondent as an Accountant and present at the meeting between Mr Mendis and Ms Cincotta in September 2009 – sworn 29 August 2011.

   e)Barry John Edwards – employed by the respondent as Program Supervisor for Residential Services from April 2009 when Ms Cincotta was employed as a direct support worker in the “Out and About” program – sworn 29 August 2011.

3. All individuals on affidavit gave evidence. In addition, Mr Mark Hemsley was subpoenaed by the applicant and gave evidence before the Court on 20 September 2011. The specific evidence given by each witness is detailed below.

Ms Joanne Cincotta

1. Ms Cincotta gave substantial evidence at the hearing, in particular relating to her employment at Sunnyhaven, her commencement of work as a casual employee and her constructive dismissal. [For more detailed information on the evidence of Ms Cincotta, see below.]

Mr Robert Cincotta

1. Before the Court, Mr Cincotta gave limited evidence in support of what Ms Cincotta said was discussed with Mr Mendis regarding her lack of a Certificate IV qualification.

Mr Glen Atkins

1. Mr Atkins gave evidence as to alleged negative comments made by Mr Mendis shortly prior to Ms Cincotta’s return from maternity leave.

Mr Senaka Mendis

1. Mr Mendis, as the CEO of the respondent, gave substantial evidence before the Court, specifically relating to complaints made by, and against, Ms Cincotta, Ms Cincotta’s employment as a casual support worker, her “lie” regarding a Certificate IV qualification and the effective termination of her employment. Mr Mendis’ evidence, and the weight to be afforded to it, is dealt with in detail further below.

Ms Michelle O’Leary

1. Ms O’Leary’s evidence related to an incident, involving Ms Cincotta, at a group home in May 2010 as part of the “Out and About” program. Ms O’Leary alleged that Ms Cincotta had become distressed and left multiple harassing telephone messages on her mobile phone.

Ms Vani Mudaliar

1. Ms Mudaliar gave evidence as to a conversation, at which she had been present, between Mr Mendis and Ms Cincotta in September 2009 regarding Ms Cincotta’s return to work following maternity leave.

Mr Barry John Edwards

1. Mr Edwards gave evidence as to the payment of a bonus to him by the respondent in 2008 when he was employed as a program supervisor.

Mr Hemsley

1. Before the Court, Mr Hemsley gave evidence as to Ms Cincotta’s conversation with him regarding her interview for the position of program supervisor, including her lack of a Certificate IV qualification.

The Competing Evidence of Ms Cincotta and Mr Mendis

1. During final oral submissions before the Court the applicant made a strong attack on the credibility of the evidence given by Mr Mendis.

2. It was clear at that time that the resolution of the issues identified above (at [8])would turn in great part, and to a significant extent, on the Court’s finding between the competing and conflicting evidence given about key points by both Ms Cincotta and Mr Mendis.

The Applicant’s Attack on Mr Mendis’ Evidence

1. The applicant’s attack, however, was not just that Mr Mendis’ evidence should not be preferred to that of the applicant at key points, but that it was open to the Court to find that he lied under oath, and that the Court should so find. That is, that the state of Mr Mendis’ evidence cannot be explained by saying he was mistaken in his recollection or understanding, or that there had been a mere denial, but that he consciously and purposely lied to the Court. In all, he constructed a key event (the conversation with the applicant in August 2008) and a number of different elements, and placed it at a time which was now convenient for him, and the respondent’s, purposes in resisting the applicant’s claims.

2. In those circumstances, it was said that the evidence that Mr Mendis gave was unreliable. The applicant’s account of claimed key events would therefore remain unchallenged, at least by Mr Mendis’ evidence, even though it was said by the respondent to be “clear and firm”. This was said to be particularly so in the presence of corroborating evidence to support the applicant’s claims.

3. Although not exhaustive, the elements that would lead the Court to make such a finding about the credibility of Mr Mendis’ evidence were said by the applicant to be:

   a)His unwillingness to concede, except where directly confronted with documentary evidence, that his recollection of events was anything less than “perfect”. He expressed no room in his account of relevant events for any imperfection of memory, and professed no need to create, let alone rely on, diary notes, minutes of meetings, memoranda and the like.

   b)He was evasive about the extent of his responsibilities and obligations in the organisation of which he was the CEO, in particular as this applied to the employment selection of the applicant and knowledge of her work. This made his stated lack of involvement implausible.

   c)The absence of corroborative evidence to support key claims, for example the key events around August 2007, where Mr Mendis was said to have been unable to give a reliable account of his activities.

   d)The inconsistency between his evidence that his skills as a CEO were “perfect” and his evidence that he had had a conversation with the applicant in August 2008 (in relation to the non-renewal of her contract and the consequences), an important conversation, and made no record of it, nor make a report to his Board of Directors.

   e)That what emerged from the evidence is that Mr Mendis’ approach to matters of this type was that he was a “law unto himself” and had the capacity to “bend the rules” as required. (See below on the significance of the Certificate IV.)

   f)The astonishing, and striking, similarity between his account of the conversation with the applicant in late September 2009 and that Ms Vani Mudaliar (see further below).

The Respondent’s Submissions about Mr Mendis’ Credibility

1. Given the gravity of the attack on Mr Mendis in the context of his professional life, I felt it important to offer the respondent the opportunity to make further written submissions after some reflection, and the opportunity to obtain further instructions. This was taken up and written submissions, on this and other issues, were made by both parties.

2. The respondent put three reasons as to why the Court should not make any finding that Mr Mendis intentionally manufactured his evidence and lied under oath:

   a)First, that it is unnecessary in these proceedings to make any such finding because the applicant’s claims under the SDA are made against the respondent and not against Mr Mendis personally.

   b)In these circumstances, and where Mr Mendis has denied the propositions put to him by the applicant that he manufactured his evidence, it is unnecessary to resolve this particular dispute in deciding for or against the applicant.

   c)If in the event the Court were to prefer the evidence of the applicant over that of Mr Mendis, any finding of him having manufactured or falsified his evidence does not assist the applicant’s case.

3. I agree with the applicant that it is irrelevant that the claim under the Act is directed to the respondent and not Mr Mendis personally.

4. The evidence before the Court is that, whether he knew of certain details relating to the applicant’s circumstances or was personally involved in certain recruitment action affecting her or not, for relevant and current purposes he was the “directing mind” of the respondent. He had sufficient involvement in relevant events, one way or another, and even including the degree of involvement which is in dispute between the parties, about the conduct which is the subject of complaint by the applicant.

5. Whatever reasons emerge for the conduct as claimed by the applicant, and at least not in dispute between the parties, are the reasons of Mr Mendis and the respondent. There is no evidence before the Court to even suggest at that level there was some divergence between the respondent and Mr Mendis in relation to the applicant.

6. Further, I also agree with the applicant that any finding that Mr Mendis was untruthful in his evidence (in the sense and context put by the applicant – see further below) would indeed assist the applicant’s case. If for no other reason than that the applicant is correct to say that, if it is found that he gave untruthful evidence (as opposed to evidence of lesser preference or weight), then this has a direct bearing on, and forms some basis for fact finding about, his conduct in relation to the sequence of relevant events as put forward by the applicant. That is, that he was consistently motivated by the same unlawful reasons throughout.

7. However, I do not comprehend the applicant to be saying that the Court should make a finding about Mr Mendis’ credibility in general, and then apply it to each critical instance in each of the two divergent accounts as to relevant events. But rather to have regard to, and consider, the evidence in relation to each of the critical issues and to make findings in relation to those issues taking into account the usual range of factors, including plausibility, consistency (both internally and with other facts) and corroboration (in light of the weight to be accorded to such corroboration in relation to both oral and/or affidavit evidence and documentary evidence).

8. Through and as a result of that process, the applicant contends that the Court would be in a position to make the finding of lack of credibility urged, and for the purposes referred to above.

9. I agree that the approach should be one of considering each of the claimed events or issue and drawing relevant findings from each. The accretion of such findings then forms the basis of the Court’s answer to the applicant’s charge as to Mr Mendis’ credibility.

10. The difficulty for the applicant is that, as set out below, the totality of the evidence does not support such a finding. While there are aspects of both the respondent’s and applicant’s evidence in general that are problematic, the totality of the respondent’s evidence (not just that of Mr Mendis) in comparison with the totality of the applicant’s evidence is not such as to enable such a serious finding to be made, notwithstanding that a large part of Mr Mendis’ evidence is not to be preferred (see further below).

11. In saying this, and with reference to the respondent’s introduction to the second reason for not making the finding urged by the applicant, I am clearly mindful of the respondent’s submissions as to the standard of evidence required in civil proceedings and the variable quality of this standard as it derives from the seriousness, gravity and the unlikely circumstances of the allegations made (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 per Dixon J at 361- 2, see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 per Mason CJ, Brennan, Deane and Gaudron JJ at [2]).

12. I do not comprehend there to be any dispute between the parties as to this. The applicant agreed that there is a “need to proceed with caution” in making such a serious finding against him (G v H [1994] HCA 48; (1994) 181 CLR 387 at [399] – [400]). Nonetheless, the applicant asserted that, bearing the above in mind and with proper consideration of relevant matters in their appropriate context, such a finding can, and should, be made by the Court.

13. With regard to the position and within the ambit of the issues identified above (at [8]), the respondent put forward three central events that would, in the respondent’s view, provide the answer to the allegations made:

    a)Event 1 – the interview with Ms Cincotta on 16 August 2007 (Cincotta (19 July 2011) at [18]; Mendis (29 July 2011) at [15]);

    b)Event 2 – the meeting between Mr Mendis and Ms Cincotta on 6 August 2008 regarding her falsified qualifications (Cincotta (19 July 2011) at [23]; Mendis (29 August 2011) at [18(d)]); and

    c)Event 3 – the meeting between Mr Mendis, Ms Mudaliar and Ms Cincotta in late September 2009 concerning her return to work (Cincotta (19 July 2011) at [60] - [61]; Cincotta (7 September 2011) at [27] - [28]; Mendis (29 August 2011) at [37]; Mudaliar (29 August 2011) at [3] - [5]).

14. These will be considered below where appropriate in dealing with the issues arising from the application before the Court, including consideration of whether the evidence supports such a finding.

15. A further reason advanced by the respondent for rejecting the specific serious charge put by the applicant against Mr Mendis is that, in any event, his evidence should be preferred. That will also be dealt with below.

Mr Mendis’ Credibility

Mr Mendis and the English Language

1. First, however, it is important to address a submission made by the respondent as to the assessment of Mr Mendis’ evidence, that is that the Court should consider that English is Mr Mendis’ “third” language (the first two being Sinhalese and Russian).

2. The submission is that, in these circumstances, care should be taken in whatever inferences are to be drawn from comments made by Mr Mendis under cross-examination (that is, his often repeated assertion as to his “perfect” skills) and some of his written material which came before the Court in an evidentiary context (his email to the applicant of 8 August 2008 – see [18K] and annexure “A” to his affidavit of 29 August 2011).

3. The detail of these matters will be dealt with below. In the meantime, it is important to note that what is relevant in understanding Mr Mendis’ evidence in this regard is not whether English is Mr Mendis’ third, first or tenth language, but rather his proficiency and competence in English.

4. I agree with the applicant that there was nothing in Mr Mendis’ evidence to even suggest he had difficulties with comprehension and expression in the English language. Certainly not to an extent to explain any difficulties with his evidence in this light, or to illuminate his evidence in a way different to what was plainly said.

5. It is Mr Mendis’ own evidence that he commenced employment with the respondent in 2001 (cross-examination), and became its CEO in March 2006 ([3] of Mr Mendis’ affidavit of 29 August 2011). The respondent is a charitable organisation with 78 employees ([5] of the affidavit of 29 August 2011), with a diversity of operations within the disability support services sector ([6] of affidavit of 29 August 2011), and funded by the NSW Government. From this the inference can be drawn that, at least since 2006, Mr Mendis has had a highly responsible managerial position in an English speaking country. Further, he has at least been working in this environment since 2001.

6. It was also Mr Mendis’ evidence before the Court that while he obtained qualifications – civil engineering – in Russian to add to his qualification of a Doctor of Philosophy in Technical Services (structural engineering), he had been working in the disability support sector in New Zealand from 1996 until he came to Australia, and then commenced work with the respondent. In short, Mr Mendis had been living and working in an English speaking country for at least 10 to 11 years up to the relevant events of 2007, and for 14 to 15 years before his evidence to the Court.

7. Further, he is a highly educated person whose qualifications, although gained in another language, reveal his intellect and capacity generally, and as it relates to his capacity in English in particular. It should be noted also that there was no evidence before the Court that Russian was his “native” or original language. Yet as an indicator of his capacity he was able to obtain tertiary qualifications at a Russian institution.

8. When this is added to his proficiency in answering questions before the Court, and his seeming comprehension of those questions, I cannot accept the respondent’s submissions that, in understanding Mr Mendis’ evidence, allowance should be made for any linguistic deficiency in English.

9. In all therefore, the following three key events identified by the respondent (see [34] above) provide the guidance and direction to the issues raised by the applicant before the Court (see [8] above).

Event One

1. The respondent argues that there is a divergence of evidence between the parties as to who interviewed the applicant for the position of program supervisor on 16 August 2007.

2. The relevant circumstances are that in August 2007 the position of program supervisor was advertised. At the time the applicant was working for the respondent as an acting supervisor. She had been working as a direct support worker.

3. It is not in dispute that the applicant applied for this position. The divergence between the parties however is that the applicant says she was interviewed for this position by Mr Mendis and that Mr Bryan Eagle, a Board Member, was also present.

4. Mr Mendis’ evidence is that he denies interviewing Ms Cincotta on that day and that Mr Eagle was not present at any interview with him. Further, that earlier he had arranged for Mr Ian Mariner to conduct the relevant interviews of the applicant and others.

Event Two

1. This relates to the applicant’s disclosure to Mr Mendis that she had made a false claim in her application for the position of program supervisor in August 2007, being that she did not possess a Certificate IV qualification.

2. The dispute between the parties is as to the timing of the applicant’s confession, or disclosure, to Mr Mendis that she did not have this qualification.

3. The applicant says this conversation took place in late August 2007, soon after she was offered and accepted the position of program supervisor. Mr Mendis says this conversation occurred a year later on the evening of 6 August 2008.

Event Three

1. This concerns the conversation which both parties agreed took place in late September 2009, regarding the applicant’s return to work after her maternity leave. It is a convenient vehicle through which to assess the issue of credibility of both Mr Mendis and Ms Cincotta as it epitomises many of the elements in dispute between the parties in the proceedings.

1. The dispute in relation to this event is not directed to whether the event took place, nor to its timing, but rather to the content of the conversation in important respects.

2. On the one hand, the applicant’s account is that she proposed a desired number of hours of work for her return from maternity leave (10 to 15 hours per week), and that she then wished to increase to full time when child care arrangements were effected.

3. Ms Cincotta says that Mr Mendis refused 15 hours per week and advised her to become a casual employee, and on that basis he would enter into an “informal agreement” to give her the hours she could work. However to achieve this she would need to resign from her permanent position (that is, her employment on that basis with the respondent). She relied on this and resigned, an action which had adverse consequences for her.

4. On the other hand, the evidence of Mr Mendis and Ms Mudaliar (who was at the meeting at Mr Mendis’ direction), was that Mr Mendis sought to develop a plan for Ms Cincotta’s return to work. Ms Cincotta said she could not work more than 10 to 12 hours per week, no more than 5 hours per shift, and with a preference for weekends because of the need to care for her child in circumstances where she had separated from her husband.

5. In seeking to accommodate this, Mr Mendis said that the only “support” shifts available were at a particular group home, and that while the usual shifts were 7 to 8 hours he could see if they could be reduced to 6 hours.

6. On his and Ms Mudaliar’s version of the conversation it was Ms Cincotta who said she could not commit to those shifts on a permanent basis, and that she outlined her difficulties.

7. In view of this Mr Mendis says it was Ms Cincotta who sought work in the “Out and About” program, given this involved shorter shift hours on weekends. [Providing assistance to clients in and outside the group homes – e.g. shopping trips.]

8. It was at this point that Mr Mendis says he noted that this program did not have recurrent funding and only limited hours were available. Given the lack of security as to funding, the hours were offered to casual employees. It was at this point that the applicant suggested that she become a “casual” employee. This was agreed to.

9. Amongst other things, the import of the conflict between the two differing accounts is that if the applicant’s version is accepted then her argument that she was manipulated into a situation in which she gave up the comparative security of a permanent position to become a casual employee, and then denied work, which ultimately led to the constructive dismissal of her appointment, gains strength. This would also assist in the revelation of Mr Mendis’ attitude and discriminatory conduct towards her. Mr Mendis’ account is simply that there was no such “design” on his part, and that the move to casual employment was, at least, the applicant’s preference.

10. For immediate purposes, however, the applicant says that the character of the evidence from Mr Mendis and Ms Mudaliar, its “striking” consistency, in the circumstances, is such as to say that there was some collusion in its preparation which is not satisfactorily explained and, therefore, supports the applicant’s position that Mr Mendis is yet again prepared to lie to the Court to achieve the respondent’s purposes.

The Applicant’s Credibility

1. What must not be forgotten in the applicant’s strong and comprehensive attack on Mr Mendis’ integrity (as distinct from just opposing his evidence) is that the only admitted “wrongdoing” in this entire matter is hers. Putting to one side for the moment when her disclosure of it was said to have occurred, the applicant has admitted that she lied to her employer in claiming a qualification that she did not have. While Ms Cincotta may seek to present this as a “false claim”, rather than a lie, she did not appear to extend the same leeway to Mr Mendis.

2. Nor, on her own evidence, did Ms Cincotta make this claim on only one occasion (that is on the occasion of the application for program supervisor in 2007). She claimed in evidence that she felt nervous on this occasion (that is, in August 2007) “because I knew that I had previously lied in the letter of October 2006…” ([16] of her affidavit of 20 July 2011 and see annexure “D” for her letter of 30 October 2006).

3. In spite of her claimed nervousness, the applicant repeated this “false claim” some ten months later in her application of August 2007 (see annexure “G” to her affidavit of 20 July 2011).

4. Ms Cincotta’s evidence (with reference also to her affidavit of 19 July 2011) was that at the interview on 16 August 2007 (which Mr Mendis denies) she was not asked any questions about her qualifications (at [18]). Her evidence was that after the interview she felt sick that she had lied about her qualification. It could not be said, therefore, to have arisen as a result of anything that occurred at the interview itself (at [22]).

5. At this interview, on Ms Cincotta’s account, Mr Mendis did not appear to be taking the interview seriously and spent at least half the time on the telephone. What remains unexplained is why Ms Cincotta had this attack of conscience after the claimed interview of August 2007, given her account of how that interview was conducted, and yet had no such concerns following the same “lie” in October 2006. On both occasions the “false claims” were similar in nature, in that they were written in an application for employment positions, and did not involve any oral misrepresentation by the applicant.

6. Before the Court the applicant sought to distinguish the situation of making a “false claim” to an employer with that of lying before a Court. It can be allowed that there is a qualitative difference. Plainly lying under oath, where a person has promised to tell the truth, is of greater severity since the lying occurs in circumstances where there is an expectation and an obligation that a person will tell the truth.

7. However, in the current case the applicant’s attack on Mr Mendis is an attack on his integrity and his character, not just an allegation that he was mistaken or that his evidence was not to be preferred. Having opened that door, therefore, it calls for an equal consideration of the applicant’s integrity. In this regard, she has admitted that she lied to her employer on two occasions over a period of 10 months about a matter going to her qualifications. Her evidence was that until the disclosure in August 2007 she never discussed with or told anyone that she did not possess the qualification.

8. The lack of explanation, both express or even as can be said to reasonably arise from the circumstances presented by her, as to what suddenly sparked her nervousness about this matter in August 2007 raises a question about the credibility of her account, particularly in light of what follows.

9. Further, the applicant agreed before the Court that she expanded on the lie (a Certificate in “Mental Health” and also in “Disabilities”) on the second occasion. This is in spite of her affidavit evidence that she felt nervous at the time of deciding to apply for the position, that is before completing the application on that second occasion.

10. There is an unexplained inconsistency in her evidence that she felt nervous at this time yet repeated and expanded on the lie. Her only explanation before the Court was that she had forgotten what she had written in 2006. This in circumstances where she is now able to produce that first letter to the Court (Annexure “D” to her affidavit of 19 July 2011).

11. In the absence of any explanation by the applicant as to the catalyst for her confession about the “false claim”, which even on her own evidence continued for about 10 months, the explanation arising from Mr Mendis’ evidence in this circumstance stands alone.

12. On Mr Mendis’ evidence the catalyst for the applicant’s disclosure on 6 August 2008 was (as the applicant told him) that out of jealousy a friend had threatened to tell him that she did not have the Certificate IV qualification ([18](d) of his affidavit of 29 August 2011). This is consistent with the applicant’s evidence before the Court that a friend (“Lisa”) assisted her in preparing the application in 2007, but not the one in 2006. Further, that she had told “Lisa” that she had lied in the first application, and was plainly going to do so again in the second.

13. This evidence was not in her affidavits. It emerged at a time after the preparation of Mr Mendis’ affidavit. Nor is there any other evidence before the Court to say that Mr Mendis could have known that she had a friend who knew of her lie. This, in the circumstances, gives some credence to his account on this issue.

Mr Mendis’ Credibility: Part Two

1. The respondent says that there is documentary evidence before the Court that supports Mr Mendis’ account that the meeting concerning the disclosure occurred on 6 August 2008, and not August 2007. That is, that annexures “A”, “B”, and “C” to his affidavit of 29 August 2011 support the assertion that a meeting, or discussion, between Mr Mendis and Ms Cincotta occurred around 8 August 2008 about her program supervisor role.

2. Annexure “A” to Mr Mendis’ affidavit of 29 August 2011 is a copy of an email sent by Mr Mendis to Ms Cincotta on 8 August 2008. Annexure “B” is a letter to Ms Cincotta from Mr Mendis noting that her one year fixed term contract as a program supervisor ends on 21 August 2008. Annexure “C” is a letter from Mr Mendis to another person offering them a three month fixed term position of program supervisor.

3. The sequence of events in Mr Mendis’ account (denied by the applicant) is that Ms Cincotta’s disclosure occurred on 6 August 2008, and that on 7 August 2008 a conversation occurred between them where the applicant told him that, given her pregnancy, she was unable to work as a support worker and sought alternative placement.

4. Further, that a third conversation occurred on 8 August 2008 where the applicant pressed for a decision on her future role. Mr Mendis’ account is that, given concerns as to the safety of work in group houses, he had decided to leave her in the acting program supervisor position until she went on maternity leave.

5. I agree with Ms Doust that there is nothing express in any of this documentation to support Mr Mendis’ evidence that the meetings of 6 to 8 August occurred. There is nothing in the documentation that refers to any exposure, or disclosure, of Ms Cincotta’s “false claim” about her qualifications.

6. Annexure “C” to Mr Mendis’ affidavit of 29 August 2011 is a letter to another person offering them a position as an acting program supervisor. Beyond assertion, it was never explained how this assists in supporting Ms Mendis’ relevant account. On his own evidence there were a number of program supervisor positions. If the inference sought to be pressed is that this position was offered to another person because Ms Cincotta was no longer available then Ms Cincotta, on Mr Mendis’ own evidence, was told she would continue acting in such a position. The actual position offered to this other person was filled for “contingency purposes”. In context, it was an additional position ([18](n) of his affidavit of 29 August 2011). Annexure “C”, as Ms Doust submits, does not assist.

7. Annexure “B” is plainly, given its terms and the context of its timing, a “form” letter sent to Ms Cincotta noting the end of her fixed term contract. It would be expected that, even if another contract were to have been offered to her, such a letter, with its almost formulaic expression of gratitude, would have been sent.

8. As it turned out, Ms Cincotta did receive another letter, dated 8 September 2008, where she was informed that her acting program supervisor position was to be extended beyond 21 August 2008 (see annexure “K” to her affidavit of 19 July 2011).

9. While this letter may have assisted the respondent in the sense that the extension is consistent with what Mr Mendis said he told Ms Cincotta on 8 August 2008, annexure “B” to his affidavit, on its face, bears no relevant or helpful relationship to the gravamen of his account of that conversation.

10. The email at Annexure “A” of Mr Mendis’ affidavit (of 29 August 2011) is interesting. It is also used by the respondent now in support of the argument (referred to above) that Mr Mendis’ evidence should be understood in light of English being his “third” language, and therefore leading to some awkwardness of expression.

11. This then, says the respondent, leads to a reading of the email that supports Mr Mendis’ account of the claimed events of August 2008. The argument, to a great extent, derived from the first sentence of the email from Mr Mendis to Ms Cincotta.

    “Dear Joanne,

    Please read this email carefully and trying to understand the situation …”

12. The respondent says that this (“trying”) is a reference by Mr Mendis to his own attempt to understand the situation the applicant had put him in, and as this flowed from the claimed events of 6 to 8 August 2008. That is in particular the disclosure of deceit by Ms Cincotta, his professed inclination to assist her, and Ms Cincotta’s anxiety that people would contact him to make allegations about her. (His evidence was that during the conversations she repeatedly asked whether “anyone” had tried to contact him.)

13. I agree with Ms Doust that, even on a fair reading of the email, there is nothing to support the respondent’s argument in this regard. There is nothing otherwise in Mr Mendis’ evidence, or in the email as a whole, to suggest that he is seeking to convey some struggle on his part in understanding what occurred in early August 2008. I agree with Ms Doust that the words “Please read this email carefully” are directed to the applicant. What follows the sentence, again, is directed to her. In context this is not some expression of Mr Mendis’ internal struggle, but a plea to Ms Cincotta to seek to understand his position.

14. Further, the respondent’s focus on the word “trying”, and Mr Mendis’ use of it, misunderstands the context in which emails have come to be employed. I can take judicial note that the medium of the email (in concert with other forms of modern electronic communication media) do not aspire to the more “formal” approach that may be used in a business, or professional, letter. It does not take a lack of proficiency in English to explain the typographical and grammatical errors often seen in this medium. In context, what Mr Mendis was “trying” to convey to Ms Cincotta was “Please … [try] to understand the situation”. In short, the email does not support the respondent’s position or the reasoning now put forward.

15. However this is another example that supports rejecting the applicant’s submission that the Court should make a finding that Mr Mendis lied before the Court, and that such a finding should lead to the rejection of his account of relevant events without the necessity of some comparative analysis as to whether Ms Cincotta’s evidence should be preferred over his. This is because, even on the reading of the email urged by the applicant now, and accepted by the Court, there is an argument, or it is reasonably open to say, that the email may support Mr Mendis’ account of claimed events in August 2007.

16. On Mr Mendis’ account Ms Cincotta confessed her deceit on 6 August 2008. He expressed his concern as to the seriousness of this matter, and in particular the seriousness of lying. The arrangement was, he said, that he would “come back” to her about it on Friday (in context, 8 August 2008).

17. In the meantime the applicant approached him again the next day (7 August 2008) and pressed him to assist her. He said she indicated that, given her pregnancy, she did not want to work as a support worker, or to work in the “houses”.

18. A third conversation allegedly occurred on 8 August 2008, in which the applicant pressed for an answer as to his decision about her employment. Mr Mendis’ account is that he told her that he accepted her request that she not be put “back to houses”, and that he set out the immediate and longer term employment situation for her.

19. Given Mr Mendis’ account of Ms Cincotta’s emotional state, it may be allowed that the words at the beginning of the email were possibly some attempt at seeking to reassure her and calm her fear and agitation as expressed through the three alleged conversations over this period.

20. In light of this, also, it is not appropriate to make some general finding that Mr Mendis consistently lied under oath.

21. It may be said that, before the Court, even allowing for any of the linguistic or cultural considerations pressed by the respondent, Mr Mendis presented as overconfident, even arrogant, in his business abilities. It may also be that, as a result of this “over-belief” in his capacity, over the time between the relevant events occurring and his giving of evidence before the Court, he came to believe that what may initially have been some exaggeration of detail on his part had, in fact, occurred. This could explain some, though plainly not all, of the divergence between his account and that of Ms Cincotta.

22. In this circumstance some understanding can be given as to his belief before the Court in some events which in fact may not have occurred, as now “remembered”. This does not mean that he knowingly lied about the detail of some of these events. Nor that he lied about everything. The above highlights the caution to be taken in making a sweeping finding that a witness has lied before the Court, consistently and significantly, to such an extent that nothing he says is to be believed. I do not make such a finding in relation to Mr Mendis.

Ms Cincotta’s Evidence to be Preferred in Certain Respects

1. That is not to say that his account of these claimed events is to be preferred to that of Ms Cincotta’s. On balance, and for the reasons that follow, I accept (for the most part) Ms Cincotta’s account of these relevant events.

2. The applicant’s relevant account is that the claimed conversations of 6, 7 and 8 August are denied. Importantly, she says that she had informed Mr Mendis of her lack of the Certificate IV qualification, not on 6 August 2008, but much earlier in late August 2007.

3. The respondent relies on the email of 8 August 2008 as being consistent with, and resultant from, the conversations which Mr Mendis says he had with the applicant on 6 to 8 August.

4. On balance, I do not accept this. First, for reasons already explained I do not accept the respondent’s interpretation or explanation (Ms Doust described it as “spin”) of what Mr Mendis meant by the first sentence of the email.

5. Second, as already referred to above, I agree that the first sentence of the email can plainly be read as an exhortation to the applicant to try to understand the situation. It is here that (at least) one weakness in the respondent’s case is revealed. It is an example as to why the applicant’s assertion that Mr Mendis has lied to the Court has credibility.

6. That part of the email is not consistent with, nor does it flow from Mr Mendis’ account of the last claimed conversation with the applicant on 8 August 2007. What has remained unexplained before the Court by the respondent is, if in the last conversation (of 8 August), on Mr Mendis’ own account, Ms Cincotta readily accepted the outline of the work that he proposed for her, then why would he, on the same day, send her an email exhorting her to try and understand his position and to accept what he proposed. On his account she had already done so.

7. Mr Mendis alleges that Ms Cincotta said:

   “Oh Senaka, thank you! I can’t believe that you’ve kept me on. Thank you for keeping me in this position until I go on maternity leave. It’s letting me finish this role with dignity.”

8. These are hardly the words of someone of whom it is necessary to then exhort to accept the matters set out in the email. What Mr Mendis alleges Ms Cincotta said makes it clear she gratefully accepted what he proposed, and there was nothing for her to “try” and understand.

9. But equally, even if the respondent’s interpretation, or explanation, of the beginning of the email were to be accepted, it is still inconsistent with Mr Mendis’ account of the claimed conversations he said he had with Ms Cincotta.

1. It was never made clear just what he was “trying” to understand. By the time he sent the email his claimed initial reaction, and his inquiry (for example) as to the applicant’s claimed reference to her “dignity”, (see at [18](d) of the affidavit of 29 August 2011) on 6 August 2008, had been well and truly resolved by the last claimed conversation, if not earlier.

2. Mr Mendis’ evidence was also that after the discussion on 6 August 2008, while he regarded her lie as deceit and did not at that time intend to make her an exception to the usual practice, in such circumstances, of dismissal, he also felt she was “repentant” and had a “genuine sense of regret”. His evidence was that he did not want to damage her reputation.

3. By the time of the claimed conversation the next day (7 August 2008) his focus had moved to the concern about her safety if he were to accede to her request to work in the group homes, although his evidence was also that he remained “unsettled” by the earlier conversation.

4. However, if nothing else, his reported conversation with her on 8 August 2008 makes it clear that, at least by that time, he well understood the “situation” concerning the claimed deceit, whatever position he was in, and the applicant’s claimed anxiety. What he reports at [18](j) (of his affidavit of 29 August 2011) makes that clear. His claimed direction to her does not allow for any of the uncertainty which the respondent’s submissions seek to argue for now.

5. In his oral evidence before the Court, Mr Mendis was not questioned further about the affidavit during examination-in-chief. In            cross-examination Mr Mendis’ relevant evidence was that he sent the email to “summarise the decisions I made”, and that it was reflective of “an agreement we made”. Further, there was a “clear agreement between us” (with reference to the conversation of 8 August 2008).

6. In my view, the other evidence does not support Mr Mendis’ claimed conversations.

7. First, there is no mention in the email of any agreement, as would be expected if that were the case. Mr Mendis’ explanation before the Court, that he made no reference to any conversations or agreements in the email as a response to the applicant’s pleas to be allowed to retain her dignity because someone else may have seen the email, lacked credibility.

8. Ultimately, his explanation under cross-examination “retreated” to a position whereby Board Members had the theoretical capacity, albeit never before exercised, to read all emails.

9. Even this is not a satisfactory explanation in circumstances where a reference without detail to an agreement, or conversations, could have been made without disclosing specific reference to her deceit, and without evoking any further interest if the theoretical possibility of the Board reading the email were to have eventuated. There was no suggestion by Mr Mendis of any wrongdoing on his part in “assisting” Ms Cincotta in this by omitting these details, such as to attract criticism from the Board.

10. Further, it was his evidence elsewhere that he did not report her deceit to the Board because it was an operational matter, and as such one for him.

11. Second, in the context of considering whether to accept Mr Mendis evidence in this regard, what also remained unsatisfactorily explained was the reference in the letter to the impending cessation of her one year employment agreement (as a program supervisor), the intention to internally advertise the position, and the clear implication that she could apply for it (“… anybody can apply for the position vacant”).

12. I agree with Ms Doust that the words used in the email in this regard are inconsistent with those parts of the claimed conversations that Ms Cincotta was not going to be confirmed in her role permanently. The words used are, on balance, consistent with the likelihood of her being aggrieved by this rather than, as reported by Mr Mendis, that she felt grateful by what he had allegedly told her.

13. Third, nor is there any mention in the email of Ms Cincotta reverting back to a disability support worker position, which was part of the agreement they had reached. In the circumstances Mr Mendis’ evidence that “not all the information [was] there” can only be seen as self-serving. It provides further weight, in the balance, towards the applicant’s account.

14. Fourth, Mr Mendis’ evidence was that he had a “feeling”, arising from the conversations with Ms Cincotta, that she might leave the organisation. This was said to arise from the number of times (over the three days) that she questioned him as to whether anyone had rung him about her, and a number of altercations that she had had with another employee (Ms Escobar).

15. Apart from his assertion, the words and context of the conversations as claimed by him do not provide a basis for such a “feeling” to rationally arise. If his evidence is that Ms Cincotta, in effect, begged him to forgive her, and was grateful for his understanding and his agreement with her, then this, in context, is inconsistent with a “feeling” that she wanted to leave Sunnyhaven in a sense other than that she was to go on maternity leave in January 2009.

The Importance of Event Three in This Consideration of the Preferred Evidence

1. The third event relied on now by the respondent in support of the proposition that the applicant’s attack on Mr Mendis’ credibility must focus on, and be seen in light of, three events, is that of the meeting between Mr Mendis and Ms Cincotta, with Ms Mudaliar present, held in late September 2009 and concerning the applicant’s return to work.

2. The contest between the evidence here was not whether the conversation took place, but what was said.

3. The relevant elements of Ms Cincotta’s account are that she advised Mr Mendis she was ready to return to work, beginning with 10 to 15 hours per week because of childcare restraints, and then increasing her work to full time. Further, that a twenty-four hour “sleepover” shift would be difficult.

4. She claims Mr Mendis said he could not offer her 10 to 15 hours, to which she replied that she did not have available childcare such as to do more. She also says she raised the issue of Centrelink payments, which would continue on a part payment basis if she returned part time, but that the Centrelink payments were insufficient for her and her child.

5. Importantly, Ms Cincotta says that it was Mr Mendis who then said that if she were to work as a casual he would make an “informal agreement” with her to receive the hours that she could work. To achieve this, he said, she needed to give the respondent a letter to this effect. He advised that he did not want her, as a former supervisor, working in a house she had previously managed.

6. It was at this point that he called Ms Sue Warren, and directed that the applicant be given hours from the “Out and About” program. These were to be in a Saturday and Wednesday or Friday shift.

7. Ms Cincotta claims that she was subsequently only given shifts on Saturdays and Wednesdays. She approached Mr Mendis in June 2010 and stated that another worker was receiving causal shifts in addition to her full time job. She sought more shifts and was referred to Mr Barry Elliott, the relevant program supervisor. She spoke to Mr Elliott, but from October 2009 to May 2010 she was only ever given about four extra shifts, only two of which she was able to fulfil because of childcare difficulties.

8. Mr Mendis’ and Ms Mudaliar’s account agrees with Ms Cincotta’s to the extent that her childcare arrangements imposed limitations on her availability. However they say that another limitation she claimed was that if she worked more than 10 to 15 hours she would lose her Centrelink benefits. She did not want to do so because she wanted to spend more time with her baby.

9. While one option was discussed and rejected by Ms Cincotta as unsuitable, Mr Mendis told her that the only shifts suited to her requirements were the “five hour shifts” in the “Out and About” Program. The applicant said that this would suit her given that they were on weekends or evenings.

10. Mr Mendis then told her that because of funding uncertainty these shifts were only given to casuals. He and Ms Mudaliar then say that he posed the question to her that if she were a supervisor, and an employee put these “conditions” (limitations) to her, what would she do with that staff member.

11. They say that it was Ms Cincotta who then said that she would suggest that that person become a casual worker. Mr Mendis said if that was what she wanted then that could be done. The arrangement, as put to the relevant supervisor (who was called into the meeting at that point) was that she would work 10 to 15 hours a week in the “Out and About” program.

12. The applicant now argues that the accounts of this conversation of Mr Mendis and Ms Mudaliar are so “strikingly consistent” that their evidence should not be accepted in circumstances where both confirmed before the Court that they had not spoken to each other about their evidence, their accounts were prepared independently and essentially without recourse to file notes or other such records, and that this occurred two years after the conversation.

13. I agree with Ms Doust that the accounts are strikingly similar, not just as to the sequence of events, but also as to actual words and phraseology used.

14. Given that the accounts relate to the same event, some similarity as to what occurred, and what people said, must be expected. For example, while the accounts of Ms Cincotta on the one hand, and Mr Mendis and Ms Mudaliar on the other, differ in important ways as to what was said, some similarly in some commonly used words can be seen.

15. However, what the Court is being asked to accept is that Mr Mendis and Ms Mudaliar, after two years, have “perfect” recall of the conversation such that their use of words and phrases, repeatedly, is not just similar, but identical. Further, that this occurred without recourse to contemporaneous notes, and with no discussion with each other as to what was said.

16. Further, at one point in their accounts both Mr Mendis and Ms Mudaliar report that Mr Mendis posed the question to Ms Cincotta that if she were the supervisor, what would she ultimately do with an employee who had the difficulties she presented. This resulted in the applicant suggesting the course of action which Mr Mendis then accepted. Mr Mendis says his response was: “Well, if you want to become a causal employee …”. Ms Mudaliar says he said: “Well, if that’s what you want …”.

17. It is allowable that the conversation (putting aside the similarity point) may have proceeded in this way. But when both Mr Mendis’ and Ms Mudaliar’s account is read in context, the posing of the question reads as a clever contrivance to make out that Ms Cincotta sought causal work, and the Mr Mendis was magnanimous in agreeing to it.

18. The words referred to above (at [149]) certainly paint Mr Mendis as a compliant manager eager to accommodate Ms Cincotta. At another level, they present as a “good” person interested in Ms Cincotta’s welfare, seeking to deal with her demands in a difficult situation (the limited availability of work), and an almost reluctant acceptance (“Well…”) because she was putting herself into lesser employment situation (casual instead of permanent).

19. The picture of Mr Mendis that emerges from this is not consistent with the picture of himself that he sought to present throughout his evidence to the Court. That is, as a “perfect” manager, strong in his decision making, a benign supervisor, but ultimately focused on what was in the interests of the organisation of which he was the CEO, and his exclusive (of the Board) prominence in operational matters.

20. Importantly, what remained unexplained in the evidence was why Mr Mendis called Ms Mudaliar into the meeting with Ms Cincotta in late September 2009. His report of agitation on Ms Cincotta’s part in August 2007 was now over two years in the past. There was no evidence, even on Mr Mendis’ account of August 2007, that those reported matters and concerns had retained any currency. No explanation came from Ms Mudaliar as to any relevant understanding on her part.

21. On the evidence, Ms Mudaliar was, and continued to be, employed by the respondent as an “accountant”. There was no evidence that she had any direct role in staff management, personnel, and human resources or as an employment advisor to the CEO.

22. The meeting in September 2009 beyond its use as an example by the applicant in her attack on the credibility (and it must be said integrity) of Mr Mendis is important in understanding the sequence of events leading to the resolution of the matters in dispute in these proceedings.

23. The questions that arise, as referred to above, are why Mr Mendis felt the need to direct the presence of any other person at the meeting, and why that person was Ms Mudaliar? All the accounts of what occurred on that occasion, no matter what other differences are presented, agree that Ms Mudaliar was called by Mr Mendis to attend, and no explanation is proffered by any of the three protagonists as to why.

24. There was no evidence that Ms Mudaliar attended as a union or professional association representative. As referred to above, she was at that time (and continues to be) an accountant. There is no evidence she was there as a personnel or human resources practitioner. The evidence is that she was present as a result of Mr Mendis’ direction, not as some “friend” or support person for Ms Cincotta nor at her invitation or request. Ms Mudaliar was not Ms Cincotta’s supervisor, nor was she in any direct management line to her.

25. On all the accounts of what occurred, Ms Mudaliar made no substantive oral contribution. The “discussion” clearly was, on all (albeit varying) accounts, between Mr Mendis and Ms Cincotta. There was no satisfactory explanation put before the Court as to why a far more relevant person was not asked to attend. On the evidence, there were other supervisors, program managers, and managers who may have been called. Indeed, at the end of the meeting Ms Warren, a manager, was called into the office and given direction as to Ms Cincotta’s work. She was plainly available to be called to attend the meeting in place of Ms Mudaliar. In a management context she would have been a far more appropriate person to have present (see Mr Mendis’ affidavit of 29 August 2011 at [37]). The unexplained calling of Ms Mudaliar places Mr Mendis’ account, and his conduct, into question.

26. Before the Court both Mr Mendis and Ms Mudaliar rejected the suggestion that there existed between them any special relationship. For present purposes it is not necessary to make any such finding. Given the unexplained presence of Ms Mudaliar at the meeting, and her seeming irrelevance to what was discussed, it is open to find in the circumstances that Mr Mendis wanted her there as a person he could trust, and as a “witness”.

27. The answer to her presence at the meeting, in my view, arises in part from the evidence relating to the applicant’s claimed difficulties with another employee in and around May to August 2008

28. Mr Mendis agreed that Ms Cincotta was having difficulties with another program supervisor – Ms Escobar. The complaint by Ms Escobar referred to Ms Cincotta’s conduct towards her as being bullying, intimidation and harassment. On Mr Mendis’ evidence, these difficulties were elevated to a dispute between the two. Ms Escobar made a lengthy and detailed “formal” complaint about Ms Cincotta on 22 May 2008. She added further complaints on 2 June 2008 (see annexure “F” and “G” to Mr Mendis’ affidavit of 29 August 2011).

Ms Cincotta’s Evidence to be Preferred: Part Two

1. It is here that the evidence of Mr Atkins is important. Mr Atkins was employed by the respondent as a program supervisor from 17 November 2008 until November 2010. Mr Atkins gave evidence that as about the time Ms Cincotta returned to work from maternity leave (in 2010), Mr Mendis made critical comments about Ms Cincotta at supervisor meetings including that she was “mad” and “crazy”.

2. Mr Mendis denies this. There is however nothing to suggest that Mr Atkins was mistaken or had any incentive to lie about this. There was nothing in the evidence to suggest that Mr Atkins harboured any resentment or was disgruntled when he left the employment of the respondent such as to provide some basis for inventing such an express statement as to what Mr Mendis was reported to have said.

3. His evidence generally provides support for Ms Cincotta’s account that, following complaints by Ms Escobar, there was a change in Mr Mendis’ attitude towards her, and the hitherto direct communication with him was diverted to Mr Ian Mariner. Before the Court I understood Mr Mendis to deny that he had a very good relationship with Ms Cincotta. That is, that the relationship was of such character that it was especially different to that with other employees generally.

4. That such a relationship previously did exist is acknowledged by Mr Mendis in his account of the claimed conversations of 6 to 8 August 2008. On his account, he allowed direct contact from her, repeatedly (in an organisation of 78 people) on management and supervisory matters. This in circumstances where, as subsequently occurred (even on his evidence), such access was not available to the other supervisors.

5. In the absence of anything else to the contrary, it is open to take the view that Mr Mendis’ direction to Ms Mudaliar to be present at the discussion of late September 2009 was because Mr Mendis had developed such a view of Ms Cincotta that he considered it prudent to have Ms Mudaliar present when discussing an issue that was not going to be to Ms Cincotta’s liking.

6. While in part, and during the latter stages of Ms Cincotta’s employment, this could be explained by her change in role, no such change had been enacted up to and including, and as at, the time of the impugned conversation of September 2009.

7. In my view it is open on the evidence, and unchallenged by any evidence to the contrary (other than the accounts of the conversation itself and the comparable evidence given orally), to conclude that Mr Mendis came to this discussion with Ms Cincotta with the intention of putting her into the position of accepting casual, rather than permanent, employment status. An outcome which was achieved with her subsequent resignation as a permanent staff member.

8. In this context, particularly given her hitherto perceived volatility (as with Ms Escobar’s complaint) and, even on Mr Mendis’ evidence, the understanding that Ms Cincotta wanted to return to work as a permanent and ultimately full-time employee and that, therefore, she would not easily be persuaded to resign and resume as a casual, Mr Mendis ensured Ms Mudaliar’s presence to support his position should he require such support in the future

9. The striking similarity in the evidence of Mr Mendis and Ms Mudaliar in relation to this conversation is such, when seen in the circumstances referred to above, that I do not accept their account. I accept Ms Cincotta’s account.

10. The answer to the respondent’s submissions that, simply based on Mr Mendis’ and Ms Mudaliar’s direct denials that they manufactured or corroborated, this evidence cannot support a finding of corroboration of false evidence is rejected. It is the character of their own evidence, the very implausibility of their strikingly similar, precise accounts alone that provides the basis to find that it was the subject of some corroboration, and therefore not to be preferred.

11. In submissions Ms Doust urged that the Court give weight to the evidence of Mr Mark Hemsely, who has been employed by the respondent since the end May 2005. Mr Hemsely did not prepare an affidavit in these proceedings, as on his evidence he saw this as a conflict of interest in circumstances where he was approached by the applicant’s solicitors to do so. He appeared in response to a subpoena. It was his evidence that he is a friend of the applicant, as well as a former work colleague.

1. Ms Cincotta’s subsequent letter of resignation (see annexure “N” of her affidavit of 19 July 2011 and “H” to the affidavit of Mr Mendis of 29 August 2011), with its reference to “… following our conversation …”, is consistent with Ms Cincotta’s account. Any attempt by the respondent to suggest that the letter supports the proposition that she resigned at her own initiative, or at least without being forced into this situation by Mr Mendis, must be rejected. The mere fact that she authored and signed the letter of resignation is not sufficient in the circumstances to say she did so in isolation or exclusively at her own initiative. On Ms Cincotta’s (preferred) evidence, it was done as a result of the conversation with Mr Mendis.

2. Further, the terms of the letter are inconsistent with Mr Mendis’ evidence as to a conversation he says he had with Ms Cincotta following receipt of her letter of “resignation”.

3. Mr Mendis says that after receipt of this letter, on or about 22 September 2009, he rang Ms Cincotta and said:

   “Joanne, I received your letter regarding your resignation. I don’t understand why you wrote ‘I was unable to reduce my permanent hours.’ Why did you write that in? You were the one who asked for reduced hours and we gave them to you.”

4. What Ms Cincotta obviously and plainly meant by this in her letter was that after speaking to Mr Mendis (“… following our conversation …”) she realised based on what Mr Mendis said, even on his account, that it was not open to retain the “permanent” position and reduce her hours of work to accommodate her childcare needs.

5. Mr Mendis’ account of this claimed conversation reveals that he plainly now understands this (at least at the time of drafting his affidavit) when he reports Ms Cincotta’s purported answer as being:

   “What I meant was I was unable to reduce my hours the way I wanted …”

   What follows, plainly, further explains Ms Cincotta’s position as reported from both accounts of the one conversation in late September 2009, at which Ms Mudaliar was present.

6. Mr Mendis’ reported opening line of his claimed telephone conversation with Ms Cincotta is, in the circumstances, a contrivance to enable him to then report on a claimed conversation with Ms Cincotta that seeks to put the ultimatum presented to Ms Cincotta at the conversation attended by Ms Mudaliar in a more favourable light for him and, in that sense, the respondent.

7. In all the circumstances, therefore, Ms Cincotta’s account of relevant events in September 2009 is to be preferred. On this basis, I reject the respondent’s submission that there is no basis to infer, or conclude, that a reason that the applicant became a casual employee was because of her family responsibilities.

Comparator

1. The respondent consistently took the position in these proceedings that the applicant did not identify, on the evidence, an appropriate comparator for the purpose of establishing that she had been treated less favourably than other comparable employees.

2. To the extent that this may imply that no actual comparator was identified, then this complaint must be rejected as a criticism of the applicant’s case. As the authorities make clear, a hypothetical comparator, arising from the circumstances, is sufficient (Purvis).

3. In the current case the circumstances presented by the preferred evidence, and in key aspects even the evidence of Mr Mendis, is that of the appropriate comparator being another person employed by the respondent for a substantial period of full time employment with a satisfactory level of performance at the supervisory or managerial level and performing the same, or similar, duties to the applicant who required some flexibility in setting work hours. This comparator, of course, is a person who does not have family responsibilities such as to necessitate the particular arrangement of work hours.

4. I have already set out elsewhere in this judgment my view, on the preferred evidence presented, of Mr Mendis’ attitude towards Ms Cincotta. Whilst this attitude derived from difficulties perceived and presented by Ms Cincotta, by September 2009 it is clear, also on the evidence to be preferred, that Ms Cincotta’s family responsibilities were seen by Mr Mendis to be “demands” on her part and in this regard, were a further aspect of the “difficulty” presented by Ms Cincotta.

5. Although the evidence as to Mr Mendis’ attitude to other women in the respondent’s employment who had taken maternity leave and had family responsibilities was in dispute between the parties, what can be resolved for the purposes of this judgment is Mr Mendis’ attitude towards Ms Cincotta as set out above.

6. Further, and specific to the question of casual employment, and as also arising from the conversation of late September 2009, is that (for reasons already explained generally) I accept Ms Cincotta’s evidence that at this meeting Mr Mendis told her that he did not want her to work in group houses because former supervisors should not work in these houses after they have managed them.

7. Before the Court no evidence was presented that this was some expression of, or derived from, some policy of the respondent. There was no satisfactory evidence that it represented some policy or approach applied generally to all employees. If it was a matter which fell within the ambit of Mr Mendis’ operational responsibility, then no satisfactory explanation was provided as to the reason for this policy or “practice”, let alone where and how such a policy should have been applied to Ms Cincotta.

8. Mr Mendis denies this was said, which may explain why no evidence was presented as to the existence of this policy. However, given that, for reasons set out above, I accept Ms Cincotta’s account of the conversation, the relevant reasoning set out immediately above stands.

9. In all therefore, I find that a reason, or a part of the reason, that Ms Cincotta was led to accept casual work, as opposed to permanent part-time work, was because of her family responsibilities and the refusal of Mr Mendis to otherwise accommodate her needs.

10. Of course, this move to casual work needs also to be seen as part of the sequence of events flowing from the attitude of Mr Mendis to Ms Cincotta, and the non-extension of her contract as a program supervisor. Although, even if the contract has been extended, the “resignation” effected by the letter of 26 November 2008 (Annexure “N” to the affidavit of Ms Cincotta of 19 July 2011) would still serve to put her in the same position as at that time.

Claim 5: Constructive Dismissal

1. This flow of events then leads to consideration of the applicant’s claim that the circumstances of her cessation of employment are such as to amount to a constructive dismissal.

2. There was no real dispute between the parties as to when constructive dismissal may occur. As Ms Doust submitted, this is in circumstances where an employer behaves towards an employee in a way that entitles the employee to treat the employment as at an end (Thomson v Orica at [141]). The dispute centres around whether the evidence establishes that constructive dismissal can be said to have occurred, or arise, in this case.

3. The respondent says that the applicant’s employment ceased due to her inability or unwillingness to work with other employees, and her refusal to follow directions from the relevant manager, and not for any reason relating to her family responsibilities.

4. Here the events of May 2010 are important and appear to provide the immediate basis for the respondent’s assertion as to Ms Cincotta’s inability to work with others. (See also the matter of Ms Escobar’s complaint, and below for other instances.)

5. By this time Ms Cincotta was working on a casual, part time basis, on shifts in the “Out and About” program, which involved assisting those living in group homes, managed by the respondent, with their individual needs.

6. At the relevant time Ms O’Leary was the “team leader” for the Lorraine Street Group Home. Ms Judy Schokman (also referred to as Schomen in the evidence) had just replaced Ms Warren as the relevant coordinator of the “Out and About” program.

7. Ms O’Leary’s relevant evidence for the respondent was that on Friday 8 May 2010 she, as the person responsible for managing problems in the evenings or on weekends in the “Out and About” program, telephoned Ms Cincotta to tell her that, as a result of an incident in a group home on Friday night, the relevant worker was required to work an hour beyond her allocated shift hours and, given the “tight” budget restrictions on such hours for this program, a proposed outing with another “client” to be undertaken by Ms Cincotta was to be “shortened” by an hour.

8. On Ms O’Leary’s account Ms Cincotta became greatly upset, hung up the phone on her, and then proceeded to send her a number of text messages. This led to another telephone conversation where she says Ms Cincotta shouted and used a “hysterical” tone.

9. Ms O’Leary reported this to Ms Schokman and, in particular, said she found Ms Cincotta’s conduct unprofessional and her accusations of not understanding the needs of the clients as being forms of “abuse”.

10. Ms Schokman subsequently told Ms O’Leary that she had gone to the relevant group home, found Ms Cincotta already there, and that Ms Cincotta had refused to follow her instruction to provide a lesser number of hours of service to the client. In the meantime, Ms O’Leary said she continued to receive “angry and personal” text messages from Ms Cincotta.

11. On Monday 10 May 2010, Mr Mendis asked Ms O’Leary to prepare a report of the incident and advised that he would “be looking after this issue.”

12. Ms O’Leary’s evidence was that, based on what he had “heard”, but prior to receiving any oral account, let alone her written report, Mr Mendis told her that “As far as I’m concerned you followed the correct procedure …” (Ms O’Leary’s affidavit of 26 August 2011 at [7]).

13. Two things at least can be said about this. First, it adds weight to the applicant’s attack generally on Mr Mendis’ management style. Ms O’Leary’s evidence, put forward in these proceedings on behalf of the respondent, reveals that in this instance Mr Mendis, as the most senior manager in the organisation, had already made up his mind about this incident before hearing from either of the two main protagonists – Ms O’Leary and Ms Cincotta.

14. Second, beyond revealing an unfairness towards Ms Cincotta, Mr Mendis’ approach here is consistent with the view of the evidence set out elsewhere in this judgment. That is, that at some point (around July 2008), Mr Mendis began to perceive Ms Cincotta to be a “difficulty”, or troublesome. Her pregnancy, maternity leave and child care responsibilities provided the catalyst, or perhaps more correctly the vehicle, through which Mr Mendis sought to limit her participation in the respondent’s workforce and, ultimately, to effect her removal from it.

15. That Mr Mendis told Ms O’Leary that he would be “looking after this issue” is, at that time, inconsistent with his evidence before the Court that as CEO he would not be involved in every detail of supervisory and management conduct, and that in certain instances he sought to delegate these tasks.

16. For example, Mr Mendis denied that he had interviewed Ms Cincotta in August 2007 and said that this interview, involving a supervisory and management position, had been delegated to another, yet what on its face (and with respect to the protagonists) appeared to be a workplace dispute that, while it generated some heat, I can take judicial note was of the sort often occurring in many work places, required the personal and, importantly, immediate and pre-emptive intervention of the respondent’s most senior manager.

17. I should also note that Ms O’Leary’s evidence in this regard is consistent with that of Mr Atkins, who stated that after receipt of Ms O’Leary’s report, which on the evidence was produced to Mr Atkins on Monday 10 May 2010, following Mr Mendis’ direction to Ms O’Leary, he had conversations with Ms O’Leary and Ms Schokman, and he then forwarded this information and a “formal” written complaint from Ms Cincotta to Mr Mendis.

18. Regard must also be had to Mr Mendis’ version of the conversation he had with Ms Cincotta on or about Monday 10 May 2010. While Ms Cincotta’s account of the conversation disputes certain parts and differs from his, even allowing for Mr Mendis’ account to be accurate, this conversation supports Ms Cincotta’s case.

19. First, it is clear that, without considering Ms O’Leary’s report, Mr Mendis had already made up his mind about the events of 7 to 10 May 2010, in a way that was not favourable to Ms Cincotta. (“Your complaint is quite long. In the meantime …” at [43] of Mr Mendis’ affidavit of 29 August 2011.)

20. Second, Mr Mendis’ above reported statement lends weight to the view I have taken that, for some time, Mr Mendis had formed the view that Ms Cincotta was a “difficulty”(“… this can’t go on anymore. I will not tolerate your insubordination any longer” [emphasis added] at [43] of Mr Mendis’ affidavit of 29 August 2011).

21. There is no direct evidence before the Court of what Mr Mendis did about this incident, or to investigate Ms O’Leary’s or Ms Cincotta’s complaints.

22. On the best evidence available, it was Ms Cincotta, not Mr Mendis, who raised the matter with the Management Board of the respondent in her letter of complaint which canvassed many of the incidents and events relevant in these proceedings. (Letter dated 15 May 1010 at annexure “P” to Ms Cincotta’s affidavit of 19 July 2011.)

23. It may be that at that time Mr Mendis felt the matter had been taken out of his hands. But what is clear is that he took no action in the time available between 10 and 15 May 2010. This is consistent with his predetermined view of the events of 7 to 10 May 2010 and of having already made up his mind about Ms Cincotta.

24. It must also be said that the Management Board’s, and Mr Mendis’, subsequent actions to address the matter do not support any proposition that the respondent acted in a way that could be construed as effective.

25. First, Ms Cincotta received a letter dated 22 May 2011 from Ms Marianne Fitzpatrick, who described herself as “Board President Sunnyhaven Ltd”. The letter reveals at least one telephone conversation with Ms Cincotta. Importantly, and relevantly, the letter states that the appointment of an “independent mediator” was being arranged and the mediator was expected to contact her “within the next week”. It is important to note that the letter acknowledged that an independent mediator was being arranged as it was determined that Ms Cincotta would be “more comfortable” with this (annexure “Q” to Ms Cincotta’s affidavit of 19 July 2011).

26. However, Ms Cincotta did not receive any communication from any “independent mediator” within the next week. She received a letter dated 10 June 2010 from Mr Mendis. The direct language and tone of the letter had changed from the earlier “mediation of your complaint” to “formal complaint” and the “investigation” of the formal complaint. Plainly the earlier “mediation” had now become an “investigation.” (Annexure “R” of Ms Cincotta’s affidavit dated 19 July 2011.)

27. In this letter Mr Mendis also advised her that an organisation, “Dare to Aspire”, had been engaged to investigate, and that she should present herself on 15 June 2010 at a particular address to meet with “Dare to Aspire”.

28. It is not clear whether this meeting ever took place, although it appears from the contents of the letter of 15 June 2010 to the applicant from an associate, Ms Kristy Durrant, in the employment of “Watkins Tapsell, Solicitors and Barristers” (annexure “S” to Ms Cincotta’s affidavit of 19 July 2011), and the references to “a substantive appointment” on 2 June 2010, that, contrary to earlier correspondence, the respondent had “instructed” Ms Durrant to “investigate a complaint you had made”. The letter asserts that Ms Cincotta’s failure to attend at an appointment, and failure to further contact Ms Durrant, had prevented Ms Durrant from completing the investigation.

29. By letter dated 1 July 2010 (annexure “T” to her affidavit of 19 July 2011), Ms Cincotta asserted that there had been no earlier correspondence. Further, Ms Durrant’s receptionist, who had telephoned Ms Cincotta on her behalf, advised, by the reading of a letter over the telephone, that she should bring a solicitor to the meeting with Ms Durrant, which Ms Cincotta confirmed had been arranged. Ms Cincotta also plainly had a further lengthy telephone discussion with Ms Fitzpatrick. But by that time Ms Cincotta had sought advice from the Australian Human Rights Commission (“AHRC”) and had determined to pursue a “discrimination complaint”.

30. By letter dated 8 August 2010, Ms Durrant referred to Ms Cincotta’s letter of 1 July 2010, received on 9 July 2010, and advised that her instructions had been withdrawn (annexure “U” of Ms Cincotta’s affidavit of 19 July 2011).

31. I cannot help but note that if the respondent ever asked itself why this matter has ended up in this Court, its conduct, as evidenced by the sequence of letters referred to above, and the constant changes in direction provide at least a part of the answer. Another part plainly derives from the conduct of Mr Mendis.

32. To avoid any doubt, I note that plainly these proceedings are not directed to any questions of unfair dismissal or action arising under any industrial jurisdiction. It is trite, but important, to remember that they are concerned with the question of discrimination under the SDA or AHRC Act.

33. It is in this light, and this light only, that the consideration above of the events of May 2010, and the events leading up to May 2010, and even the events of the correspondence outlined above, reveal that the respondent behaved towards Ms Cincotta in a way which entitled her to treat her employment as being at an end as at, or about, May/June 2010.

34. In reaching the cessation of Ms Cincotta’s employment by the respondent, I am satisfied, based on all the above, that at least a part of the reason for Ms Cincotta’s dismissal, and certainly the vehicle by which it was achieved, was her childcare responsibilities. This also was influenced by her earlier pregnancy and maternity leave in the way explained above.

Conclusion

1. In all it is appropriate that a declaration be made that the respondent had committed unlawful discrimination in relation to Ms Cincotta pursuant to the SDA. Accordingly, I will so declare.

2. The AHRC Act (s.46PO(4)(d)) provides for remedies in the circumstances of unlawful discrimination as understood within the ambit of the Act. Ms Cincotta should be compensated for the loss and damage she suffered and as set out above, in particular in relation to the non-renewal of her contract, and of a permanent appointment, her “causal employment” and, ultimately, the constructive dismissal from employment.

3. Ms Cincotta, in her application to the Court, sought the following relevant orders:

   “1. An apology

   2. $86,751.25 Damages for loss of income and other contractual entitlements – Refer Attachment A

   3. General Damages for non-economic loss - $10,000;

   4. Interest.”

Damages

Lost Wages

1. At “Attachment A” to her application to the Court the applicant has set out calculations of relevant damages in the event that she were to be successful in these proceedings, whether in whole or in part. Given that she had been successful in greater part, regard must be had to this tabulation:

Date	Claim	Amount
1.	28/11/2008 to 05/01/2009	Loss of wages due to taking maternity leave earlier than planned 5 weeks x $1,068.58 per week	$5,342.90
2.	2008 to 2009	1 year’s bonus for difference between Grade 5 year 2 and Grade 6 under SACS Award	$4,555.00
3.	01/10/2009 to 08/05/2010	Difference between wages which would have received if employed full time after returning from maternity leave – 32 weeks x $1,068.58 per week = $34,194.56, less actual income of $8,980.00	$25,214.56
4.	09/05/2010 to 17/08/2010	Loss of wages from termination of employment until commencement of new employment – 14 weeks x $1,068.58 per week	$14,960.12
5.	18/08/2010 to 18/09/2011	Difference between current income of $500.97 per week since commencement of new employment and income applicant would have been receiving but for acts of discrimination and termination of employment for 12 months - $1,068.58 - $500.97 = $567.61 x 52 weeks [The applicant has calculated this as twelve months. It is clearly thirteen months.]	$29,515.72
(ITEMS 1 TO 5) SUBTOTAL	$79,558.30
6.	Loss of Statutory Entitlement to Superannuation	Calculated at 9% of items 1 to 5 above.	$7,162.95
TOTAL DAMAGES FOR LOSS OF INCOME	$86,751.25

1. The parties have also helpfully provided written submissions.

2. Item 1 above was abandoned by the applicant during the closing submissions. Item 2 relates to a matter for which discrimination has not been made out.

3. In order to calculate the applicant’s entitlement to damages it is critical to consider the position that Ms Cincotta would have held, and thus the pay she would have been entitled to, but for (in part) the respondent’s discriminatory acts.

4. While Ms Cincotta was initially employed as a casual direct support worker she was subsequently made permanent. On 22 August 2007 she was promoted to program supervisor on a 12 months contract. For the reasons provided above, the non-renewal of Ms Cincotta’s program supervisor contract on 22 August 2008 was, at least in part, a result of discrimination by the respondent. Consequently, up until 21 August 2009 the applicant would have been receiving the wage of a permanent program supervisor. The position attracted a rate of pay of $27.91 per hour, with full time employees working 38 hours (see annexure “K” to Ms Cincotta’s affidavit of 19 July 2011). Thus, the permanent full-time weekly salary of a program supervisor was $1,060.58.

5. However the applicant continued to work as an acting program supervisor until 28 November 2008, when she left on maternity leave, and thus was paid the same wage as she would have received in the absence of discriminatory conduct. Since damages are “… compensatory and no more” (Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121), the applicant is not entitled to any damages for this period.

6. The applicant commenced maternity leave on 28 November 2008 and remained on maternity leave until 30 September 2009. Since the applicant was on unpaid maternity leave she was not entitled to pay. The applicant is not entitled to, nor has she sought, any damages for the period of time from 28 November 2008 to 30 September 2009.

7. Up until 21 August 2009 the applicant would have remained a permanent employee but for (at least in part) the discriminatory conduct which induced her to resign her permanent status for that of a casual worker. However, there is no evidence before the Court to allow for an inference to be drawn that the applicant’s contract as a program supervisor would have been otherwise renewed upon its expiration on 21 August 2009. Therefore, the applicant’s wage from 22 August 2009 would be that of a permanent direct support worker, not a permanent program supervisor. The relevant wage is $19.79 per hour (see annexure “M” to Ms Cincotta’s affidavit of 19 July 2011).

8. However, whether the Ms Cincotta’s wage would have been that of a full time employee or part time worker was a matter of dispute between the applicant and respondent. Throughout her evidence, the applicant claimed that she would have returned to work on a part time basis and then gradually resumed full time employment. Therefore the damages sought in Item 3 of attachment “A” to her application were not pressed by the applicant in her reply submission of 14 October 2011. Instead, the submissions reflected a gradual resumption of full time work, dividing the time between the applicant returning to work and ceasing employment into two periods:

   “i) Period between 1 October 2009 and 23 January 2010 (her son’s first birthday) when it submits that the applicant would have worked part time, at 15 hours per week;

   ii) Period between 24 January 2010 and 8 May 2010, when it submits that the applicant would have worked full time.”

9. The basis for selecting 24 January 2010 as the date upon which Ms Cincotta would have resumed full time work is that, in her affidavit of 7 August 2011 at [42], she stated that she would have returned to full time work at the time of her son’s first birthday.

10. However, other than this one instance, the applicant consistently asserted before the Court that she would have returned to full time employment after six months of part-time work. Consequently, damages should be calculated with regard to the permanent part-time wage the applicant would have received for the first six months of her return to work as a direct services worker, and then as against her permanent full-time wage in the same position. A part-time employee is assessed as working at 15 hours, as was desired and requested by Ms Cincotta in her meeting with Ms Mendis and Ms Mudaliar in the later part of September 2009. A full time employee is calculated at 38 hours per week, in accordance with the relevant award (see annexure “E” to Ms Cincotta’s affidavit of 19 July 2011). This is reflected in Items A and B below.

11. The applicant sought damages from 9 May 2010 to 18 September 2011, being in excess of 15 months, on the basis that the “applicant had been treated wrongfully after many years service” ([39] of the applicant’s reply submissions dated 14 October 2011). In reply, the respondent relied on the “tenuous nature of the employment relationship” between Ms Cincotta and the respondent and provided for damages for a period of 3 months from 17 August 2010 (“… essentially 6 months from 8 May 2010”)([28] of the respondent’s submissions dated 7 October 2011)

12. However, as set out above, I have found that Ms Cincotta’s “tenuous employment relationship”, her casual status, was at least in part based on Mr Mendis’ discriminatory conduct in inducing her to resign her permanent status. The casual working relationship between Ms Cincotta and the respondent cannot be relied upon to restrict the damages the applicant is entitled to, as that “tenuous relationship” was, in part, the consequence of discrimination. In the circumstances, Ms Cincotta’s employment relationship must be assessed as that of a permanent employee.

13. The respondent failed to make submissions in circumstances where the Court did not accept Mr Mendis’ and Ms Mudaliar’s account of the meeting of late September 2009, and found that Ms Cincotta’s casual status was, in part, the result of discriminatory conduct. Therefore there is nothing before the Court to prevent it making the order for damages as sought by the applicant. In this context, it is appropriate that the Court make orders in accordance with the applicant’s submissions and the appropriate damages are set out at Items C and D below.

1. The damages to be awarded are:

Date	Claim	Amount
A	01/10/2009 to 01/04/2010	Difference between the income the applicant would have received if employed for six months part time as a direct services worker after returning from maternity leave and what she actually was paid. Weekly part time pay = 15 hours x $19.79 = $296.85 Weekly casual pay = $280.62 Lost income = ($296.85 - $280.62) x 26 weeks	$421.98
B	01/04/2010 to 08/05/2010	Difference between the income the applicant would have received if employed as a full time direct services worker after six months part time in the same role and what she was actually paid. Weekly full time pay = 38 hours x $19.79 = $752.02 Weekly casual pay = $280.62 Lost income = ($752.02 - $280.62) x 5 weeks	$2,357.00
C	09/05/2010 to 17/08/2010	Loss of wages from termination of employment until the commencement of new employment. 14 weeks x $752.02 per week	$10,528.28
D	18/08/2010 to 18/09/2011	Difference between the applicant’s current income since the commencement of new employment and the income the applicant would have been receiving but for acts of discrimination and termination of employment. Current weekly wage = $500.97 ($752.02 - $500.97) x 56weeks	$14,058.80
SUBTOTAL of Items A to D	$27,366.06
E	Loss of Statutory Entitlement to Superannuation	Calculated at 9% of Items A to D above	$2,462.95
TOTAL DAMAGES FOR LOSS OF INCOME	$29,829.01

1. I note that the calculations in the above table are based on rounded full weeks. The respondent rounded to full weeks in its calculations, while the applicant used both rounded and unrounded time periods. In the absence of any consistent approach to the contrary, I have adopted the practice of rounding the periods of time to the nearest week.

General Damages

1. The applicant sought (as explained) general damages in the range of $5,000 to $10,000. The respondent asserted that the applicant’s case had failed to make a causal link such as to warrant the award of general damages, and made no submissions regarding the sum of general damages if the Court found that such a causal link had been established.

2. A determination of the appropriate general damages requires consideration of the merits and elements of the case, and a cognisance of general community standards. It is necessary to consider the “tort” committed by the respondent, in particular the conduct of Mr Mendis and the Management Board, and the impact of their actions on Ms Cincotta.

3. As found above, the non-renewal of Ms Cincotta’s program supervisor contract was in part due to a discriminatory act. As a result of the non-renewal of her contract, Ms Cincotta claimed to have felt “rejected” and “worthless” within the organisation. This feeling was exacerbated by what she believed to be a change in the morale of her work colleagues and their attitude toward her. On her evidence, she felt “embarrassed to be pregnant” and, as a consequence of the additional stress caused by her work situation, decided to commence maternity leave early. ([49] to [54] of Ms Cincotta’s affidavit of 19 July 2011.)

4. Further, the cessation of Ms Cincotta’s permanent status, and her commencement as a casual employee, and the conflict this resulted in between Ms Cincotta and Ms O’Leary, Ms Schokman and Mr Mendis, caused considerable distress to the applicant. Still further, Ms Cincotta claims that prior to her pregnancy, and continuing once she returned to work, she experienced depression ([81] of her affidavit of 19 July 2011). Ms Cincotta attributes this to the treatment she received prior to going on maternity leave, and the events subsequent to and surrounding her return to work.

5. While there is no medical evidence, such as a psychological report, before the Court to establish any “severe depressive illness”, as was found in Gama v Qantas Airways Ltd (No 2) [2006] FMCA 11; (2006) 195 FLR 475 at [125], it is clear from Ms Cincotta’s evidence that the non-renewal of her program supervisor contract in August 2008, and the incidents following her return from maternity leave, resulted in her suffering some anxiety and distress.

6. In 2002, Raphael FM awarded $10,000 for hurt, humiliation and distress that was a consequence of discriminatory conduct (Randell v Consolidated Bearing Company (SA) Pty Ltd [2002] FMCA 44). In Maxworthy v Shaw [2010] FMCA 1014 I awarded damages of $25,000 in circumstances where discrimination had rendered the applicant “mentally shy”, both in her personal and work life, and exacerbated her anxiety and depression.

7. In this case, the discriminatory conduct of the respondent was, in part, the cause of the non-renewal of Ms Cincotta’s contract. While this discrimination is of such a nature that it demands compensation at the “upper level” of the appropriate awards (per Smith FM in Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931), it is worth noting that Ms Cincotta’s own conduct, specifically her “lie” regarding her Certificate IV qualification, also contributed to her distress surrounding that event. In the circumstances an amount of $9,000 is appropriate.

Apology

1. The applicant never abandoned her claim for a written apology from the respondent. It is appropriate in the circumstances that an apology is given and, particularly given the Management Board’s poor management of Ms Cincotta’s complaint of 15 May 2010, that such an apology be made by the Management Board.

2. Ms Cincotta’s written complaint of 15 May 2010 was directed to the Board Members (see annexure “P” to Ms Cincotta’s affidavit of 19 July 2011). The Board, in responding to Ms Cincotta’s letter by way of a telephone conversation and a letter dated 22 May 2010 (see annexure “Q” to Ms Cincotta’s affidavit of 19 July 2011), and in arranging independent mediation, accepted responsibility for the complaint and undertook to resolve the dispute.

3. Despite this assumption of responsibility, the Board failed to continue to oversee the resolution of Ms Cincotta’s complaint and the mediation they had “determined” to embark upon did not take place. Instead, Ms Cincotta was contacted first by Mr Mendis, who made no reference that he was acting on behalf of the Management Board, and then by a law firm who had been employed to “investigate” her “formal complaint”.

4. The Board’s failure to properly respond to, and resolve, Ms Cincotta’s complaint renders it, of itself and beyond the acceptance of responsibility for the conduct of Mr Mendis who acted on the Board’s behalf, partially responsible for the discriminatory treatment she received, and makes it appropriate that any apology received by Ms Cincotta should be made by the Management Board on behalf of the respondent.

Pre-judgment interest

1. The applicant sought interest pursuant to s.76(3) of the Federal Magistrates Court Act 1999 (Cth) (“the FMC Act”). That is, interest up until the date of judgment. No good cause has been shown for not making an order under this section. In the circumstances it is appropriate such an order be made (s.76(3)(b)).

2. Interest is to be calculated for the period between the date that the cause of action arose and the date at which judgment is entered. In this case, that is the date of the constructive dismissal of Ms Cincotta on 8 May 2010 until the present date, 8 March 2010 That is, 1 year and 10 months.

3. Pursuant to s.76(3)(c) of the FMC Act, the rate of interest is that that the Federal Magistrates Court, or the Federal Magistrate, thinks fit. It has been the usual approach of the Federal Magistrates Court to adopt the rate of interest applied by the Supreme Court of the state in which the case was heard (see for example EME Cardiff(No 1) Pty Ltd v EME (NSW) Pty Ltd & Anor [2008] FMCA 476 per Barnes FM at [64]; APRA v Cougars Tavern [2008] FMCA 369 per Raphael FM at [20]).

4. In light of there being no reason to depart from this practice, interest up to judgment in the New South Wales Supreme Court is to be calculated pursuant to s.100 of the Civil Procedures Act 2005 (“the CPA”), which relevantly provides:

   “(1) In proceedings for the recovery of money (including any debt or damages or the value of any goods), the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit:

   (a) on the whole or any part of the money, and

   (b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect.

   (2) In proceedings for the recovery of a debt or damages in which payment of the whole or a part of the debt or damages has been made after the proceedings commenced but before, or without, judgment being given, the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit:

   (a) on the whole or any part of the money paid, and

   (b) for the whole or any part of the period from the time the cause of action arose until the time the money was paid.”

5. The relevant practice note (SC Gen 16) issued on 16 June 2010, provides that:

   “Practitioner and litigants should expect that where, pursuant so s.100(1) and (2) of the Civil Procedure Act 2005, interest in respect of a pre-judgment period is to be included in a judgment, the Court will have regard to the following rates, being rates agreed upon the Discount and Interest Rate Harmonisation Committee established following a referral by the Council of Chief Justices:

   (a) in respect of the period from 1 January to 30 June in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and

   (b) in respect of the period from 1 July to 31 December in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.”

6. The last cash rate published by the Reserve Bank of Australia prior to January 2012, on 7 December 2011, was 4.25 per cent. Having regard to the above practice note, the relevant rate of pre-judgment interest in the current case is 8.25 per cent. Therefore, the amount the respondent should pay as interest is $4,511.64 on damages, and $1,361.25 on general damages.

7. I will make orders in favour of the applicant consistent with the above.

Post-judgment interest

1. The applicant also seeks interest pursuant to s.77 of the FMC Act, being interest from the date of judgment. In the current case, it is appropriate that such an order be made. I cannot see any reason not to make such an order.

2. Rule 26.01 of the Federal Magistrates Court Rules 2001 (Cth) provides that the rate of interest for an order of post-judgment interest under the FMC Act is that prescribed by the Federal Court Rules 2011 (Cth) (“FC Rules”). Rule 39.06 of the FC Rules states:

   “The prescribed rate at which interest is payable under section 52 (2) (a) of the Act is:

   (a) for the period from 1 January to 30 June in any year — the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before the period commenced; and

   (b) for the period 1 July to 31 December in any year — the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before the period commenced.”

3. As set out above at [366], the applicable cash rate is 4.25 per cent. As such, the rate of interest is 10.25 per cent. Accordingly, I will make an order in favour of the applicant consistent with the above.

Costs

1. I will hear the parties on costs.

I certify that the preceding three hundred and seventy-one (371) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  8 March 2012