Commonwealth of Australia v Evans

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FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Evans [2004] FCA 654

DISCRIMINATION – Sex Discrimination Act1984 – taking of carer’s leave – employment contract not renewed – whether dismissal on grounds of sex and/or family responsibilities – no evidence to support finding of discrimination on ground of sex – whether any evidence to support finding of discrimination on ground of family responsibilities

PRACTICE & PROCEDURE – appeal from judgment of Federal Magistrate – formation of appeal grounds – challenge to factual foundations of steps in reasoning process – whether any evidence to support findings of Federal Magistrate

RELIEF – declarations – form of declaration – level of specificity required – discretionary relief – whether grant of declaratory relief in addition to award of damages warranted

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO
National Crime Authority Act 1984 (Cth) s 47
Federal Court of Australia Act 1976 (Cth) subs 24(1)
Sex Discrimination Act 1984 (Cth) ss 5, 8, 14, 107, 108
Public Service Act 1999 (Cth) ss 20, par 22(2)(b)

Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 cited
Elliott v Nanda [2001] FCA 418; 111 FCR 240 referred to
Hall v A & A Sheiban (1989) 20 FCR 217 referred to
Leslie v Graham [2002] FCA 32; EOC 93-196 referred to
Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1 considered
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 considered
Rugema v J Gadsten Pty Ltd (HREOC H97/1) referred to
Rural Press v Australian Competition and Consumer Commission (2003) 203 ALR 217 considered
Shiels v James (unreported, Federal Magistrate Court of Australia, Kenneth Raphael FM, 13 September 2000) quest
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002 FCAFC 157; (2002) 55 IPR 354 referred to
Thomson v Orica Pty Ltd (2002)116 IR 186 distinguished
Warramunda Village Inc v Pryde (2001) 105 FCR 437 considered

COMMONWEALTH OF AUSTRALIA v RACHEAL EVANS

N 1469 of 2003

BRANSON J
25 MAY 2004
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1469 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

COMMONWEALTH OF AUSTRALIA
APPELLANT

AND:

RACHEAL EVANS
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

25 MAY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be stood over to 31 May 2004 at 9.30 am for the purpose of making of orders giving effect to these reasons, including orders as to costs.

2.The parties provide to the Associate of Branson J by noon on 28 May 2004 an agreed minute of the orders to be made (including the orders as to costs) and if agreement has not by then been reached, the minutes of orders for which they will respectively contend and brief outlines of submissions in support of the orders.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1469 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES…

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Details
Case
[2004] FCA 654
Decision Date

CaseChat Overview and Summary

In the matter of Commonwealth of Australia v Evans, the appellant, Ms Evans, appealed against the decision of the Federal Magistrate, who had dismissed her claim of discrimination and harassment under the Sex Discrimination Act 1984 (Cth). The primary legal issue before the court was whether Ms Evans was treated less favourably than male members of the NCA staff by reference to the leave entitlements available to male employees under the National Crime Authority Certified Agreement 2000-2002. The court considered the relevant provisions of the Public Service Act, the Sex Discrimination Act, and the National Crime Authority Act to determine the identity of Ms Evans’ employer and the applicable laws governing discrimination and harassment claims. The court found that while Ms Evans was employed under the Public Service Act, the decision not to extend her contract was made by the Chairperson of the NCA or a delegate, and therefore the NCA could be considered her employer for the purposes of the discrimination claim. The court also held that the NCA could be held liable for the discriminatory conduct of its employees, including Mr Purchas, if it failed to take reasonable steps to prevent such conduct.

The court's reasoning and outcome focused on the application of the relevant statutory provisions and the evidence presented in the case. The court found that the Federal Magistrate's decision was incorrect in some respects, particularly in relation to the inferences drawn from the evidence. The court held that Ms Evans could have expected her contract to be renewed for a period of one year, and that the decision not to renew her contract was influenced by her attendance record and the concerns relating to her attendance record arising from her taking of carer's leave. The court also found that Mr Purchas's concerns about Ms Evans's attendance were influenced by his views on her taking carer's leave, and that this influenced his grading of her performance review.

The appeal was allowed, the orders of the Federal Magistrates Court were set aside, and fresh orders were made in lieu thereof. The parties were given the opportunity to bring in an agreed minute of the orders to be made, including orders as to costs, to reflect these reasons for judgment. The amounts awarded by the Federal Magistrate by way of special damages for economic loss would not be challenged, but fresh calculations of interest would be necessary for those amounts as well as for the award of non-economic loss proposed by the court. The court also considered the question of declaratory relief and found that it was not necessary or appropriate to grant such relief in this case.

In conclusion, the court found that Ms Evans was treated less favourably than male members of the NCA staff by reference to the leave entitlements available to male employees under the Certified Agreement, and that this constituted discrimination under the Sex Discrimination Act. The court awarded Ms Evans $12,000 for non-economic loss and ordered fresh calculations of interest for the amounts awarded. The parties were given the opportunity to agree on the orders to be made, including orders as to costs, and to provide brief outlines of their submissions in support of their respective positions.

Orders

Orders of the court

1. The appeal be stood over to 31 May 2004 at 9.30 am for the purpose of making of orders giving effect to these reasons, including orders as to costs.

2. The parties provide to the Associate of Branson J by noon on 28 May 2004 an agreed minute of the orders to be made (including the orders as to costs) and if agreement has not by then been reached, the minutes of orders for which they will respectively contend and brief outlines of submissions in support of the orders.

Background

Background to the litigation

At the relevant time s 47 of the NCA Act provided:‘(1)Subject to sections 48 and 49, the staff of the Authority shall be persons engaged under the Public Service Act 1999. (2) For the purposes of the Public Service Act 1999: (a)the Chairperson and the APS employees assisting the Chairperson together constitute a Statutory Agency; and (b)the Chairperson is the Head of that Statutory Agency.’ UNDISPUTED FACTS As is relatively common in cases of this kind, many of the subordinate facts upon which Ms Evans relied were not in dispute. Consideration of Ms Evans ‘Points of Claim’ and the appellant’s ‘Points of Defence’ reveal that the appellant admitted the following:(a)Ms Evans commenced employment with the NCA as an APS5 Intelligence Analyst on 1 July 1999 for a period up until 30 June 2000;(b)Ms Evans’ contract of employment with the NCA was subsequently renewed for a further three months from 1 July to 30 September 2000;(c)On or about 25 July 2000 a decision was taken within the NCA not to extend Ms Evans’ contract of employment beyond 30 September 2000.Consideration of the evidence led by the respective parties reveals that the following facts were not in truth in dispute between the parties:(d)at all relevant times Ms Evans had a dependent son for whom she had primary responsibility to provide care and support;(e)during the period 1 January to 30 June 2000 Ms Evans took a number of days leave from her employment by reason of her own illness or to provide care to her son;(f)the leave taken by Ms Evans did not exceed her contractual entitlement to take personal leave;(g)Michael Purchas (‘Mr Purchas’), a Superintendent of the Australian Federal Police, was at all relevant times working on secondment with the NCA as Acting Manager Investigations;(h)as Acting Manager Investigations it was Mr Purchas’ responsibility to gather information about and determine the strategic direction of the NCA investigations and, in consultation with team leaders, to plan for proposed operational workloads, staffing changes and replacements;(i)Mr Purchas did not directly supervise Ms Evans although he received reports in relation to her and other staff;(j)Ms Evans worked as a member of a team supervised by Peter Baker (‘Mr Baker’);(k)in early July 2000 Mr Purchas conducted Ms Evans’ ‘Performance Recognition Program’ review (‘the Performance review’);(l)prior to and during the Performance review Mr Purchas raised with Ms Evans his concern that the amount of leave that she was taking was affecting her performance adversely and said words to her along the line of ‘I want 100 per cent commitment from you’; (m)the highest grade that Ms Evans could have received on the Performance review was 4;(n)for reasons which included the amount of leave that she had taken, Mr Purchas gave Ms Evans a grade of 2 on the Performance review;(o)shortly after the Performance review Ms Evans was absent from her employment for a period of 11 days, a medical practitioner certifying that she was unfit for work because of ‘acute anxiety disorder’;(p)upon her return to work on 25 July 2000, Ms Evans was advised by Mr Purchas that the NCA did not intend to extend her employment contract beyond 30 September 2000;(q)on or about 25 July 2000 Ms Evans received written notification from Wayne Thompson (‘Mr Thompson’), Regional Executive Officer, that it was not proposed to extend her engagement beyond 30 September 2000;(r)on 25 July 2000 Mr Purchas responded to an e-mail from Ms Evans in terms which included the following:‘… earlier today I informed you that the Authority was not intending to extent [sic] your employment contract beyond 30 Sept 2000. … I again pointed out to you that the position you currently occupy needs to be filled on a full time basis and that over the last few months this has not been the case. I made you aware that Operation Batton would be commencing within the next couple of weeks and that it would be essential to have stability with the analytical support. You appeared to accept my concerns and agreed to inform me either later today or at least by first thing tomorrow what time frame you had in mind. I clearly formed the view that you had an intention of leaving the Authority in the very near future.’(s)on 26 July 2000 Ms Evans replied to Mr Purchas by e-mail saying, amongst other things:‘I respect the fact that Operation Batten is to commence shortly. I will endeavour to meet the requirements of this Operation, in good faith, until such time as my employment ceases with the Authority.At no time have I indicated any intention of not fulfilling the obligations of my contract.’(t)on 27 July 2000 John Veale (‘Mr Veale’), the Human Resources Manager for the NCA, after being informed by Mr Thompson that there was a workplace issue between Ms Evans and Mr Purchas, spoke to Ms Evans who informed him that Mr Purchas had been unreasonable about the amount of time she had taken off; (u)on 10 August 2000, as part of a general movement of people between teams, Ms Evans was transferred to an investigation team headed by Michael Birley (‘Mr Birley’);(v)on 14 August 2000 Ms Evans attended a meeting at which Mr Birley and David Shannon (‘Mr Shannon’), Manager, Operational Support for the team headed by Mr Birley, were present;(w)Mr Birley’s diary entry with respect to the meeting of 14 August 2000 includes the following:‘- Meeting with Rachel Evans/David Shannon, 2nd floor re lack of ops [?] support/commitment to team as an analyst (contract expiring shortly as per convn with Mike Purchas). -Rachel asked her intentions for future support of the team due to heavy workload and need for ops [?] support and [?] analyst-commitment. -Rachel stated that this matter would be resolved in the near future, and didn’t want to say anything further.’(x)on 17 August 2000 Ms Evans attended a meeting with Gary Allen (‘Mr Allen’), Regional Director of the NCA, who is now deceased, at which Mr Thompson was present;(y)later the same day Ms Evans sent an e-mail to Mr Allen which stated, amongst other things:‘Thank you for responding to my grievance complaint. Unfortunately I feel it necessary to resign my position effective tomorrow Friday 18 August 2000. I apologise for the short notice however I do not believe that this will effect Operations on my team as I have filled my current position for less than one week.’(z)Ms Evans did not thereafter work with the NCA.REASONS AND ORDERS OF THE MAGISTRATE

Evidence

Evidence Before The Court

The section headed The Evidence reviews the evidence of each of the witnesses seriatim. In respect of some but not all of the witnesses, consideration of his or her evidence concludes with general observations relevant to credibility. Some findings of fact are found in the section headed The Evidence. I mean no disrespect to his Honour when I observe that the practice of reviewing the evidence of each witness seriatim rather than considering the evidence either on a chronological or on an issue by issue basis can make it difficult to identify the precise findings of fact made by the decision maker and the basis upon which those findings were made. Those difficulties have arisen on this appeal. In the section headed Findings, the Federal Magistrate records his principal findings of fact. Some of the findings relate to issues which were not really in dispute between the parties. Other findings relate to issues which were at the heart of the parties dispute. His Honour found that Mr Purchas ‘was unhappy with the concept of carer’s leave’. He also found that Ms Evans’ grading on the Performance review would have been higher had Mr Purchas not been influenced by his views on her taking carer’s leave. However, his Honour was not satisfied that Mr Purchas told Ms Evans that she could not take further carer’s leave or that a complete prohibition on her taking such leave could reasonably have been inferred from anything that Mr Purchas said. Inferences drawn by his Honour which were critical to his decision are also recorded in this section of the reasons for judgment. While the appellant did not to any significant extent challenge his Honour’s findings of subordinate fact, it did challenge the inferences that his Honour drew from those facts. In particular the appellant challenged the inferences drawn by his Honour in the following passage from the Findings section of his reasons for judgment:‘I am of the view that the evidence indicates that Ms Evans could have expected that her contract would be renewed for a period of one year. It seems that the reference upon which she was working was an important one. Indeed it was because of its importance that Mr Purchas had his concerns about her attendance. I find the circumstances surrounding her contractual arrangements to be most unsatisfactory. Nobody was prepared to accept responsibility for what occurred. An effort was made to blame the deceased Mr Allen. But I believe that Mr Allen only acted on the advice of someone else. That someone else could have been Mr Purchas. I think in all probability the first decision just to renew her contract for three months was made in the knowledge of the budgetary cuts and in the knowledge that Ms Evans was shortly to be given a performance review by Mr Purchas. I am of the view that the probabilities are that had she received a better report from Mr Purchas and had he not been so concerned about her attendance record that [sic] the contract would not have been determined on 30 September and would probably have been renewed until 30 June the following year. I am unable to accept the suggestions made in the evidence that the non-renewal of Ms Evans’ contract, coming so soon as it did after the performance review happened in a vacuum. The total lack of documentation suggests to me that the decision not to renew Ms Evans’ contract was taken, at least in part, because of her attendance record and the concerns relating to her attendance record arose, at least in part, from her taking of carer’s leave.’

Decision

Reasons for decision

BRANSON J
In my view the appropriate award for non‑economic loss in the circumstances of this case is $12 000.CONCLUSION The appeal will be allowed, the orders of the Federal Magistrates Court set aside and fresh orders made in lieu thereof. The parties will be given the opportunity to bring in an agreed minute of the orders to be made, including orders as to costs, to reflect these reasons for judgment. The amounts awarded by the Federal Magistrate by way of special damages for economic loss will not, as I understand it, now be challenged. It may, however, be necessary for fresh calculations of interest to be undertaken in respect of those amounts as well as in respect of the award for non‑economic loss that I propose. In Leslie v Graham at [82] I observed:‘By her application, Ms Leslie has claimed various heads of declaratory relief. The power of the Court to make a declaration is discretionary … I am not satisfied that it is either necessary or appropriate in this case to grant declaratory relief. The power which the Federal Magistrate exercised in granting declaratory relief in this case was also discretionary in nature. I am again inclined to doubt that a case for the grant of declaratory relief in addition to an award of damages has been demonstrated. The parties will, however, have an opportunity to urge a different view upon me should they wish to avail themselves of it.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

Ms Evans contended that the decision of the Federal Magistrate should be affirmed for reasons other than those on which his Honour relied. In particular, Ms Evans contended that his Honour should have found that she was treated less favourably than male members of the NCA staff by reference to the leave entitlements available to male employees under the National Crime Authority Certified Agreement 2000-2002 (‘the Certified Agreement’).CONSIDERATIONEmployer Although the Notice of Appeal does not raise any issue concerning the identity of Ms Evans’ employer, consideration of the reasons for decision of the Federal Magistrate requires consideration of this issue. As is mentioned above, it appears that Ms Evans was at all relevant times employed or engaged under the Public Service Act. It is clear that she worked within the NCA, a Statutory Agency, of which the Chairperson was the Head (see s 47 of the NCA Act). For the purposes of the SDA a person employed or engaged under the Public Service Act is deemed to be employed by the Commonwealth (see s 108 of the SDA). However, the Commonwealth itself is not an entity capable of discriminating against a person in a way rendered unlawful by the SDA. The SDA recognises that difficulties will attend proof that an act was done on a particular ground where the act is not the act of an individual. The SDA by s 107 provides that where it is necessary to establish that a body corporate has done an act on a particular ground, it is sufficient to establish that a person who acted on behalf of the body corporate acted on that ground. The SDA contains no comparable provision reaching to the Commonwealth which is not a body corporate. It is therefore necessary, where an APS employee alleges that he or she has been discriminated against by his or her employer in a manner rendered unlawful by the SDA, to look to s 20 of the Public Service Act. Section 20 vests in an Agency Head, on behalf of the Commonwealth, all the rights, duties and powers of an employer in respect of APS employees in that Agency. The relevant Agency Head so far as Ms Evans’ employment was concerned was the Chairperson of the NCA. The relationship between s 20 of the Public Service Act and s 106 and s 108 of the SDA was apparently not argued before the Federal Magistrate, nor was it argued before me. So far as the decision taken within the NCA not to extend Ms Evans’ contract of employment beyond 30 September 2000 is concerned, it was presumably accepted by the parties that the decision was made either by the Chairperson or by a person to whom the Chairperson had lawfully delegated his authority in that respect. It may be presumed that the parties similarly accepted that the Performance review was conducted by Mr Purchas pursuant to a lawful delegation from the Chairperson and that Mr Purchas transferred Ms Evans to the investigation team headed by Mr Birley pursuant to a lawful delegation from the Chairperson. However, so far as the other conduct of which Ms Evans complained is concerned (eg the alleged criticism for taking carer’s leave and the alleged harassment and pressure placed on Ms Evans after 25 July 2000) I do not think that the appellant is to be regarded as having defended Ms Evans’ allegations on the basis that this conduct was engaged in, if at all, by the Chairperson or his delegate.