Dare v Hurley
[2005] FMCA 844
•12 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DARE v HURLEY | [2005] FMCA 844 |
| HUMAN RIGHTS – Sex discrimination and pregnancy discrimination in employment – applicant dismissed due to asserted poor performance and unauthorised absence after revealing her pregnancy and seeking maternity leave – unfair dismissal by reason of pregnancy. CONTRACT – Employment – breach of contract – terms relating to misconduct and dismissal – unfair dismissal in breach of implied terms of contract. |
| Equal Opportunity Act 1984 (WA), s.66A Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO Sex Discrimination Act 1984 (Cth), ss.5, 7, 14 |
| Addis v Gramaphone Co [1909] AC 488 Johnstone v Bloomsbury Health Authority [1992] QB 333 Mooney v Commissioner of Police (No 2) [2003] NSWADT 107 |
| Applicant: | KISHA DARE |
| Respondent: | PATRICK HURLEY trading as PGH Environmental Planning |
| File Number: | SYG1079 of 2004 |
| Judgment of: | Driver FM |
| Hearing dates: | 3, 15 and 20 June 2005 |
| Date of Last Submission: | 19 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Beckett |
| Solicitors for the Applicant: | Employment Lawyers |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Coleman & Greig |
ORDERS
The respondent shall pay general damages to the applicant in the sum of $3,000.
The respondent shall pay special damages to the applicant in the sum of $9,005.51.
The respondent shall pay interest up to judgment on the damages awarded pursuant to orders 1 and 2 at the rate of 10.5 per cent from 23 May 2003.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1079 of 2004
| KISHA DARE |
Applicant
And
| PATRICK HURLEY Trading as PGH Environmental Planning |
Respondent
REASONS FOR JUDGMENT
Introduction and background
Kisha Dare is a former employee of Patrick Hurley. Ms Dare brings these proceedings under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) in consequence of the termination of a complaint of sex and pregnancy discrimination alleging breaches of the Sex Discrimination Act 1984 (Cth) (“the SDA”). The complaint was terminated by a delegate of the President of HREOC on 12 March 2004 because there was no reasonable prospect of the matter being settled by conciliation.
Ms Dare contends that she was dismissed from her employment because she was pregnant. In her complaint to HREOC Ms Dare stated that she signed a contract of employment with PGH as an office manager on or about 15 April 2003. She stated that, on or about 24 or 25 April 2003, she was advised by her doctor that she was pregnant. She commenced work with PGH on 28 April 2003 and decided to await the outcome of an ultrasound test confirming her pregnancy before informing her employer. She stated that she informed Ms Karen Hurley (the wife of Mr Patrick Hurley) that she was pregnant on 14 May 2003. Ms Dare told HREOC that on 21 May 2003 she was informed by Mr and Mrs Hurley that they had decided to terminate her employment “due to the cost of hiring a replacement”. Ms Dare also complained to HREOC that Mr Dare changed the terms of her employment and made her a temporary employee. She complained that on 23 May 2003 she was contacted by a labour hire company, Elissa Scott Recruitment, and advised that her employment had been terminated because of poor work performance.
Mr Dare denies any unlawful discrimination. He responded to HREOC that Ms Dare’s employment was terminated because she had acted inappropriately in deleting documentation from the company’s computer system and by installing password protection on documents contrary to company policy. Mr Hurley regarded this as a malicious attack on the business justifying the termination of Ms Dare’s appointment.
Mr Hurley told HREOC that, during a meeting on 21 May 2003, he told Ms Dare that she had no maternity leave entitlements and discussed with Ms Dare all of the options available for accommodating her pregnancy. Mr Hurley said that Ms Dare’s misconduct overtook the priority of this issue and severed any trust and confidence the business had in her and led to the decision to terminate her employment.
The application, response and evidence
Ms Dare relies upon her second amended application filed on 30 May 2005. In that application Ms Dare provides particulars of her claim. She relies upon ss.5(1), 7(1) and 14(2)(a), (c) and (d) of the SDA. Ms Dare asserts that on 21 May 2003 Mr Hurley unilaterally varied her employment contract from permanent full time employment to a temporary engagement, resulting in repudiation of the employment contract and on 23 May 2003 Mr Hurley summarily dismissed Ms Dare, unlawfully discriminating against her by not affording her an opportunity to provide information in relation to the whereabouts of documents allegedly deleted and password protected by Ms Dare, not affording Ms Dare an opportunity to respond to the allegations of misconduct warranting summary dismissal and by terminating Ms Dare’s employment by way of a telephone call made by Elissa Scott of Elissa Scott recruitment to Ms Dare while she was on sick leave. Ms Dare also seeks relief for an asserted breach of her employment contract in the Court’s accrued jurisdiction.
Ms Dare seeks damages for non economic loss and economic loss in consequence of the asserted breaches of the SDA and the contract.
Ms Dare relies upon her three affidavits made on 24 October 2004, 7 May 2005 and 30 May 2005. Annexed to the third affidavit (annexure D) is what purports to be a handwritten note prepared by Ms Dare on 21 May 2003 detailing the events of which she complains. I received that document as evidence over the objection of Mr Robinson, taking into account the affidavit of Adrian Barwick, solicitor, made on 2 June 2005 setting out his recollection of being given that document by Ms Dare on or about 16 June 2003.
In her first affidavit Ms Dare deposes as to the facts and circumstances of her complaint to HREOC. In paragraph 17 of that affidavit she deposes as to the following statements being said by Mr and Mrs Hurley at a meeting between them and Ms Dare on 21 May 2003:
We have obtained legal advice so we have decided to terminate your employment because of your pregnancy. It does not have anything to do with poor work performance. We are more than happy with your performance. The problem is that it would cost us more time and money than it is worth to have to get someone in to replace you when you are off work for the baby.
Through her solicitors, Ms Dare subpoenaed from the respondent’s present and former solicitors documents that might fit the description of the legal advice referred to above. On 3 June 2005, during the course of the first day of the trial of the matter, Mr Robinson informed the Court that neither firm of solicitors had any documents to produce in response to the subpoena.
In her second affidavit, Ms Dare responds to the affidavit of Patrick Hurley sworn on 20 February 2005. She concedes that a staff lunch referred to in her first affidavit took place on 13 May 2003 as asserted by Mr Hurley. She also concedes that she was asked on 20 May 2003 to attend a meeting on 21 May 2003 at 5.00pm. She denies other details asserted by Mr Hurley in his affidavit. Ms Dare also responds to the affidavit of Karen Hurley sworn on 21 February 2005. Ms Dare concedes that she “passworded some documents” but states that she only did so as directed by Karen Hurley “and Stephen Davies”. Ms Dare admits sending an SMS message to Karen Hurley at around 7.45am on 23 May 2003 stating that she was sick and would not attend work. She also admits turning off her mobile phone subsequently as she was unwell. She states that she received a telephone call from Elissa Scott at about 12.00pm on about 23 May 2003 and deposes as to the conversation between her and Ms Scott at that time. She denies other assertions made by Mrs Hurley in her affidavit.
In her third affidavit Ms Dare deposes as to her loss and damage and her efforts to mitigate her loss.
Mr Beckett also tendered the following documents as evidence in Ms Dare’s case:
·her 2004 income tax return (exhibit A1);
·the PGH employee manual, “current as at 30 February 2003” (sic) (exhibit A2);
·the letter of appointment sent by PGH to Ms Dare (known then as Kisha Bradshaw) dated 15 April 2003 (exhibit A3).
I also received as evidence of the Court’s own motion Ms Dare’s information sheet filed on 13 April 2004 with the attached letter from HREOC to Ms Dare’s former solicitors dated 26 March 2004 enclosing the notice of termination dated 12 March 2004 and accompanying letter of the same date, together with a copy of the form of complaint completed by Ms Dare.
Under cross-examination Ms Dare generally resisted attacks upon her credibility. She admitted, however, that her recall on some points of detail was imperfect. She admitted that paragraph 2.5 of her second affidavit was incorrect. Mr Beckett tendered an email (exhibit R2) which established that Ms Dare only worked on Friday, 16 May 2003 from 8.30am until 1.00pm[1].
[1] Exhibit R1 is an email sent on 14 May 2003 relating to payment for a stationery order
Ms Dare also admitted that in paragraph 10 of her affidavit of 24 October 2004 she was mistaken as to the date. The correct date was 13 May 2003 as was pointed out by Ms Dare in her second affidavit. Ms Dare admitted that there was some difference in wording between her complaint to HREOC and her affidavit evidence. She stated that there was no difference in substance. She conceded that it was possible that at the lunch on 13 May 2003 Mr and Mrs Hurley congratulated her on her pregnancy. She could not recall.
Mr Robinson questioned Ms Dare closely about the note purportedly prepared by Ms Dare on 21 May 2003. She stated that this had been given to her then solicitor prior to submitting her complaint to HREOC and she did not regard it as her responsibility to ensure that it was attached with that complaint or to her first or second affidavits.
Ms Dare confirmed that she received her employment contract with PGH on 15 April 2003. She understood that she was subject to three months probation and read and understood the contract. She confirmed that the contract did not contain any clause giving her an entitlement to a warning prior to termination. Ms Dare confirmed that Mrs Hurley showed her around the office when she commenced employment and that Mrs Hurley showed her the PGH policy manual and made mention of the requirements of Standards Australia. Ms Dare accepted that Mrs Hurley told her that she should call Mr Hurley if she was sick and unable to come to work. She confirmed that she had read the PGH policy manual and understood it, including the section concerning the password protection of documents.
Mr Robinson asked Ms Dare about her pregnancy. She stated that at the time of the lunch on 13 May 2003 she was about seven weeks pregnant. Her baby was born about a month late. She was uncertain about the date of conception but thought it was probably early April or late March 2003. She agreed that it could possibly be as early as early March 2003. She agreed that by mid May 2003 she was two and half months pregnant. Ms Dare agreed that there was no change in the manner of her treatment by Mr and Mrs Hurley after she revealed her pregnancy.
In response to questions from Mr Robinson, Ms Dare conceded password protecting only one document, either a fax or a letter. She denied password protecting the documents alleged by Mrs Hurley as having been password protected. She stated that she provided her passwords to Elissa Scott by telephone on 23 May 2003. In response to questions from me, Ms Dare stated that Ms Scott had telephoned her to request the passwords and had said that Mrs Hurley required them. In response to a question from Mr Robinson, Ms Dare confirmed that there was nothing in her affidavits about this. She did not know why.
Under re-examination Ms Dare confirmed that Mrs Hurley explained the stationery ordering procedure of PGH to her and stated that the procedure required her to find a stationery provider. She also stated that her complaint to HREOC had been prepared by her former solicitor, who had also prepared her first affidavit. Her present solicitor, or his secretary, had prepared her second affidavit. She stated that she relied upon them to put into the complaint and affidavit everything that should be there.
Ms Dare stated that she understood that there were privacy reasons for password protecting documents and that it had been her practice in her former employment with the RAAF to password protect documents.
At the end of the trial Ms Dare was recalled to give further evidence as to her economic loss. Mr Beckett showed Ms Dare a bundle of documents which she identified as Centrelink receipts from touch screen machines used by her in order to search for possible job vacancies. She stated that she used these in order to apply for jobs. Mr Beckett tendered these documents: exhibit A5. Mr Beckett also tendered a bundle of Centrelink statements as to benefits received by Ms Dare under the NewStart allowance scheme: exhibit A4.
Under cross-examination concerning this additional evidence and in relation to a notice to produce financial records, Ms Dare stated that she was unable to produce statements for her ANZ savings account used by her at the time of her employment with Mr Hurley and when she received benefits from Centrelink, as she had closed the account and disposed of the statements. Ms Dare stated that she was treated by Centrelink as being unfit for work for the duration of her pregnancy. She said that she was not actually unfit and did in fact work for much of the period of her pregnancy. She admitted that statements received from Centrelink showed income of 20 cents for each relevant period. Ms Dare said she did not understand what that meant. She admitted working during the period when she received NewStart allowance and receiving about $500 per week. Ms Dare stated that she declared this employment to Centrelink and did not know how Centrelink arrived at an income figure of 20 cents. She denied concealing information about her employment from Centrelink. Ms Dare admitted having to pay back approximately $3,800 to Centrelink in respect of overpaid NewStart allowance. She said that this overpayment occurred because Centrelink determined that she was living in a de facto relationship with her boyfriend, although she regarded it as an independent single relationship. Ms Dare said that Centrelink made its decision because of information she disclosed in about January 2004 showing her boyfriend as the father of her child. Ms Dare denied suggestions by Mr Robinson that she had been dishonest in her dealings with Centrelink and was simply seeking to make more money from her present application before the Court.
In re-examination Ms Dare said that she considered herself available to work following the termination of her employment with the respondent and that she started looking for work from May 2003.
Ms Dare also gave evidence in re-examination that she had a message bank facility on her mobile phone that took messages if her mobile phone was turned off. I permitted Mr Robinson to cross-examine on this question on the basis that this was fresh evidence. Ms Dare denied a suggestion from Mr Robinson that she was untruthful in stating that she had the message bank facility on her mobile phone on 23 May 2003. She agreed that her phone was switched on at around 12.00pm on that day when she received a telephone call from Elissa Scott as reflected in paragraph 2.10(d) of her affidavit made on 7 May 2005.
Respondent’s evidence
Mr Hurley relies upon his own affidavits made on 18 May 2004 and 20 February 2005 as well as the affidavit of his wife Karen Hurley made on 21 February 2005 and the affidavit of Dianne Green, made on 21 February 2005. In addition, a former employee, Stephen Davies, was subpoenaed by the respondent to give oral evidence.
Stephen Davies
In his oral evidence in chief Mr Davies stated that he was employed by PGH at the same time as Ms Dare until December 2003. He was employed as an information technology assistant and maintained the respondent’s computer systems. Mr Davies stated that he was involved in maintaining the security of the PGH computer system and in the protection of information by passwords. In performing his duties he was instructed by Mr and Mrs Hurley. He stated that he required their authorisation in order to password protect documents. He stated that he did not authorise Ms Dare to password protect documents. Mr Davies stated that in order to delete a document from the PGH computer system two steps needed to be taken. He only deleted documents when he was asked to. He stated that he could recall no problems in his employment relationship with PGH.
Under cross-examination Mr Davies stated that he could recall being involved in the issue of password protection of documents on or about 23 May 2003. He recalls speaking to Mrs Hurley on the afternoon of 23 May 2003. This was a Friday. Mr Davies at the time only worked on Tuesdays and Fridays. He stated that although he was contactable outside his working hours on a mobile number, that this was unlikely to have been on the day before (a Thursday) because he was doing an examination. Mr Davies stated that there were seven persons working at PGH at the time who all had access to computers and who each had a log on password. Mr Davies knew some of the other passwords. The system in the office was networked so that access to information on the PGH server could be gained from any computer.
Mr Davies said that the information on the PGH server was backed up each night and information could also be downloaded onto a portable device such as a USB. Mr Davies said that if a document was deleted from the server prior to the backup occurring each night then it would be lost. His recollection was that stationery order templates were created on the PGH server and would ordinarily have been backed up each night. The document would still be backed up if it was password protected, so long as it had not been deleted from the server.
Mr Davies could not recall the passwords “cookie” or “tfft”. He said that log on passwords were not the same as passwords which may have been used to protect documents.
Dianne Green
Dianne Green is a contractor of PGH. She performs bookkeeping services for PGH among some 47 clients. In May 2003 she performed services for about 25 clients, including PGH. Ms Green deposes as to her recollection of what occurred at a lunch she attended with Mrs Hurley and other PGH staff (including Ms Dare) on Tuesday, 13 May 2003. She deposes that at the lunch Ms Dare revealed her pregnancy and was congratulated by Mr and Mrs Hurley. She deposes that after Mr Hurley left the restaurant Ms Dare spoke to Mrs Hurley about maternity leave and said that her baby would be due in December. Mrs Hurley had said:
That’s fine but I have to discuss this with Patrick and get back to you about what we can do.
Ms Green deposes that about a week after the discussion at the lunch she prepared a typewritten note which forms annexure A to her affidavit. The note is headed “statement by Dianne Green” and purports to be Ms Green’s recollection of the conversation that occurred at the restaurant on 13 May 2003.
Under cross-examination Ms Green said that as best as she could recall she prepared her typewritten statement on Tuesday, 20 May 2003. She denied creating the statement in 2005. She said that when she prepared her statement she thought that Ms Dare’s maternity leave might be an issue. She denied knowing that Mr and Mrs Hurley opposed Ms Dare having maternity leave at the time. She denied knowledge of a file note prepared by Mrs Hurley relating to the same discussion at the restaurant. She agreed when showed Mrs Hurley’s file note of the discussion that it was very similar to her own. She denied discussing her recollections with Mrs Hurley prior to preparing her note. She denied preparing her note in order to assist Mr Hurley with the litigation.
Ms Green said that she did not give her statement to Mrs Hurley but instead placed it on the PGH personnel file (relating to Ms Dare). In response to a question from me she said that the file was available to Mr and Mrs Hurley and that her typewritten statement would have been available to them from the time it was prepared on about 20 May 2003. She denied ever having seen previously the file note in similar terms prepared by Mrs Hurley. She stated that her typewritten statement had been prepared from a handwritten note.
Patrick Hurley
Mr Hurley is the respondent. In his first affidavit he deposes as to the duties Ms Dare was required to perform and the employer’s attitude to the password protection of documents. He deposes as to the revelation of Ms Dare’s pregnancy at the lunch on 13 May 2003. He deposes as to a meeting between him and Ms Dare with Mrs Hurley on 21 May 2003 when they discussed maternity leave. He deposes that at that meeting he and Mrs Hurley had sought information from Ms Dare as to what leave she was seeking.
Mr Hurley deposes that on 22 May 2003 Ms Dare was “generally uncooperative” and did not follow directions for work. He deposes that on the evening of 22 May 2003 Mrs Hurley reported to him that she had been unable to find some documents that Ms Dare had been working on that day. He deposes that the documents were eventually located by Mrs Hurley but were found to have been password protected. He deposes that he and Mrs Hurley were annoyed by this as it was contrary to PGH policy.
Mr Hurley deposes that on 23 May 2003 he received a telephone call from his wife who told him that Ms Dare had sent her a text message saying that she was sick and would not be coming into work. He deposes that his wife later told him that she had been unable to contact Ms Dare. He deposes as to a conversation with his wife later in the day when he informed his wife that Ms Dare should be sacked because she had password protected documents contrary to policy and had also failed to follow instructions concerning sick leave. He deposes as to the information subsequently given to him by Elissa Scott through his wife about the termination of Ms Dare’s employment and the recovery of three passwords from Ms Dare.
In his second affidavit Mr Hurley responds to the affidavit of Ms Dare.
Under cross-examination Mr Hurley stated that the personnel arrangements concerning Ms Dare were generally undertaken by his wife and he left it to his wife to deal with the problems that emerged on 22 and 23 May 2003. He confirmed that his information about what happened came to him through his wife. He stated that prior to 20 May 2003 he had not formed any adverse conclusions about Ms Dare’s work performance.
Mr Hurley maintained his recollection of the events at the lunch on 13 May 2003. He denied reassuring Ms Dare about the security of her employment. He denied even thinking about the issue of maternity leave on that day. He stated that during the period between 13 May 2003 and 21 May 2003 he was concerned to sort out the issue of maternity leave. He asked his wife if Ms Dare had any maternity leave entitlement. The issue was discussed with Ms Dare at the meeting on 21 May 2003 but he took no notes of that discussion. He said that his wife took notes which he saw after the meeting. He first saw his wife’s typewritten note of the meeting on 24 or 25 May at their home. Mr Hurley accepted that the order of the conversation in his affidavit was different from his wife’s file note of the conversation on 21 May 2003. He said that he believed his recollection as to the order in which things were said in his affidavit was correct and he preferred that to his wife’s note.
Mr Hurley denied converting Ms Dare’s employment from full time permanent to temporary and denied sacking Ms Dare because of her pregnancy.
Mr Hurley said that he was willing to accommodate unpaid maternity leave for Ms Dare but required clarification of what Ms Dare wanted. He said that the meeting on 21 May 2003 was cordial but not friendly.
Mr Beckett asked Mr Hurley about paragraph 7 of his first affidavit. Mr Hurley stated that he had asked Ms Dare to speak to him on several occasions on that day and had received no response. That was the reason for his statement that Ms Dare had not followed his directions for work and had ignored him on several occasions on that day. Mr Hurley said that he was unaware at the time that Ms Dare was unwell.
Mr Beckett asked Mr Hurley about the stationery order documents that were the cause of the problem on 22 and 23 May 2003. Mr Hurley said that he had seen one or other of these documents in template form some time before 22 May 2003. He first learned that there was a problem with these documents on the evening of 22 May 2003. He agreed that it was possible that Mrs Hurley had brought documents home that evening that she had downloaded from the backup tapes on that day. He agreed that he relied upon his wife to tell him what had occurred. Based upon what he was told he believed that Ms Dare had deleted business documents from the PGH server deliberately. He did not speak to Ms Dare about the matter. He agreed that it was possible that the documents might have been saved onto a personal computer hard drive. He thought at the time that Ms Dare had acted maliciously because deletion of documents required a two step process which required an intention.
Mr Beckett asked Mr Hurley about the employee manual requirements concerning sick leave. Mr Hurley stated that his understanding of the sick leave terms required employees to inform him by telephone if they were sick although he accepted that the manual did not specifically refer to a telephone obligation. He stated that an SMS message to his wife was not sufficient compliance. He said that he was upset on 23 May 2003 because of the sequence of events culminating in the absence of Ms Dare on that day. He stated that he did not refer to the employee manual in deciding to terminate Ms Dare’s employment for misconduct. He said that he referred to her letter of appointment. He agreed that he did not give Ms Dare any oral or written warning before terminating her employment. Mr Hurley was not able to say that there was any particular urgency in accessing the stationery order documents on 22 or 23 May 2003 but the issue was the inability to access the documents.
Mr Beckett asked Mr Hurley about the sacking of Ms Dare on 23 May 2003. Mr Hurley accepted that he might have made his decision to terminate Ms Dare’s employment at lunch time on that day rather than at the end of the day as stated in his affidavit. He stated that he saw no point in waiting and that in the circumstances he was not interested in hearing any explanation from Ms Dare.
In response to questions from me Mr Hurley stated that the stationery order document was probably recovered from the back up tape run on the evening of 21 May 2003. Mr Hurley also stated that a personnel file was kept for each employee at his home office but he could not recall whether he saw the file note prepared by Mrs Hurley about the meeting on 21 May 2003 on a personnel file. He thought he saw it first at home. I showed him the statement prepared by Ms Green about the conversation on 13 May 2003 and Mr Hurley said that he had never seen it before.
Under re-examination Mr Hurley said that the cost of finding a temporary employee to replace Ms Dare if she had taken unpaid maternity leave would be less than the cost of hiring a replacement permanent employee through Elissa Scott Recruitment. By reference to telephone records he stated that it was probable that he spoke to his wife at 12.57pm on 23 May 2003 to advise his wife to arrange for Ms Dare’s employment to be terminated. He stated that at all times Ms Dare had been employed as a full time permanent employee.
Karen Hurley
Karen Hurley is the wife of the respondent. She was also an employee of his between December 2000 and 30 June 2003.
Mrs Hurley deposes that in May 2003 she worked part time for PGH due to family commitments. She was at the time pregnant. Ms Dare commenced employment with PGH on 28 April 2003 and Mrs Hurley instructed her as to her duties. This included instruction as to standard operating procedures. It included reference to the employment manual of PGH. It included instruction relating to the systemisation of the ordering of stationery.
Mrs Hurley recalls that Ms Dare was off work sick on Friday, 9 May 2003.
Mrs Hurley deposes as to her recollection of the conversation that took place at lunch on 13 May 2003. Her recollection accords with that of Mr Hurley. Annexed to her affidavit is a file note of what purports to be a contemporaneous record of that discussion.
Mrs Hurley recalls that Ms Dare was away from the workplace on the afternoon of 16 May 2003 for medical reasons.
Mrs Hurley deposes as to her recollection of the conversation between her, Mr Hurley and Ms Dare on 21 May 2003 concerning maternity leave. Annexed to her affidavit is what purports to be a contemporaneous note of that discussion.
Mrs Hurley deposes that on 22 May 2003 she was working from home and attempted to do a stationery order but was unable to open the necessary documents. She found that the documents were password protected. After staff had left the office for the day she went into the business office and tried to find the documents on the PGH server but could not find them. She deposes that she concluded that the documents had been deleted from the server on 22 May 2003. Mrs Hurley deposes as to her subsequent conversation with her husband about this.
Mrs Hurley deposes as to the events on 23 May 2003 culminating in the termination of Ms Dare’s employment. She also responds to Ms Dare’s affidavits.
Under cross-examination Mrs Hurley resisted attacks upon her credibility. She maintained that her file notes of the conversations on 13 May 2003 and 21 May 2003 were typed verbatim from handwritten records prepared contemporaneously. Mr Beckett showed Mrs Hurley the statement prepared by Ms Green about the conversation on 13 May 2003. Mrs Hurley said that she had not seen that document until the commencement of the present legal proceedings in the last month or so. She stated that personnel records were kept in a locked cabinet in the home office and that she had not seen the document on Ms Dare’s personnel file. She agreed that her file note of the conversation of 13 May 2003 was substantially the same as the statement prepared by Ms Green. She maintained that her recollection of the conversation was accurate and that her file note had not been created recently in order to bolster the respondent’s case.
In response to a question from me, Mrs Hurley said that she had put her file note on her own personnel file kept at home which was separate from the PGH personnel file relating to Ms Dare. Mr Beckett called for any personnel files or folders relating to Ms Dare. Only one file was produced on 20 June 2005. It contained both the typewritten statement of Ms Green and the two file notes of Mrs Hurley, as well as other documents. There were no handwritten notes by Mrs Hurley but there was a handwritten note by Ms Green, which was tendered: exhibit R4.
Mr Beckett asked Mrs Hurley about the personnel file that was produced, including Dianne Green’s handwritten notes of the discussion on 13 May 2003: exhibit R4. She admitted that this was available to her from April or May 2003 but said that she did not look at it prior to preparing her own file note about the meeting on 13 May 2003 and did not look at it when preparing her affidavit. She agreed that the file note included a sentence to the effect that Ms Green would “check entitlements and follow up”. Mrs Hurley said that she did not give any instruction to Ms Green to check Ms Dare’s maternity leave entitlements following the meeting on 13 May 2005. Mrs Hurley said that she did not see the handwritten note until about October 2004. She did not refer to it when preparing her own affidavit. She had not been expecting to receive any information from Ms Green about Ms Dare’s maternity leave entitlements.
Mr Beckett asked Mrs Hurley about the relative cost of replacing Ms Dare with a temporary employee whilst Ms Dare was on maternity leave and the cost of replacing her permanently. Mrs Hurley said that the disruption from Ms Dare taking maternity leave would have only been “minor” although she did not know how long Ms Dare was planning to take maternity leave. Mrs Hurley ventured the opinion that it would have been more expensive to replace Ms Dare permanently than to replace her temporarily. Mrs Hurley denied that Ms Dare had said on 13 May 2005 that she wanted three months off for maternity leave.
Mrs Hurley maintained that paragraph 17 of her affidavit was an accurate reflection of the order of the conversation at the meeting on 21 May 2003. She said that if her husband believed that the conversation occurred in a different order he was mistaken. Mrs Hurley said that she prepared her purported file note of the conversation on the evening of 21 May 2003. She said that she typed it on her home computer. She did not put it directly on Ms Dare’s personnel file but rather placed it in an accounts file in tray in her home office. Mrs Hurley denied showing the file note to Mr Hurley prior to Ms Dare’s employment being terminated. Mrs Hurley denied typing up her file note about the discussion on 13 May 2003 at the same time as her file note about the meeting on 21 May 2003. Mrs Hurley said that the meeting on 21 May 2005 was cordial and that she was not hostile. She could not recall having any concerns about Ms Dare’s work to that point.
Mr Beckett asked Mrs Hurley about the nota bene to her file note of the discussion on 21 May 2005. Mrs Hurley admitted that the nota bene reflected her annoyance at the time the note was prepared but said that her annoyance occurred after the meeting, not during it. In response to subsequent questions from me, Mrs Hurley said that the nota bene did not reflect anything said at the meeting but reflected her opinions based upon the facts then known to her or believed by her.
Mr Beckett asked Mrs Hurley about her work practice concerning backing up computer documents and about her activities on 22 May 2005. Mrs Hurley said that she periodically backed up documents on to a portable device and took them home. She did this on 21 May 2003 before the meeting. She worked at home between about 10.00am and 3.00pm on 22 May 2003. She found the two password protected stationery order documents on the backed up data on her portable device. She did not on that day seek to obtain the passwords for those documents and went on to do other work. She knew Ms Dare was in the office on that day. Mrs Hurley said that she did not contact Ms Dare in the office because she wanted to “check the system first”. Mrs Hurley confirmed that she went into the main business office after the staff had left for the day and attempted to locate the documents which had been password protected. She was unable to locate them where she expected to find them and a file search for them was unsuccessful. Mrs Hurley said that she also searched the hard drive on Ms Dare’s computer and did not find the documents. She reached the conclusion that the documents had been deleted from the system some time on 22 May 2003.
Mrs Hurley was asked questions about annexures C and D to her affidavit which are the stationery order documents. She said that the date of 30 June 2003 appearing on the bottom of these documents did not relate to the currency of the documents themselves but rather to the expected completion date of the documents. Mrs Hurley believed that the documents were the same or essentially the same as the ones that were password protected. She conceded that she was mistaken in her affidavit in referring to the documents as Excel spreadsheets. They are Word documents in table format.
Mrs Hurley denied suggestions that she obtained information about Ms Dare’s maternity leave entitlements before the meeting on 21 May 2003 and expressly denied speaking to Ms Green about it. She admitted that Ms Green regularly visited the home office. She denied the accuracy of Ms Dare’s account of what was said at that meeting.
As to the events on 23 May 2005 Mrs Hurley confirmed receiving an SMS message from Ms Dare and said that she accidentally replied to it twice. The text field was blank in her replies. Mrs Hurley said that she did not speak to Ms Dare on 23 May 2003 although she had attempted several times to contact her. She denied herself making any decision to terminate Ms Dare’s employment and said that it was the decision of her husband. She confirmed that the decision must have been communicated to her in her conversation with Mr Hurley at 12.57pm. Mrs Hurley confirmed that her phone records showed a further conversation with her husband at 7.54am that day but said that this related to other issues. She admitted that this conversation took place immediately after she received the SMS from Ms Dare and said that she had mentioned receipt of the SMS during this conversation. She and her husband then discussed other matters.
In response to questions from me Mrs Hurley agreed that she had made two calls to Elissa Scott on 22 May 2003 but said that these did not relate to Ms Dare. They related to other proposed temporary employees. Mrs Hurley also said that a long telephone call recorded between her and Ms Green on 22 May 2003 did not relate to Ms Dare but related to salary payment issues.
Under re-examination Mrs Hurley said that the issue of Ms Dare’s maternity leave was a minor one for the purposes of the meeting on 21 May 2003 because the business had several possible options to pursue. She also said that she did not work face to face with Ms Dare between 13 and 19 May 2003. She said she went into work on 22 May 2003 to search for the documents which had been password protected and then to clarify her impression that the documents had been deleted from the computer system. Mrs Hurley also identified standard operating procedures for the business and a bundle of documents setting out the procedures was tendered: exhibit R3. Mrs Hurley also said that she had asked Ms Dare to provide her home telephone number but Ms Dare advised that she was changing telephone numbers in consequence of her separation from her partner and advised that she would provide a home number later.
Submissions
I invited written submissions from the parties. Mr Beckett prepared written submissions which were filed on 1 July 2005. Mr Beckett, in his written submissions, confirms that Ms Dare relies upon the direct discrimination provisions of s.7(1) (pregnancy) and s.5(1) (sex) of the SDA. She also relies upon ss.14(2)(a), (c) or (d). He notes that Ms Dare also asserts a breach of contract by reason of her termination. Ms Dare alleges that there were express and implied terms of her contract that her employer act reasonably, providing her with an opportunity to reply to any allegations of misconduct or poor work performance. Ms Dare asserts that Mr Hurley terminated her employment without telling her of allegations against her and without allowing her to reply to the allegations. She was not given any notice and was not paid in lieu of notice.
Mr Beckett reviews the evidence in relation to both claims. In paragraphs 15-26 Mr Beckett submits as follows:
If the Court accepts that Mr Hurley said to her that she was terminated on the ground of her pregnancy than that falls neatly into s.7(1)(a) of the SDA. If, however, the Court finds instead that she was terminated because she would have to take maternity leave (and the Respondent would have to pay for a temporary replacement) then this matter falls within s.7(1)(b) as the taking of maternity leave is clearly a characteristic that generally appertains to pregnant women.
The question then arises was Ms Dare treated less favourably than a person who was not pregnant in the same circumstances or circumstances which are not materially different. The relevant comparator is a person who was acting in a similar role at PGH Environmental Planning in 2003, who was subject to the same contract and conditions as Ms Dare and who was not pregnant. It would be wrong to include in the relevant circumstances for the purpose of determining less favourable treatment the fact of the pregnancy or the characteristic of the pregnancy.
The Applicant’s primary argument is that she should not be compared to a comparator who wanted to take sick leave (or other long leave). That is because the taking of maternity leave is a characteristic that applies only to pregnant women. It would not be comparable circumstances with a person who took other sorts of leave because they are different sorts of leave. This is not a case where the pregnant woman was denied promotion where a comparison could be made with another person seeking promotion because promotion is not a characteristic that is imputed to or appertains generally to pregnant women.
There is well established authority that any use of the impugned discriminant with which to identify the characteristics of the comparator would “fatally frustrate the purposes of the Act”: IW v City of Perth (1997) 191 CLR 1 per Toohey J at 33, Gummow J at 40-41 and Kirby J at 67. The terms of s.66A of the Equal Opportunity Act 1984 (WA) considered in that case are for all relevant purposes identical to the terms of s.7 of the SDA.
Toohey J considered the difference between disability and a characteristic “that appertains generally to persons having the same impairment as the aggrieved person”.
... [T]here may be wrongful discrimination against the aggrieved person ‘on the ground of impairment’ where the ground is not the impairment itself but one or other of these characteristics.
...
[A] comparison must be made. This involves consideration of how the discriminator treats or would treat a person who does not have ‘such an impairment’. In making the comparison the characteristics [appertaining generally to persons with an impairment] are to be ignored. ... Any other approach would render the Act ineffective.” (emphasis added; at 34)
See also Mooney v Commissioner of Police (No 2) [2003] NSWADT 107 at [61-64] upheld on appeal. This is to be distinguished with the position in Purvis v NSW (2003) 202 ALR 133 where the characteristic (violence) was equally able to be exhibited by disabled and non-disabled students: see [223-225]. A person who was not pregnant would not seek maternity leave.
Turning to the comparison, a person who was not pregnant and was in the same circumstances as Ms Dare would not have been terminated because the reason for the termination (taking of maternity leave) would not exist.
In the alternative and on the basis that the above argument is rejected the Applicant is still able to succeed as there was also evidence that a person in the same circumstances as Ms Dare seeking (sick) leave in the order of 1-2 months would have been treated with “compassion”. That is, the Respondent was sufficiently flexible to allow such leave where it was medically necessary. Mr Hurley agreed with this. On Ms Dare’s evidence no such flexibility was shown with respect to Ms Dare and she was treated less favourably.
If the Court finds the termination occurred on the 21 May 2003 then the discrimination is made unlawful by s.14(2)(c).
If the termination occurred on the 23 May 2003 and fell within s.7(1) then s.14(2)(c) still has application. It is open for the Court to find that on that day as there was no good or valid reason for her dismissal the only reasonable conclusion is that she was dismissed on the ground of her pregnancy. The reasons put forward by the Respondent for the dismissal are considered in the next section.
In addition, if the Court finds the she was offered a temporary position on 21 May 2003 on the ground of her pregnancy then that treatment of her falls into s.14(2)(a) and (d).
There should be a finding of unlawful pregnancy discrimination.
In relation to the contract claim Mr Beckett submits as follows in paragraphs 27-39 of his written submissions:
The contract claim is made in the alternative to the pregnancy discrimination claim in the associated jurisdiction of the Court.[2]
It was an express and an implied term of the contract that Ms Dare would not be unfairly dismissed. It is clear in the terms of the contract that there were terms which protected an employee against wrongful dismissal:
a)A clear notice period or payment in lieu of notice (letter of appointment 15 April 2003);
b)Verbal warnings were to be given for “performance problems”, the purpose being to “discuss the nature of the problem” (p17);
c)That may be followed by a written warning which also provided the employee with an opportunity to sign and add comments to the warning, “if the problem persists after this warning instant dismissal may occur” (p17);
d)Termination of employment (only) “without notice if you are guilty of serious misconduct”;
e)The employee will be subject to an exit interview (p13).
[2] This is incorrect. The contract claim is brought in the Court’s accrued jurisdiction.
It is clear that these procedures were completely ignored on the 23 May 2003. The concerns of the employer were three fold:
a)Pass-wording of documents contrary to Employee Manual;
b)Deleting documents;
c)Not advising employer of sick leave contrary to Employee Manual.
Ms Dare admitted pass-wording some (minor) documents although she did not admit to pass-wording the so-called stationery documents. The matter was clearly a minor issue and Mrs Hurley agreed it was not at the forefront of her mind on 23 May 2003. If the employer had asked for the password Ms Dare would have provided it (as she did later to Ms Scott) and the issue would have been solved immediately. Mr Hurley agreed with this.
Although Ms Hurley found pass-worded documents on 22 May 2003 she did nothing to contact Ms Dare to obtain the passwords on 22 May 2003 when she was at work. It was obviously not time critical. In addition Mrs Hurley only discovered the passwords on a back-up taken for documents created before the meeting on 21 May 2003. Accordingly, any such pass-wording cannot have occurred in reaction to the meeting on 21 May 2003.
There was no evidence that Ms Dare deleted any of the documents alleged by Mr and Mrs Hurley. Mrs Hurley came to that assumption on the basis that she could not find the documents on the server. She agreed that she had not seen Ms Dare with the documents since 6 May 2003 and a number of employees had access to the server. There was no evidence that Ms Dare had “maliciously” deleted documents as assumed by Mr and Mrs Hurley. In any event – what was the motive for the alleged deletion? According to Mrs Hurley the meeting on 21 May 2003 was cordial and Ms Dare was not angry.
Mrs Hurley never at any stage asked Ms Dare about the documents. Importantly, the issue was not raised by Mrs Hurley with Ms Scott.
Before 8.00am on Friday, 23 May 2003 Ms Dare sent an SMS message to her supervisor and wife of her employer to say she was sick. The SMS was sent at the appropriate time under the contract – one hour before work started. The contract states that the “managing director” has to be “contacted” with respect to sick leave. Contact was clearly made via his wife who called him at 7.54am. It was clearly not a major breach to have sent an SMS as opposed to phoning the managing director. Ms Dare in any event was new and did not have his mobile number. She felt unable to speak on the telephone and turned it off.
Mr and Mrs Hurley did not contact Ms Dare at home on 23 May 2003 despite having her address. Ms Scott was not asked to raise her employer’s concerns with her prior to dismissal. Instead Mr Hurley determined to terminate her employment forthwith despite there being no good reason why the allegations could not be put to her later that day or on the following Monday. Ms Hurley asked their agent Ms Scott to communicate the termination to Ms Dare which she did. The only telephone call received by Ms Dare on 23 May 2003 was to tell her she was sacked. That call was received at about 12 noon when Ms Dare’s phone was obviously back on.
The authorities on whether the conduct of employees justifies dismissal are clear. Where there is no evidence of defiance by an employee a single manifestation of incompetence is unlikely to justify dismissal unless the consequences of the incompetence are severe: Elcom v Electrical Trades Union (1983) 5 IR 267; Rankin v Marine Power (2001) 107 IR 129. Even where misconduct is established an employer needs multiple occasions to be able to dismiss unless there is dishonesty or gross breach of trust: Concut v Worrell (2000) 75 ALJR 312; BGC v Phippard (2002) 115 IR 430.
Notwithstanding the procedural provisions contained in the contract the employer relies on an apparent “absolute discretion, to use any of the disciplinary steps described below”. There is, at common law, an implied term of trust and confidence in every employment contract: see Johnstone v Bloomsbury Health Authority [1992] QB 333; Thomson v Orica (2002) 116 IR 186 at 224. Where a power is expressly conferred on the employer by the contract of employment the principle requires the employer to exercise it reasonably: Burazin v Blacktown City Guardian (1996) 142 ALR 144 at 151.50 and Johnstone.
In this case the employer did not exercise the procedures available under the contract to inform the employee of the allegations against her or to give her an opportunity to reply to them. In addition, the allegations fell well short of the common law meaning of the word misconduct and, in fact, there was no evidence of any major breach at all. This was not a case where there was theft or major dishonesty. By not asking Ms Dare about the three matters and terminating the contract of employment the employer did not act reasonably, dismissing her and thereby breached the contract.
The Court should find that the Applicant’s contract of employment was breached by the Respondent failing to give Ms Dare an opportunity to reply to the charges, and wrongfully terminating her contract when there was no basis for a finding of misconduct.
As to damages, Mr Beckett submits that Ms Dare should receive an award of general damages for non economic loss in the range of $3,000 to $4,000. He submits further that Ms Dare should receive damages for economic loss in respect of lost income for the period from her dismissal until the time she left work prior to her confinement, less the sum of $6,506 that she earned from other employment over that period. As to damages in relation to the contract claim, Mr Beckett makes the following submissions in paragraphs 48-50 of his written submissions:
The measure of damages for the contract claim is different but the result is the same. The measure is the position Ms Dare would have been in if the contract had not been breached by her employer and it had been performed: Commonwealth v Amann Aviation (1991) 174 CLR 64. There is every reason to think that the contract would have continued until the time when she ceased employment to give birth and look after her baby (28 November 2003). This accords with the decision in Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 at 33 which held that were it not for the unfair dismissal the employee would have remained in the position indefinitely. Of course, weighed against this is the possibility that the contract may have been lawfully terminated: Wheeler v Phillip Morris (1989) 97 ALR 282 at 311.
The Applicant was terminated prior to the elapse of the 3 month probationary period. The effect of a “probationary period” on a contract of employment depends on the nature of the clause in the contract, the intention of the parties and the whole of the agreement. Here there was no indication that the contract would end after 3 months and would have to be reinstated. The provision in the contract was to the effect that the employee’s performance would be assessed after 3 months. At most it was that the employer could terminate for poor performance having gone through the procedures set out in the employment contract relating to notice and procedural fairness: see NLC v Hansen [2000] NTCA 1; Creighton and Stewart Labour Law (4th Ed) p 418. Mr Hurley agreed this was the basis upon which the probationary clause operated.
If such argument is rejected then Ms Dare clearly lost the chance to continue in her employment for that period: Malec v Hutton (1990) 169 CLR 638. Given there was no problem with her performance prior to 23 May 2003 (as agreed by Mr Hurley) her chance of remaining in employment with PGH was very high. Allowing for contingencies and the possibility of lawful termination under the contract Ms Dare had a chance of remaining in her employment with the Respondent of about 80%.
Mr Robinson prepared written submissions that were filed on 12 July 2005. Mr Robinson submits that the Court should find that:
a)Ms Dare was not discriminated against by Mr Hurley such as would give rise to relief pursuant to the SDA based on the direct discrimination claim, either on the grounds of sex or pregnancy or potential pregnancy; and
b)Ms Dare is not entitled to relief in the accrued jurisdiction of the Court for breach of contract.
Mr Robinson further submits that Ms Dare has not adduced any evidence to suggest that any alleged discrimination is not ordinarily encompassed within s.7(1) of the Act and accordingly no claim arises under s.5(1) of the SDA[3].
[3] see Lockhart J, Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 118 ALR 80
In relation to the contract claim Mr Robinson submits that the terms of the employment contract are limited to the letter of offer of employment dated 15 April 2003 and that there is no basis in fact or in law for implying any of the terms of contract proposed by Ms Dare.
Mr Robinson submits that the following facts are uncontested:
i)In or about April and May 2003 the Respondent operated a small town planning business in Penrith. As part of that business the Respondent’s held accreditation with Standards Australia International. This accreditation required the Respondent to have a significant number of procedures in place for the operation of the Respondent’s business, including but not limited to stationary orders – see Exhibit R3 Standard Operating Procedure 031.
ii)In early April 2003 the Applicant was introduced to the Respondent’s business by Elissa Scott Recruitment.
iii)On 15 April 2003 the Applicant signed a four (4) page written employment contract on 15 April 2003 after reading the terms and conditions (“Contract Letter”);
iv)The Contract Letter expressly states:
a)“your continued employment is subject to satisfactory completion of a three (3) month probationary period” – page 1;
b)“You are required at all times to adhere to company policies and procedures relating to all aspects of your employment” - page 2; and
c)“PGH reserves the right to terminate your employment without notice if you are guilty of serious misconduct, such as dishonesty” – page 3
v)The Contract Letter does not contain any express terms and conditions imposing any obligation on the Respondent to:
·advise the Applicant of any alleged wrong doing before dismissing the Applicant; or
·provide the Applicant with an opportunity to respond to any alleged wrong doing before dismissing the Applicant; or
·provide the Applicant with a verbal or written warning before dismissing the Applicant; or
·dismiss the Applicant in a certain manner and medium; or
·only dismiss the Applicant for cause.
vi)It is uncontested evidence that the Applicant was required to perform the following duties:
·Ensure the adherence to all Standard Operation Procedures;
·Use computers to compile information to prepare reports, business correspondence and other materials;
·Proof read documentation and ensure that uniform correspondence procedures and style practices are maintained;
·Take dictation by machine and transcribe notes on computer or transcribe voice recordings;
·Compose and type routine correspondence;
·Order and maintain supplies, arrange for equipment maintenance and make sure that cleanliness of the office is maintained at all times;
·Supervise the maintenance of all filing systems including databases and spreadsheet files;
·Develop resources which can create timely and efficient workflow and maximise office productivity as directed by Management from time to time.
(P.Hurley 18/5/04, para 2)
vii)On 28 April 2003 the Applicant commenced employment with the Respondent. On the first day the Applicant was shown around the office and provided with a PGH Employee Manual (“Employee Manual”). The Applicant was also shown the stationary cupboard.
viii)The Employee Manual expressly detailed policy for reporting in sick, contact details for the Respondent, prohibitions on password protecting documents and also disciplinary action, including dismissal for employee misconduct.
ix)On 13 May 2003 a staff lunch occurred in a restaurant in Penrith. During this meeting the Applicant advised Mrs Karen Hurley and Ms Dianne Green that she was pregnant. A few minutes later the Respondent entered the room and was also advised by the Applicant that she was pregnant.
x)On 20 May 2003 the Respondent paid Elissa Scott Recruitment the introducing recruitment agent a placement fee of $5,750.00 on account of the hiring of the Applicant.
xi)On 20 May 2003 the Applicant was advised by the Respondent that a meeting was to occur the following afternoon after work.
xii)On the afternoon of 21 May 2003 a meeting occurred between the Respondent, Mrs Hurley and the Applicant.
xiii)On 22 May 2003 the Applicant attended work as normal.
xiv)On 23 May 2003 [Ms Dare] did not attend work and sent a text message to Mrs Hurley and not the Respondent.
xv)On 23 May 2003 the Respondent decided to dismiss the Applicant;
xvi)On 23 May 2003 the Applicant was advised of the termination of her employment by Ms Elissa Scott of Elissa Scott Recruitment.
xvii)On or about 23 May 2003 the Applicant provided passwords for computer generated documents that she had password protected during her employment with the Respondent.
xviii)It is uncontested evidence (in that Mrs Hurley was not cross examined on this aspect of her evidence) that on 26 May 2003 Ms Leigh Boyd of Elissa Scott Recruitment provided Mrs Hurley with three passwords that were a combination of letters and numbers. Two of these passwords opened up the two Stationary Order forms, in Word format, for the stationers WC Penfolds & Officeworks.
Mr Robinson invites the Court to resolve the evidentiary conflict in relation to the following events:
i)the conversations on 13 May 2003 between Mrs Karen Hurley, Ms Dianne Green and the Applicant, and the Respondent and the Applicant;
ii)the conversation on 21 May 2003 between the Respondent, Mrs Hurley and the Applicant;
iii)whether the Applicant ever assisted in the creation of two Word documents being stationary order forms;
iv)whether the Applicant was ever directed to password protect computer generated documents and provided those passwords to Mrs Hurley or Mr Stephen Davies;
v)whether on 22 May 2003 the Applicant deleted two Word documents being stationary order forms.
Mr Robinson submits in surveying the evidence in relation to each of these matters that the evidence of the respondent’s witnesses should be preferred.
On the question of an appropriate comparator Mr Robinson submits that Ms Dare should be compared to a comparator who wanted to take sick leave or other leave. He submits that the proper comparator, with respect to Ms Dare’s claim relating to the alleged events of 21 May 2003, would be an employee seeking to take extended sick leave, such as an employee who was to undertake an operation. He submits that Ms Dare was not treated any less favourably than that comparator would have been in the same or materially similar circumstances. In relation to the events on 23 May 2003 Mr Robinson submits that Mr Hurley would not have provided a comparable employee in similar circumstances with procedural fairness: see Purvis v State of New South Wales (2003) 202 ALR 133. He submits that Ms Dare has failed to adduce any evidence that a comparator would have received procedural fairness in the relevant circumstances.
Mr Robinson further submits as follows:
The Respondent denies that he had any obligation to provide the Applicant with procedural fairness on the termination of her employment. The Respondent says that the Contract Letter does not contain any express or implied obligations, nor are any such obligations imposed by any relevant statute, on the Respondent to provide the procedural fairness alleged by the Applicant. The common law does not impose an obligation to provide procedural fairness before deciding to dismiss an employee (see Intico (Vic) Pty Ltd & Ors v Walmsley [2004] VSCA 90 (21 May 2004)). In particular Buchanan JA states at paragraph 17:
“The rules of natural justice must be observed by those making judicial and administrative decisions which affect the rights, interests, livelihood and reasonable expectations of others. A person who holds an office from which he can only be dismissed for cause cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation. There is no like obligation which must be observed by an employer who dismisses an employee. The employer is exercising a contractual right in dismissing an employee for misconduct. The employer is not bound to act reasonably, or to give reasons or accord the employee an opportunity to be heard. The question whether the employer is contractually entitled to dismiss his employee depends upon whether the facts emerging at trial demonstrate breach of contract; it does not depend on whether the employer has heard the employee in his own defence. As Lord Reid said in Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578 at 1581]:
"At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract."
[respondent’s emphasis retained]
The Respondent says that it has not treated the Applicant less favourably by not providing the alleged procedural fairness because such obligations would not have been included in the terms and conditions of a comparator’s contract of employment, nor would they be implied by law.
If this Court finds that the Employee Manual formed part of the terms and conditions of employment, the Respondent says that there is no specific requirement, as a matter of course, that provides the elements of procedural fairness alleged to have been denied by the Applicant. The Respondent reserved the right, under the terms of the Employee Manual, to apply the policy as he saw fit. The Respondent denies that he is required to act reasonably in the exercise of that discretion. The authorities on this point that have been relied on the Applicant do not relate to an employer acting reasonably with regard to procedural fairness on the termination of employment. The Respondent is not required, even under the alleged duty to that “the employer will not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of trust and confidence between the parties” to exercise such a discretion reasonably with regard to the termination of employment. In this regard see Johnson v Unisys Limited [2001]UKHL 13; [2001] 2 All ER 801; [2001] 2 WLR 1076 (22 March 2001) - (in contrast to Malik and Mahmud v BCCI (1998) AC 21), Eastwood & Anor v Magnox Electric Plc, McCabe v Cornwall County Council & Ors [2004] UKHL 35 (15 July 2004), Aldersea & Ors v Public Transport Corporation [2001] VSC 169 (28 May 2001), Intico (Vic) Pty Ltd & Ors v Walmsley [2004] VSCA 90 (21 May 2004), and Heptonstall v Gaskin & Ors (No 2) [2005] NSWSC 30 (9 February 2005).
Further, if this Court were to determine that the Respondent, in order to not treat the Applicant less favourably than a comparator, ought to have provided the Applicant with procedural fairness, as alleged, then this Honourable Court would effectively be determining that the Applicant has not been provided with the benefit of “procedural fairness” in such circumstances where the common law does not ordinary imply such a benefit in the employment relationship. The SDA does not operate in this manner to confer an advantage. Rather it is designed to obviate disadvantage based on impermissible discriminatory grounds.
Mr Hurley denies any breach of contract. Mr Robinson further submits on that issue:
The Respondent says that the Contract is limited to the Contract Letter. The Respondent, in re-examination, denied that the Employee Manual was binding on him, however the Applicant was contractually bound to abide by all of the Respondent’s policies. The Applicant gave evidence that she read and understood the Contract Letter prior to signing.
The Applicant did not receive the Employee Manual until her first day of employment, and it is common ground that the Applicant did not sign the Employee Manual. The contents of the Employee Manual was not in the mind of the parties when the contract was entered. It was a term of the contract that the Applicant would abide by policies. No reciprocal obligation applied, as the Respondent gave evidence of this.
The contents of the Employee Manual ought not be implied into the contract as firstly, it is not reasonable and equitable to do so, secondly it is not necessary to give business efficacy to the contract, thirdly the content of the Employee Manual is not so obvious that it goes without saying, and fourthly, parts of the Employee Manual would conflict with the express terms of the Contract: see Byrne v Australian Airlines Ltd (1995) 185 CLR 410. The Contract Letter is an expansive document that expressly addresses termination of employment. The Court ought not imply a term inconsistent with the bargain struck between the parties.
It is common ground that the Contract contained an express 3 month probationary period. The Applicant’s ongoing employment was subject to satisfactory completion of the probationary period. The Respondent, and the Respondent alone, was to be satisfied as to the Applicant’s competencies and attitude in order for the Applicant’s employment to continue beyond the 3 month probationary period. The purpose of a probationary period has been discussed in numerous authorities: see Re Atchin and South Newcastle Leagues Club Limited [1977] AR (NSW) 236, Re Tulley (1954) AR 369, Australian Liquor Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Heaton Enterprises Pty Ltd [1997] WAIRComm 56 (3 April 1997), New South Wales Teachers Federation and the Education Commission of New South Wales (Industrial Relations Commission of NSW Application No.969 of 1984). In Re Tulley (1954) AR 369 at 371 Street CJ said:
“The Scheme of the Act is clear. An intending applicant for a position in the Public Service is required to undergo a fixed period of testing or trial for the purpose of ascertaining whether he has the necessary qualifications for a permanent appointment and the word “probation” itself involves the idea of something in the nature of a trial and experiment with a view to determining whether the Applicant is to be appointed.”
In a separate judgment Brereton J said:
“He must be taken to have applied for, and accepted, his probationary appointment, upon the terms of that section. In accepting employment on probation he must be taken to have accepted the position that if, after his period of probation, the Public Service Board, after enquiry so recommended, his appointment would be annulled and that whether it was to be confirmed or annulled would depend wholly and solely on the view formed by the Board. He must be taken, in accepting the appointment, to have consented to this state of affairs; to have consented to the annulment of his appointment if the employer found him unsatisfactory.”
The Applicant’s reference to the authority of NLC v Hansen [2000] NTCA 1 ought not be followed. That case can be distinguished in that it centred on the dismissal of a probationary employee for performance failings in circumstances where there were clearly defined and applicable probationary employment assessment guidelines. The authorities of Re Atchin and Re Tully ought to be followed.
The Respondent had a clear policy against the password protection of documents on the computer system. Evidence has been lead by all four of the Respondent’s witnesses as to the prohibition on pass wording documents. The Applicant has admitted, very inconsistently, to pass wording more than one document (see para 2.7 KDare3-7/5/05) yet on cross-examination claimed that the pass wording was limited to one document. In any event that Applicant has admitted to preventing the Respondent at all times to access his own business documentation.
The Respondent maintains that it had a valid reason to terminate the Applicant’s employment, being only less than 4 weeks into the position. In this regard the Respondent reiterates the contents of paragraph 20 above [of the submissions].
The Respondent maintains that the Applicant’s employment was justifiably terminated on account of her malicious attack on the Respondent’s business, in conjunction with breach of a number of policies. The Applicant disregarded the obligations in her job that specifically entailed:
·Ensuring the adherence to all Standard Operation Procedures; and
·Supervising the maintenance of all filing systems including databases and spreadsheet files.
The deliberate destruction of business intellectual property is not a minor matter or inconvenience, especially in a highly systematised business. The action struck at the heart of the trust and confidence between an employer and employee, such that the employee could not be trusted to respect and maintain the employer’s property. The Applicant’s actions showed an intention to damage the Respondent’s business and potentially jeopardise the SAI accreditation, all within less than four weeks employment. See Laws v London Chronicle (Indicator Newspaper) Ltd [1952] 2All ER 285 at 287 and 289.
The Respondent draws the Court attention to the “unfair dismissal” decisions of the Industrial Relations Commission of NSW in Williams v Pigment Dispersions Pty Ltd [2004] NSWIRC 1022 (28 April 2004) and the Australian Industrial Relations Commission in Azzodpardi v Accredited Distributors Pty Ltd (U No. 33330 of 1998) (AIRC 22 March 1999). In the first case, the Industrial Relations Commission of NSW found that an employee was not unfairly dismissed after he threatened to sabotage company equipment. In the second case, the Australian Industrial Relations Commission found that an employee was not unfairly dismissed after he destroyed employer equipment in throwing a packet of tic-tacs against a wall and also break the outer of a Prima Juices in half by splitting it on the edge of a pallet.
The Respondent reiterates its comments above at paragraph 25 as to position of the common law that prior to the termination of employment an employer is not bound to act reasonably, or to give reasons or accord the employee an opportunity to be heard see Intico (Vic) Pty Ltd & Ors v Walmsley [2004] VSCA 90 (21 May 2004). Accordingly, the Respondent has acted consistent with his express contractual obligations.
On the question of the assessment of any damages, Mr Robinson submits that Ms Dare should not receive damages for economic loss as her employment was terminated with cause on 23 May 2003 and she was paid up to that date. He submits that any award of general damages should be nominal as Ms Dare has not adduced evidence of any particular distress or hurt. In the event that the Court finds that Ms Dare was discriminated against and that she should receive damages for economic loss extending beyond 23 May 2003, Mr Robinson submits that those damages should be limited to the amount that Ms Dare would have earned up until the end of the three month probationary period to which she was subject, less three weeks wages. Mr Robinson submits that Ms Dare, by her own admission, did not look for work for three weeks immediately following the termination of her employment and so failed to mitigate her loss. Mr Robinson submits further as follows:
The Respondent maintains that the Applicant’s ongoing employment was subject to the Respondent being satisfied. The probationary period is a trial period and an extension of the interview process see: in particular Re Atchin and South Newcastle Leagues Club Limited [1977] AR (NSW) 236, Re Tulley (1954) AR 369, New South Wales Teachers Federation and the Education Commission of New South Wales (Industrial Relations Commission of NSW Application No.969 of 1984) and as such the Applicant’s employment could have been terminated at any time within the three month probationary period. The determination on whether the employment would continue is to be made only by the Respondent, and is not subject to an objective assessment see: Brereton J in Re Atchin v South Newcastle Leagues Club Limited [1977] AR (NSW) 236 as cited above. The Respondent did not agree with the proposition that there were no problems with the Applicant’s work performance prior to 23 May 2003. The Respondent indicated that he had observed behavioural or conduct problems with the Applicant in addition to the Applicant, in only four weeks, having password protected and deleted business documentation, in addition to not following policy, in a highly systematised business. The 80% chance as stated by the Applicant at paragraph 50 of her submissions, has no foundation. No loss of opportunity authority has application to the assessment of damages where ongoing employment was subject to a decision by a third party. The Court cannot place itself in the Respondent’s shoes to make this determination.
The effect of these submissions, if accepted, would produce a damages outcome for economic loss of no more than $5,030.76. In relation to the contract claim, Mr Robinson submits that damages should be restricted to the period of notice required under the contract, being the equivalent of two weeks’ wages. He notes that where employment is terminable by notice, damages under contract will be the equivalent to wages for the period of proper notice: see Cockburn v Alexander (1848) 136 ER 1459 at [1468]. Mr Robinson further notes that general damages are not available for a breach of contract: see Addis v Gramaphone Co [1909] AC 488[4].
[4] But see Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 which casts some doubt on that authority in Australia in relation to employment contracts
Mr Beckett prepared written submissions in reply which were filed on 19 July 2005. In his submissions in reply, Mr Beckett makes the following relevant points:
a)both parties were bound by the terms of the employee manual;
b)the issue of the stationery order forms was only a minor one according to Mrs Hurley and not uppermost in her mind on 23 May 2003. On Mrs Hurley’s evidence the documents were probably password protected when they were created some eight days after Ms Dare had started work; and
c)he agrees that at common law procedural fairness prior to dismissal is not required but he relies upon the asserted implied and express terms of contract, together with the common law obligation of trust and confidence.
The legislation
Sections 5(1), 7(1) and 14(2) of the SDA provide as follows:
Section 5(1)
(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.
Section 7(1)
(1)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, 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.
Section 14(2)
(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:
(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.
Reasoning
I accept Mr Robinson’s submissions identifying the undisputed facts and I also accept his submissions as to five key areas of factual dispute that need to be resolved. The first of those concerns the conversation at the lunch on 13 May 2003 between Mrs Hurley, Ms Dare, Mr Hurley and Ms Dianne Green. Ms Dare’s account of what was said on that occasion contrasts with the evidence of Mr and Mrs Hurley and Ms Green. Mrs Hurley and Ms Green both claim to have prepared contemporaneous notes of the discussion. Ms Dare prepared some notes some time later which refer to the discussion. The notes prepared by Mrs Hurley and Ms Green are remarkable for their similarity.
On the following morning, when Ms Dare sent an SMS to Mrs Hurley advising that she was sick and would not be coming into work, she unwittingly provided a further pretext for action against her. The instructions given to Ms Dare included an instruction that if she was ill and required sick leave, she was to inform Mr Hurley (and by implication not Mrs Hurley). There was no instruction as to whether Ms Dare was to inform Mr Hurley orally or in writing[5].
[5] see page 9 of exhibit A2
The ostensible reasons for the decision taken by Mr Hurley at around lunchtime on 23 May 2003 to dismiss Ms Dare were that:
a)she had password protected two documents of significance to the business in breach of policy;
b)she had failed to comply with the required procedure for notification of sick leave on 23 May 2003; and
c)she had maliciously attacked the business by deleting the two password protected documents from the computer system.
The third reason was an assumption which may well have been incorrect. Ms Dare was not given the opportunity to advise whether the assumption was correct or not. The employee manual, at page 13, states that the employer was entitled to terminate Ms Dare’s employment during her first year of employment on two weeks notice or without notice if she was “guilty of serious misconduct, such as dishonesty”. The letter of appointment contains the same terms[6]. The employee manual also contains detailed disciplinary provisions involving a requirement of oral and written warnings[7] and stipulates that all employees were expected to participate in a brief exit interview with Mr Hurley. No warnings were given and no exit interview was conducted with Ms Dare, which would have been opportunities for her to explain herself. The giving of written notice of sickness to Mrs Hurley rather than oral or written notice to Mr Hurley of sickness on 23 May 2003 could hardly qualify as serious misconduct. The malicious destruction of business records would probably qualify as serious misconduct if it was established but it had not been established. Mrs Hurley simply leapt to that conclusion as it was convenient to do so. The password protection of documents might be considered misconduct but could not be considered serious as the problem would be overcome once the password protection was removed or the passwords provided. The passwords were provided upon request on 23 May 2003. I find that, on the basis of the available evidence, Ms Dare was not guilty of serious misconduct at the time of her dismissal.
[6] see page 3 of exhibit A3
[7] see page 17 of exhibit A2
Mr Robinson devotes substantial space in his written submissions to the issue of procedural fairness. The dismissal of Ms Dare was procedurally unfair. She was given no warning and was given no opportunity to explain herself. The asserted justification for her dismissal was insufficient or unsubstantiated. As Mr Robinson points out in his written submissions, Mr Hurley denies that he had any obligation to provide Ms Dare with procedural fairness on the termination of her employment. Whether or not that is so, the relevant question (for the purposes of the SDA) is not whether Mr Hurley was entitled to deny Ms Dare fairness but rather whether the comparative employee in the same or similar circumstances would have been denied fairness.
The file notes prepared by Mrs Hurley about the conversations on 13 May 2003 and 21 May 2003 show that she was concerned about Ms Dare’s request for maternity leave. The request was inconvenient because Mrs Hurley was herself pregnant and needed to be away from the business for a time as a result. Ms Dare was two and a half months pregnant when she revealed her pregnancy, which meant that she was pregnant before she commenced her employment with Mr Hurley. She did not reveal her pregnancy until after she commenced that employment. It was no accident that Ms Green noted in her contemporaneous handwritten file note that Ms Dare had revealed that she was two and half months pregnant. The concern was that Ms Dare had been less than frank with her employer when she took the job. Mrs Hurley surreptitiously looked for evidence to use against Ms Dare on the evening of 22 May 2003. Mr Hurley seized the opportunity to dismiss Ms Dare on being told by his wife of her belief that Ms Dare had intentionally deleted the two stationery order forms and on being told by his wife that Ms Dare had reported sick to her by SMS and was then uncontactable.
Mr Hurley had produced an employee manual as a guide to the way employees were expected to work and would be treated. His business had taken the trouble to become a quality endorsed business by Standards Australia. Mr Hurley placed great store on following procedures. In the circumstances, it is reasonable to expect that the hypothetical comparator would have been treated in accordance with those procedures. Mr Hurley asserts the right to observe or ignore the procedures at will, but if that is right, the quality endorsement of the business would be a farce.
The employee manual defines misconduct, including serious misconduct, and establishes a process for dealing with it. The process involved oral and written warnings for unsatisfactory performance (including misconduct) prior to dismissal. The comparator would have received only an oral warning for a first and single incident of password protecting documents without authority and for a first and single incident of using an incorrect procedure to advise of sickness. The comparator would probably have received a written warning if, hypothetically, he or she had been found to have deleted documents from the computer system. He or she would not have been summarily dismissed on the basis of guesswork. Even if there had been a dismissal, there would have been an exit interview.
An employee who required extended unpaid sick leave could expect, according to the procedures, to be treated “compassionately”. Employees could also expect to receive unpaid leave for other worthwhile purposes, including jury duty and military leave[8]. The hypothetical comparator would not have been dismissed for requesting a period of unpaid leave. Neither would the comparator have been dismissed for giving written notice of sickness to Mrs Hurley rather than oral notice to Mr Hurley. The hypothetical comparator would not have been dismissed for misconduct without a warning and, even in the unlikely event of a dismissal, could have expected notice of termination on the basis that the conduct was not “serious” misconduct. The hypothetical comparator could have expected an opportunity to explain themselves rather than be dismissed on suspicion of malicious conduct that was unproven but merely assumed. Ms Dare was dismissed without notice and she was given no pay in lieu of notice. She was assumed to have acted maliciously without proof and without an opportunity to explain herself. She was denied an exit interview. She was dismissed in circumstances where the hypothetical comparator would not have been dismissed at all.
[8] see page 11 of the procedures
I find that Ms Dare was treated less favourably than the hypothetical comparator would have been treated in circumstances that were the same or not materially different.
I find that Mr Hurley acted unlawfully in dismissing Ms Dare on 23 May 2003 in breach of s.14(2)(c) of the SDA. The real reason for that dismissal was Ms Dare’s pregnancy and the consequential request for maternity leave. The password protection of the two stationery order forms and the SMS message to Mrs Hurley on 23 May 2003 were merely convenient pretexts. The asserted malicious attack upon the business was unproven and may have been a figment of Mrs Hurley’s imagination. Mrs Hurley left herself open to jump to that conclusion when she went looking for information to use against Ms Dare because of her hostility over Ms Dare’s request for maternity leave. In dismissing Ms Dare, Mr Hurley treated Ms Dare less favourably than the hypothetical comparator because of her need for maternity leave, a characteristic that appertains to women who are pregnant.
The breach of contract claim
Direct pregnancy discrimination having been established, it is strictly unnecessary to consider the breach of contract claim unless it would lead to a different damages outcome. Different damages outcomes are possible so I will consider it. The terms of the contract of employment are contained in the letter of appointment to Ms Dare from Mr Hurley dated 15 April 2003[9]. It was a term of the contract that Ms Dare’s employment could be terminated during the first year of her employment on two weeks notice or by payment of two weeks salary in lieu of notice. Ms Dare could be terminated without notice if she was “guilty” of serious misconduct, such as dishonesty. I have already found that Ms Dare was not guilty of serious misconduct. It follows that there was no contractual basis for her dismissal. The dismissal for serious misconduct was therefore a breach of the contract.
[9] exhibit A3
Even if I am wrong in that conclusion, under the contract, Ms Dare could not be dismissed summarily unless her “guilt” was established. I accept that that the common law does not require procedural fairness before an employee can be dismissed for misconduct. But under this contract there needed to be some process for determining “guilt”. The contract does not specify how “guilt” is to be determined. The question then is whether a process can be implied. In Byrne v Australian Airlines the High Court dealt with the general principles governing implied terms of contract. The implication must be reasonable and equitable. It must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it. It must be so obvious that it goes without saying. It must be capable of clear expression, and it must not contradict any express term of the contract.
In order to give business efficacy to the summary dismissal term it is necessary to imply a process for determining whether Ms Dare was “guilty” or not. Her guilt could not be simply assumed. The summary dismissal term of the contract could not operate in the absence of a process for determining whether it had been enlivened. The need for a process is so obvious that it goes without saying. There are only two ways that guilt or innocence could be determined: either by a reliable determination by some third party; or by a reliable determination by the employer after hearing from the employee and anyone else able to give relevant information. That is a simple and clear expression that does not contradict any express term of the contract. That is the term that should be implied in the contract. The dismissal of Ms Dare for misconduct on 23 May 2003 summarily and without any process having been engaged in to determine her guilt or innocence was not only unfair, it was a breach of the employment contract.
It was also a term of the contract of employment that Ms Dare must at all times adhere to “company policies and procedures” relating to all aspects of her employment. That term assumes that there were in existence at the time company policies and procedures that needed to be adhered to. Ms Dare did not know when she accepted the terms of the contract what those policies and procedures were. They were, relevantly, set out in the employee manual[10]. Ms Dare was given a copy of the manual and asked to sign it to verify that she had read and understood the procedures. She did not sign it but that was not necessary in order to incorporate the procedures into the employment contract. Her signature would have been evidence that she had read and understood the policies and procedures in the event of an asserted breach.
[10] exhibit A2
It was not an express term of the contract that Mr Hurley would adhere to the same policies and procedures but in order to give business efficacy to the agreement such a term must be implied. That is because the employee manual imposes mutual obligations. The obligations would be unworkable if only one party had to adhere to them. Also, I accept Mr Beckett’s submission that the employment contract, like all employment contracts, contained an implied term of trust and confidence. It would have been inconsistent with the mutual obligation of trust and confidence to compel the employee to abide by the policies and procedures but to permit the employer to ignore them at will. Further, the business was, as Mr Robinson observes in his submissions, “highly systematised”. There is no point in having a system without the commitment to follow it. On page 16 of the manual “misconduct” is defined. It is defined to mean unsatisfactory job performance, infractions of the policies and/or procedures and other unacceptable conduct on office premises or time. There is also a non exhaustive list of serious acts which are taken to constitute misconduct. The manual makes provision on page 17 for a process of oral and written warnings in relation to performance problems. The process is set out clearly as a disciplinary process. It was plainly intended that the process was one which would be followed if consideration was going to be given to disciplinary action including dismissal. The process was not followed in the case of Ms Dare. This was a further breach of contract. The disciplinary process established pursuant to the employee manual was a guarantee of fairness. It was only an implied term of the contract in the sense that the employer’s obligations were implied as contractual terms. It was an express term of the employee manual.
Mr Hurley breached the employment contract with Ms Dare by dismissing her without warning and without notice on 23 May 2003. Ms Dare accepted that the contract had been terminated and is entitled to damages.
Assessment of damages
Ms Dare should receive damages for the distress caused to her by her dismissal and special damages for her economic loss. I accept Mr Beckett’s submissions as to the principles which guide the Court in the assessment of damages. In respect of the breach of the SDA, the measure of damages is that which will restore Ms Dare to the position she would have been in if the wrong had not been committed. In respect of the breach of contract, the measure of damages is that which will restore Ms Dare to the position she would have been in if the contract had been performed. General damages are ordinarily not available for a breach of contract[11] but they are available for the breach of the SDA.
[11] but see Burazin at pp 147-154
The award of general damages should be sufficient to maintain respect for the principles underlying the SDA but should be assessed by reference to the harm done to Ms Dare. Ms Dare impressed me as a phlegmatic and resilient individual. In her handwritten note provided to her solicitor on or about 16 June 2003 she described her dismissal as “inconvenient”. She took prompt steps to protect her financial position by registering for social security benefits and looking for alternative employment. There was no evidence that Ms Dare suffered any physical or mental injury as a result of her dismissal. Mr Beckett submits that an award of general damages should be in the range of $3,000 - $4,000. I agree and will award $3,000.
As to special damages, Mr Beckett submits that Ms Dare should receive a sum equal to her lost earnings, at least up until the end of the three month probationary period to which she was subject at the time of her dismissal. Thereafter, Mr Beckett submits that Ms Dare is at least entitled to damages for the lost opportunity of continuing employment, which Mr Beckett submits was a high possibility. Mr Robinson submits that in the event that liability is found damages for economic loss should be limited to the end of the three month probationary period, less three weeks when Ms Dare did not look for work. In Mr Robinson’s submission, during that three week period Ms Dare failed to mitigate her loss. I reject that submission. In my view, Ms Dare acted promptly and appropriately in seeking social security benefits and alternative employment. At the time of her dismissal she was unwell, almost certainly as a result of her pregnancy. She was suffering morning sickness. It was reasonable for Ms Dare to allow time for her condition to improve before taking on alternative employment. I accept Ms Dare’s evidence that Centrelink regarded her as unfit for work for the entire period of her pregnancy. It is commendable that Ms Dare sought and obtained alternative employment before her confinement. It is less commendable if Ms Dare failed to disclose her earnings to Centrelink but that is uncertain and in any event is beyond the scope of these proceedings.
Ms Dare should receive damages for her lost remuneration from 23 May 2003 until 28 July 2003 when the probation period expired. While Ms Dare’s employment could be terminated on notice for sufficient cause, I find that she had not given sufficient cause for such termination. She had not been found guilty of serious misconduct. She had not even been warned of misconduct, either orally or in writing. Under the contract, termination on notice for misconduct (other than serious misconduct) was not available unless the disciplinary process was followed. That is because, as a matter of interpretation, the disciplinary provisions of the contract modify the operation of the termination provisions. It is true that the procedures gave Mr Hurley the right to follow the prescribed disciplinary steps in any order he chose. However, he was not entitled to ignore them.
There was no guarantee of employment after the end of the probation period. There was, nevertheless, the chance that Ms Dare’s employment might have continued. If the contract had been performed Ms Dare would have received a warning about the password protecting of documents and may also have received a warning about the required procedure for reporting sick. She may have heeded that warning and given Mr Hurley no further justification for disciplinary action. On the other hand, some further fault may have been found with her. The attitude of Mrs Hurley would tend to indicate that she would have been looking out for fault to find but Mr Hurley was required to act lawfully. In my view, there was at least a 50 per cent chance that Ms Dare’s employment would have continued beyond the probationary period. That finding is not a usurpation of the discretion of the employer. It is an assessment of the value of the lost opportunity. Any such assessment involves speculation. Ms Dare should receive damages for loss of that chance calculated as 50 per cent of her remuneration between 28 July 2003 and 28 November 2003 when Ms Dare ceased to be able to work because of her pregnancy. In my view, the chance of Ms Dare being able to return to work with Mr Hurley following her pregnancy was remote. Ms Dare was not entitled to any maternity leave and Mr Hurley, while appearing to remain flexible, had made no commitment to permit any leave. I think it highly likely that when Ms Dare was required to cease work due to her pregnancy the employment would have been terminated by mutual agreement.
Ms Dare’s weekly remuneration (including superannuation) was $838.46. In the period between 23 May 2003 and 28 July 2003 Ms Dare’s economic loss was $7,546.14. In the period from then until
28 November 2003 the value of the opportunity lost was $7,965.37. That is the measure of Ms Dare’s economic loss, both in respect of the breach of the SDA and the breach of contract. From that must be deducted the $6,506 earned by Ms Dare over those periods
I will award special damages in the sum of $9,005.51.
Ms Dare should also receive interest up to judgment at the same rate as she is entitled to receive post judgment interest, namely 10.5 per cent. Interest up to judgment will run from 23 May 2003.
Ms Dare also seeks a declaration but I am not persuaded that there is a need for one. Ms Dare has been compensated by monetary damages.
I will hear the parties as to costs.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 August 2005
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