| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : ENGSTROM and FORTESCUE METALS GROUP LTD [2008] WASAT 314 MEMBER : MS J TOOHEY (SENIOR MEMBER) MS F CHILD (MEMBER)
PROF C MULVEY (SESSIONAL MEMBER)
HEARD : 15 SEPTEMBER 2008 DELIVERED : 3 APRIL 2009 FILE NO/S : EOA 7 of 2008 BETWEEN : PIA ENGSTROM Applicant
AND
FORTESCUE METALS GROUP LTD
Respondent
Catchwords: Discrimination Pregnancy Employment Whether applicant offered casual or permanent employment Medical assessment conducted after applicant commenced showed she was pregnant Restructure of company Whether results of assessment known to respondent Whether applicant's employment terminated on ground of pregnancy Tribunal not satisfied that anyone employed by the respondent in a position to make decisions concerning applicant's employment knew she was pregnant before decision to terminate Application dismissed
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Legislation: Equal Opportunity Act 1984 (WA), s 4, s 10, s 10(1), s 11(1)(b), s 11(2)(c), s 93(1) Result: Application dismissed Category: B
Representation: Counsel:
Applicant : Mr A MacDonald
Respondent : Ms G Archer SC
Solicitors:
Applicant : Commissioner for Equal Opportunity
Respondent : DLA Phillips Fox
Case(s) referred to in decision(s):
Department of Health v Arumugam [1988] VR 319
Grover v Commissioner of Police [2005] WASC 263
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The applicant alleged the respondent discriminated against her on the ground of pregnancy in the area of employment contrary to the Equal Opportunity Act 1984 (WA). 2 The applicant claimed the respondent had offered her permanent employment subject to passing medical and drug tests and referee checks. She claimed that, when the respondent learned from the results of the medical test that she was pregnant, it terminated her employment and gave the position to another person. 3 The respondent denied offering the applicant permanent employment and said she was only offered casual employment pending recruitment of a permanent employee. It said that, while the recruitment process was still underway, it decided to restructure the company, as a result of which the position for which the applicant had been interviewed no longer existed. The position subsequently created required substantially more experience than that for which the applicant had been considered and, as a result, went to another, more experienced, person. 4 The respondent said that, in any event, the applicant's pregnancy had no bearing on any decisions concerning her employment because no-one in a position to make those decisions knew of her pregnancy until after the decision was made to restructure and after the respondent had advised the applicant that her employment was being terminated. 5 The Tribunal was not satisfied that the applicant had been offered permanent employment. It found she had been offered casual employment pending recruitment for the permanent position. 6 The Tribunal accepted the respondent's evidence concerning the confidentiality of the results of the medical examination and its claim that no-one in a position to make decisions concerning the applicant's employment knew she was pregnant at any material time. The Tribunal also accepted the respondent's evidence about its decision to restructure the company. 7 As no-one in a position to make decisions concerning the applicant's employment knew of her pregnancy until after the decisions to restructure and to terminate her employment, the Tribunal was satisfied it had no bearing on either decision. (Page 4)
8 The Tribunal dismissed the application.
Background 9 The applicant, Pia Engstrom, alleges that Fortescue Metals Group (FMG) discriminated against her on the ground of pregnancy in the area of employment contrary to s 10(1), s 11(1)(b) and s 11(2)(c) of the Equal Opportunity Act 1984 (WA) (the Act). 10 Ms Engstrom claims that FMG offered her permanent employment in its Human Resources Department subject only to passing the usual medical and drug tests and referee checks. She says that, when FMG learned from the results of the medical tests that she was pregnant, it terminated her employment and gave the position to another person under the guise of a company restructure. 11 FMG denies offering Ms Engstrom permanent employment. It says she was offered casual employment pending a decision as to who should be offered the permanent position and that, while that process was under way, it decided to restructure the Human Resources Department. As a result, the position for which Ms Engstrom had applied was abolished and new positions created which were subsequently filled by others. 12 It was common ground that Ms Engstrom did not tell anyone at FMG that she was pregnant until after she was told that her employment was being terminated. 13 FMG says the restructure was being considered even before Ms Engstrom was interviewed and before she underwent the medical assessment. In any event, FMG denies that anyone in a position to make decisions concerning Ms Engstrom's employment knew that the medical tests indicated she was pregnant, or that her pregnancy had anything to do with ending her employment. 14 On 2 November 2007, Ms Engstrom lodged a complaint of discrimination on the ground of pregnancy in employment with the Commissioner for Equal Opportunity who investigated and attempted to conciliate the complaint. On 4 March 2008, the Commissioner referred the matter to the Tribunal pursuant to s 93(1) of the Act.
Relevant legislation 15 Section 10 of the Act relevantly provides: (Page 5)
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the pregnancy of the aggrieved person if - (a) on the ground of - (i) the pregnancy of the aggrieved person; or (ii) a characteristic that appertains generally to persons who are pregnant 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 who was not pregnant; and (b) the less favourable treatment is not reasonable in the circumstances. 16 Section 11 of the Act makes it unlawful for an employer to discriminate against a person on the ground of her pregnancy in determining who should be offered employment or by dismissing the employee. 17 'Employment' in the Act includes part-time and temporary work, and work under a contract for services: s 4 of the Act.
Matters agreed and matters in dispute 18 A number of factual matters have been agreed between the parties. In particular, that: (i) FMG advertised a position of 'Senior HR Adviser' in September 2007; (ii) on 18 October 2007, FMG employees Amira Kennedy and Kylie Pickering interviewed Ms Engstrom; (iii) Ms Engstrom was not offered a position during this initial interview; (iv) on 18 October 2007, after the interview, Ms Kennedy telephoned Ms Engstrom and an arrangement was made for her to commence casual employment on 22 October 2007; (Page 6)
(v) on 25 October 2007, Ms Engstrom underwent a medical examination conducted by an external medical provider engaged by FMG; the results noted that she was pregnant; (vi) Ms Engstrom was employed by FMG on a casual basis until 26 October 2007; on that date Ms Kennedy informed her she would not be employed in a permanent position and her casual employment had ceased; (vii) the first time Ms Engstrom informed FMG that she was pregnant was when she told Ms Kennedy on 26 October 2007, after she had been advised that her employment was being terminated; (viii) a contract of casual employment was signed between Ms Engstrom and FMG on 26 October 2007 for the period 22 to 26 October 2007; and (ix) FMG subsequently advertised the positions of 'Senior HR Adviser' in November 2007 and 'HR Manager' in December 2007. 19 The principal points of dispute are: (i) whether FMG offered Ms Engstrom casual employment on the basis that, following successful medical examination, drug screen and reference checks, her employment would be made permanent; (ii) whether any decision-maker in FMG's recruitment process as it applied to Ms Engstrom knew she was pregnant before she told Ms Kennedy on 26 October 2007; (iii) whether Ms Engstrom was not appointed to the position on account of her pregnancy or a characteristic appertaining generally to pregnancy; and (iv) whether the position ceased to exist due to a restructure. (Page 7)
Was Ms Engstrom offered permanent employment
Ms Engstrom's evidence 20 Ms Engstrom has tertiary qualifications in Human Resources Management and Management. In 2007, she had over five years experience in human resources and management positions in Australia and the United Kingdom and over 10 years experience in various positions in the mining industry. 21 In August 2007, while Ms Engstrom and her husband were living in the UK, she learned she was pregnant and that her baby was due in April 2008. In September 2007, she and her husband returned to Western Australia where they wanted to bring up their child. 22 After a short time back, it became clear that employment opportunities for her husband were limited and that Ms Engstrom would be the sole income earner until he found employment. She was looking for permanent or temporary work and planned to work until about a month before the baby was born, after which she hoped to take about four months leave. 23 In October 2007, Ms Engstrom's brother-in-law sent her resume to FMG who contacted her to arrange an interview for the position of Senior HR Adviser. 24 Recruitment for the position of Senior HR Adviser had been underway since 28 August 2007. The position had been offered to one person who subsequently failed the medical assessment. At the time Ms Engstrom's resumé was received, there was one other candidate still being considered. 25 On 18 October 2007, Ms Kennedy and Ms Pickering interviewed Ms Engstrom. According to Ms Engstrom, the interview went well; they discussed her experience, the position and the salary being offered. She says Ms Kennedy and Ms Pickering mentioned they had interviewed several applicants but that none was suitable. 26 Parties agree that Ms Engstrom said she would accept a base salary of $120,000 but, as she had just returned to Australia, she wanted to do some further research into salaries for equivalent positions in the mining industry. They agree that Ms Kennedy said a decision would be made the following week about the successful applicant; she would be open to negotiation about the salary and this could be discussed if Ms Engstrom went further in the (Page 8)
27 Later the same afternoon, Ms Kennedy telephoned Ms Engstrom who was out at the time. Her husband took the call. He telephoned Ms Engstrom and told her Ms Kennedy wanted her to call immediately. 28 What was said when Ms Engstrom returned Ms Kennedy's call at around 6.30 pm is in dispute. 29 Ms Engstrom says that, during this conversation, Ms Kennedy offered her the permanent position and asked her to start the following Monday 22 October 2007. Ms Kennedy said the recruitment process could take some time but she wanted Ms Engstrom to start as soon as possible, on a casual basis, pending the usual medical examination, drug tests and referee checks; subject to meeting those requirements, her employment would be made permanent with effect from 22 October 2007; meanwhile she would be paid $57.79 per hour plus superannuation; and she would meet 'informally' with FMG's Chief Operating Officer, Alan Watling, once she started. 30 Ms Engstrom says Ms Kennedy agreed to her request that the position title be changed from 'Senior HR Adviser' to 'HR Manager' which she thought better reflected the position. She told Ms Kennedy she would think about the offer and call back later that evening. 31 After discussing the offer with her husband, Ms Engstrom rang Ms Kennedy later that evening. She accepted the position and they talked at some length about what the position entailed. 32 Ms Engstrom's account is supported by her husband, Darren Brandli, insofar as he says he took a call on 18 October 2007 from Ms Kennedy asking to speak urgently to Ms Engstrom about 'the interview' and her 'future employment'. He says Ms Engstrom told him later that evening that Ms Kennedy had offered her the permanent position and wanted her to start as soon as possible on a casual basis. In Mr Brandli's mind, it was quite clear that the offer was of a permanent position and, after Ms Engstrom rang Ms Kennedy and accepted the position, he went out and bought champagne to celebrate. 33 It is common ground that there was no agreement at this point as to the salary or other conditions of the permanent position. (Page 9)
34 Ms Engstrom started work at FMG on Monday 22 October 2007. That afternoon, she met with Ms Kennedy and discussed her work generally. Ms Kennedy was to be away on Wednesday 24 October and Thursday 25 October but she arranged two meetings with Ms Engstrom for Friday 26 October 2007, after her return. The first would be an informal meeting in the morning with Mr Watling and Ms Kennedy, the other in the afternoon with Ms Kennedy. 35 According to Ms Engstrom, on the morning of Tuesday 23 October 2007, one of the recruitment team introduced her at a staff meeting as a permanent employee and presented her with a cap with FMG's logo on it. 36 It is common ground that Ms Engstrom was not given a contract of employment or any documents about her employment before Friday 26 October 2007 when her employment was terminated, and Ms Engstrom concedes that her salary, superannuation and leave entitlements were not finalised at any time before her employment ended. She concedes she was still thinking about what salary she would accept but maintains it had been agreed that her minimum (permanent) salary would be $120,000, and she assumed her other entitlements would be according to usual conditions. 37 Ms Engstrom gave evidence that she had been looking for employment since returning to Australia and was registered with several recruitment agencies. On the basis of Ms Kennedy's offer of permanent employment, she advised the agencies not to put her name forward to any more prospective employers. She only did so because of the offer of permanent employment; it would not have been in her interest had she been only offered casual employment. 38 On Sunday 28 October 2007, Ms Engstrom sent Ms Kennedy an email expressing her 'disgust and disappointment' at the unprofessional way she had been treated.
Ms Kennedy's evidence 39 Ms Kennedy says the position of Senior HR Adviser was to be a pivotal role between her own position as Head of Human Resources and more junior roles. Ms Engstrom was one of six or seven persons interviewed for the position. 40 Ms Kennedy says that, on 18 October 2007 when she interviewed Ms Engstrom, one other person, M, was still being considered for the position. She and Mr Watling interviewed M on 19 October 2007 but decided on (Page 10)
22 October 2007 not to offer him the position. 41 After interviewing Ms Engstrom on 18 October 2007, Ms Kennedy says she spoke with Deb Saunders, FMG's Head of Recruitment, and said she wanted to take Ms Engstrom to the 'second interview stage'. She also said she was worried the recruitment process was taking so long and that the section would be left with limited experience during the following week while she was away on a work trip. Ms Saunders suggested engaging Ms Engstrom on a casual basis to see how she performed and to meet the immediate need for staff in the section. 42 Following this conversation, Ms Kennedy telephoned Ms Engstrom to ask if she could 'come on as a casual' which would give both parties the opportunity to see how things worked out. Ms Kennedy maintains that she made clear that the recruitment process for the permanent position was continuing and that the next step would be an interview with Mr Watling. 43 Ms Kennedy gave evidence that, during the interview on 18 October 2007, she thought Ms Engstrom was suitable for the position of Senior HR Adviser but she denies emphatically offering her a permanent position and says only Mr Watling had the authority to make that decision. She also denies telling Ms Engstrom that none of the others who had been interviewed for the position was suitable and says she would never give away her 'negotiating ability' in an interview in that way. In any event, M was still being considered for the position and a second interview with him was scheduled for the following day, 19 October 2007. 44 FMG records relating to the recruitment process show that an interview with M was scheduled for Friday 19 October 2007 with Mr Watling and Ms Kennedy, and that his application was rejected on 22 October 2007. 45 Ms Kennedy says it was agreed she would give Ms Engstrom a contract (for casual employment) when she returned to the office on Friday 26 October 2007; she was pushed for time because she had to leave on Wednesday 24 October 2007, and, consistent with her practice of managing contracts for the more senior staff, she wanted to prepare it herself. (Page 11)
46 Ms Kennedy's evidence is supported by an email she sent to Ms Pickering at 7.34 pm on 18 October 2007 after her conversation by telephone with Ms Engstrom. The relevant part of the email reads: Can you please talk to me re [Ms Engstrom] this [Friday] morning - I'm gonna start her as casual from Monday so we can get some immediate help - will then review along with [M] for permanency. 47 Ms Kennedy was at the staff meeting on the morning of Tuesday 23 October 2007. She agrees that Ms Engstrom was introduced by name and says this is standard for someone helping out in the Human Resources Department. She is emphatic that there was no reference to Ms Engstrom's employment status; she was presented with an FMG cap but this is standard procedure for everyone who is introduced.
Ms Pickering's evidence 48 Ms Pickering is employed as one of two HR advisers at FMG. She gave evidence that she recalls Ms Kennedy telling her that she had offered Ms Engstrom a casual position and that this would give FMG some 'hands on deck'. 49 Ms Pickering was at the staff meeting on Tuesday 23 October 2007 but cannot recall specifically how Ms Engstrom was introduced. However, she understood at all times that Ms Engstrom was a casual employee.
Mr Watling's evidence 50 Ms Kennedy's evidence is supported by Mr Watling who told the Tribunal that he regards the Human Resources Department as 'the heart of the business'. He would not normally interview a person for an equivalent position in another area but he would do so for a senior position in the Human Resources Department because it was important to get the right person. 51 Mr Watling gave evidence that he might not be involved in every step of the process but he would exercise his 'right of veto'. He would have been 'extraordinarily surprised' if Ms Kennedy had offered Ms Engstrom the position on a permanent basis; there would be no point in him attending an interview with a prospective employee who had already been offered a position because he could not then exercise his right of veto. (Page 12)
52 Records of Mr Watling's diary, which are before the Tribunal, show that his personal assistant, Alex Strudwick, originally made an appointment for him to interview Ms Engstrom on Friday 26 October 2007. For reasons which are not clear but do not matter here, the interview was changed to 31 October 2007 but that appointment was cancelled after the decision to terminate Ms Engstrom's employment. 53 FMG maintains that Ms Engstrom was at all times a casual employee and that it was within its rights to terminate that arrangement and employ someone else in the position.
Results of the medical examination 54 The Tribunal heard that FMG requires all applicants shortlisted for positions, whether casual or permanent, to undergo a medical examination conducted by Health Services Australia (HSA), an independent service provider engaged for that purpose. The particular tests vary according to the safety and other requirements of the position. 55 FMG maintains that results of medical examinations are treated in strictest confidence and access is restricted to certain Occupational Health and Safety (OHS) Department staff who are separate from the Human Resources and Recruitment Departments.
Evidence of Ms Watling 56 The Tribunal heard evidence from Linett Watling, a pharmacist who at the time in question was an Occupational Health, Safety and Lifestyle Adviser at FMG and responsible for processing the results of medical examinations. Her role is to assess whether FMG can provide a safe workplace, according to the requirements of the particular position, rather than to assess the results themselves. 57 Ms Watling is married to Alan Watling. Her position would ordinarily report to him but she stipulated when she joined FMG that she would only report to FMG head, Andrew Forrest, or another manager, so as to avoid compromising herself or her husband. She and her husband gave evidence that they observe strict rules about not discussing work with each other. In particular, she has never disclosed confidential medical information to him. 58 Ms Watling gave evidence that FMG has a strict policy about confidentiality of medical records and she was emphatic about her adherence to the policy. She says that, as a pharmacist with over 30 years experience, she is (Page 13)
well aware of the need for confidentiality of medical and pharmaceutical records. 59 Ms Watling told the Tribunal that results of examinations are sent by HSA to a secure website external to FMG's computer system. Notification is by way of an email to the medical records email inbox with the subject line 'HSA Group Secured Message'. The email itself contains a link to the HSA secure website which requires a password to enter. The HSA site lists the names of persons, with results attached in 'zip files'. Once she had read the report, she would forward the results to a confidential FMG 'Medical Records' email inbox, which is also password-protected and only accessible by authorised staff. 60 The only other authorised staff at the time were Ms Strudwick and Michael Ford, Head of Safety. Ms Watling told the Tribunal that no-one sat in a position from which they could see her computer screen; they would have to stand next to her in order to see the screen, and in any event, at the time, she was processing dozens of examination results every day, each usually over 20 pages long, and she would scroll down the screen quickly to locate the information required for the particular position. 61 Ms Watling would assess the results and complete a 'Medical Recommendation Form'. At the time, the form allowed her only to tick whether an applicant was 'Fit for employment in the designated position' or 'Fit for employment in the designated position with restrictions'. (The form has since been amended to include other options). A separate form was used for an employee considered 'unfit'. 62 Having completed the Medical Recommendation Form, Ms Watling would send it to the Medical Coordinator who arranged the assessment who would in turn send it to the recruiter (in this case, Ms Kennedy). Occasionally, if it was urgent, the recruiter might go direct to Ms Watling for the form. Occasionally, for example if information was missing, Ms Watling might not give the form to the Medical Coordinator but would put it in her 'Pending' file. 63 Ms Engstrom attended her medical examination on the afternoon of Thursday 25 October 2007. She told the doctor she was 16 weeks pregnant and had not yet told her employer. From a conversation she had with HSA after her employment was terminated, she understands the results were sent to FMG that same afternoon. Ms Watling believes she first saw the results on the morning of 26 October 2007. In any event, Ms Engstrom does not suggest (Page 14)
that anyone at FMG knew she was pregnant before the afternoon of Thursday 25 October 2007. 64 Ms Watling processed Ms Engstrom's results which recommended her 'Suitable for the proposed position'. To Ms Watling's knowledge, no-one else at FMG saw them. On 26 October 2007, she completed a Medical Recommendation Form certifying Ms Engstrom 'Fit for employment in the designated position'. 65 Copies of the results and the Medical Recommendation Form are before the Tribunal. The results themselves make no mention of the pregnancy. However, they give several indications of pregnancy. 66 In the 'Personal Health Questionnaire' which the employee completes for the assessment, in response to a question about any health care practitioners the employee is currently seeing, it appears that Ms Engstrom has 'obstetrician' and the examining doctor to have written 'noted'. 67 On a Health Promotion Data sheet attached to the assessment, the doctor has noted 'Pregnant [16 1/2 weeks] and further down, about regular prescribed medication, he has noted 'Pregnacare''. 68 Ms Watling does not recall noting that Ms Engstrom was pregnant at the time of assessing her results. The Health Promotion Data sheet is used by FMG to create 'wellness' programmes for employees and she generally paid them little attention. However, she recalls seeing the reference to Pregnacare which she knows is a vitamin and mineral supplement related to pregnancy and breast-feeding and it is possible she saw the note that Ms Engstrom was pregnant. 69 Even if she did notice that Ms Engstrom was pregnant, however, Ms Watling is emphatic that she would have considered her 'fit' for the position because pregnancy does not pose a risk to a desk job in the Human Resources Department. She is also emphatic that she would not have disclosed the fact to her husband or anyone else. 70 The Tribunal heard that, when Ms Watling and Ms Strudwick were processing results, Ms Strudwick noticed from the computer records that Ms Engstrom had not yet been interviewed. She mentioned this to Ms Watling who put the Medical Recommendation Form in her 'Pending' basket with an email note: (Page 15)
An interview was scheduled with Alan Watling first week of November. Pia is a contractor until further instructions pending. 71 Ms Watling says she did not know at that time that the position had been abolished and she would not have written what she did if she had. 72 As set out below, Sharon Ramirez, who was helping Ms Watling, believes Ms Watling told her she had 'done Ms Engstrom's medical' and was 'taking it straight to' Ms Kennedy. Ms Watling is certain she did not give Ms Engstrom's form to Ms Kennedy until some time in November or December 2007, after Ms Engstrom lodged her complaint with the Commissioner for Equal Opportunity; it had stayed in her 'Pending' tray and been overlooked. Ms Watling concedes it is possible she told Ms Ramirez she would give the form directly to Ms Kennedy, because Ms Engstrom was in the Human Resources Department and she is meticulous about confidentiality. However, even if this was so, the form disclosed only that Ms Engstrom was 'Fit for employment in the designated position' and nothing about her pregnancy.
Evidence of Mr Watling 73 Mr Watling is the Chief Operating Officer for FMG. He described to the Tribunal how FMG was formed in July 2003 and, in late 2007, was rapidly expanding its staff in order to meet its operations in mining, port and rail. 74 Mr Watling was emphatic that he had no knowledge of Ms Engstrom's pregnancy or any medical information about her. He says he takes a personal interest in the confidentiality of employees' personal information, which he describes as one of his 'hot button issues'. Mr Watling's evidence about FMG's procedures for ensuring confidentiality accords with that of other witnesses. He has over 25 years experience in the mining industry and says FMG treats medical records with more confidentiality than is usual.
Evidence of Ms Ramirez 75 In October 2007, Ms Ramirez was FMG's Medical Coordinator. One of her tasks was arranging medical examinations for prospective employees. She had to check that examinations had been conducted but the results themselves were not sent to her. Her evidence about the process generally was consistent with that of Ms Watling and Ms Strudwick. (Page 16)
76 At the relevant time, Ms Ramirez was booking 20 - 30 examinations each week. She did not specifically recall arranging Ms Engstrom's examination. However, she did recall that it was 'flagged' on her system as overdue and that she rang HSA to inquire about it. She could not recall exactly when she rang. HSA advised the results had been sent to FMG's secure email address. 77 Ms Ramirez recalls asking Ms Watling what was happening about Ms Engstrom's results and that Ms Watling replied that she was 'taking it straight' to Ms Kennedy. According to Ms Ramirez, Ms Watling would do this sometimes if an area needed an employee urgently. She recalled Ms Watling saying that Ms Kennedy had requested the results. 78 Ms Ramirez recalls a subsequent conversation with Ms Watling about Ms Engstrom's Medical Recommendation Form. She recalls Ms Watling saying she had held on to the form until Ms Kennedy's return because Ms Engstrom was working in the Human Resources section and might have seen the forms if they had been left around. 79 On 8 November 2007, Ms Ramirez made an entry in the Fast Track Database 'Med Rec Handed to Amira'. She believes that date reflects the date of the actual entry and that the conversation itself took place earlier. 80 In the same entry, Ms Ramirez noted that Ms Engstrom was 'Unfit'. She gave evidence that her practice was to put 'unfit' for any person who was 'unsuccessful' or 'did not get the job'; she had not seen the results of the examination or the Medical Recommendation Form and no-one had told her that Ms Engstrom was unfit for employment. Ms Ramirez gave evidence that she adopted this practice from her former supervisor at FMG who would use 'unfit' to include 'unsuccessful'; she was uncomfortable with the practice and has since changed it.
Evidence of Ms Strudwick 81 Ms Strudwick has been Mr Watling's personal assistant since May 2007. Ms Watling had trained her to help process results of medical examinations which she would do from time to time. 82 Ms Strudwick's evidence about processing results of examinations is consistent with that of Ms Watling and Ms Ramirez. She was very clear that results were to be kept confidential and that only she and Ms Watling could see them. The only other person who might see them, for the purposes of a second opinion in a difficult case, was FMG's doctor. (Page 17)
She did not see Ms Engstrom's results and did not know she was pregnant until after she left FMG. 83 Ms Strudwick recalls that she made an appointment for Ms Engstrom to meet with Mr Watling at the end of October 2007. Her only other recollection is noticing Ms Engstrom's name on the list of persons who had had medical examinations, and that she commented to Ms Watling to the effect: She's had her medical already? But she hasn't seen Alan yet. 84 Ms Strudwick recalls rescheduling Ms Engstrom's meeting with Mr Watling from 26 October 2007 to 31 October 2007, as commonly happened because of his busy schedule, and then Ms Kennedy telling her the rescheduled meeting would not be required because Ms Engstrom would not be continuing.
Evidence of Mr Ford 85 Michael Ford is the Head of Safety, Emergency Response, Security and Health and Wellness at FMG. He is authorised to have access to results of medical examinations. However, programming changes to his computer meant he no longer had access to results; he had not had his access reinstated because processing medical results was no longer part of his role. If he wanted to see results, he would ask Ms Watling to send them to him. 86 Mr Ford gave evidence that he might occasionally look at results for the purpose of reviewing an assessment. If he did, he might tell Mr Watling the outcome of the review but not the actual results. 87 Mr Ford has no recollection of Ms Engstrom or her results. He says he had no reason to communicate with anyone about them and he did not do so. 88 The Tribunal has before it a copy of an email sent by Mr Ford on 24 May 2007 to various FMG employees affirming the need for confidentiality and security of results of medical examinations.
Termination of Ms Engstrom's employment
Ms Engstrom's evidence 89 Ms Engstrom met with Ms Kennedy around 4.15 pm on Friday 26 October 2007, nearly two hours after they had planned to meet. According to Ms Engstrom, she understood the meeting was to discuss her salary and other (Page 18)
aspects of the job, and she started by saying she considered a base salary of $150,000 per year to be appropriate for the position. She says Ms Kennedy cut her short and said she was sorry but she had been 'overruled'; the position had been given to 'a mate of a mate' and was no longer available. 90 Ms Engstrom says she was stunned and started crying. Ms Kennedy apologised again but said there was nothing she could do. She gave Ms Engstrom an offer of employment letter and a contract for casual employment for the period she had already worked. Ms Engstrom says she wanted to be paid for the week and so she signed both documents. 91 At this point, Ms Engstrom told Ms Kennedy she was pregnant. Ms Kennedy congratulated her, wished her all the best and offered to be a referee. Ms Engstrom left the office without speaking to anyone because she felt shocked and embarrassed. 92 Ms Engstrom says that FMG must have known that she was pregnant; there is no other plausible explanation for terminating her employment.
Ms Kennedy's evidence 93 Before meeting with Ms Engstrom on Friday 26 October 2007, Ms Kennedy prepared a contract for the week she had worked in accordance with the agreed salary and superannuation. She says that, before she had a chance to explain the restructure, Ms Engstrom said she considered that $150,000 was an appropriate salary for the position. 94 Ms Kennedy says she explained to Ms Engstrom that Mr Watling wanted to bring in a higher level consultant and that she would not be successful for the permanent position; another position would be created at salary around $80,000 to $100,000. She said the person coming in to the position was someone with whom Mr Watling and another senior manager had worked previously; she might have said Mr Watling had worked with him at a particular mining company. She denies saying she had been 'overruled' or that the position had been given to a 'mate'. 95 Ms Kennedy says that, given that she had made it clear that the recruitment process was ongoing, she was surprised at Ms Engstrom's response to being terminated, considering Ms Engstrom had said earlier in the week that she was not happy with the salary. (Page 19)
96 Ms Kennedy maintains that it is her job at FMG to ensure that discrimination does not occur and she takes the job and her integrity seriously; she is a mother and has been pregnant while employed, and she strenuously denies that she would discriminate against a woman on the ground of her pregnancy.
Restructure of the Human Resources Department 97 Ms Engstrom says, in effect, that the so-called restructure of the Human Resources Department was a device to enable FMG to terminate her employment because of her pregnancy, or a characteristic that appertains generally to persons who are pregnant, namely maternity leave. Further, that in fact no restructure occurred. Rather, the position which FMG claimed to have abolished was re-created in another guise and given to someone else. 98 FMG says the decision to terminate Ms Engstrom's employment had nothing to do with her pregnancy and, in any event, the discussions and decisions about the restructure occurred before Ms Engstrom had even had her medical examination. 99 Mr Watling gave evidence that FMG had expanded rapidly since its inception and it was continuously reviewing and restructuring its workforce. A lot of 'very fast-moving organic type of decisions were made' and it was fair to say that a lot were not documented. There were further restructures of the Human Resources Department in December 2007 and January 2008, after the restructure which affected Ms Engstrom. 100 Mr Watling says he started thinking about the staff of the Human Resources Department around October 2007. Some staff had limited experience and he wanted a balance of more experienced staff. He decided a very senior person was needed with experience in the mining industry and change management; at the time, changes were anticipated in Australia's industrial relations laws and he wanted more experience in the section to deal with them. He had in mind a salary of several hundred thousand dollars, and the seniority, experience and remuneration for the position would have been many levels above that for which Ms Engstrom was being considered. 101 Mr Watling told the Tribunal that he had in mind for the very senior position someone he knew from previous work but who was not a personal friend. (Page 20)
102 An email before the Tribunal shows that Ms Strudwick first contacted this person on 17 October 2007 to arrange a meeting. Subsequent emails show that they eventually arranged to meet on 23 October 2007. 103 Mr Watling's evidence, supported by Ms Kennedy, is that he discussed the restructure with her on the afternoon of 23 October 2007 and decided to proceed with his plan. It would entail creating the senior, strategic position and a more junior position with a salary of around $70,000. The position for which Ms Engstrom had applied would no longer exist. 104 Ms Kennedy was away at Paraburdoo on Wednesday 24 October 2007 and Thursday 25 October 2007 and she thought it best to talk face to face with Ms Engstrom about the decision when she returned. 105 In support of the claim that the position was being restructured, Ms Kennedy refers to an email to Ms Pickering at 4.37 am on 24 October 2007 following her discussion with Mr Watling: Just thinking that it may be an idea to get recruitment to postpone Pia's medical - I don't want to put her through 2 hours of it and also bear the cost etc. We can tell her that I've asked for it to be postponed for a week until after her meeting with Alan so we have a bit more direction before we get her to do it. Also she wants to have a salary discussion with me so will wait until we have had that discussion before proceeding further. By return email several hours later, Ms Pickering asked: Is this not going to look suspicious? Ms Kennedy replied: If I was there I would say to her that we don't want to do medical until we see if it's going to work out etc. However, if you think it will cause problems then leave it until I get back and I'll have a chat to her. 106 As it turned out, Ms Pickering did not feel comfortable cancelling the medical examination and explaining the matter to Ms Engstrom and, because Ms Kennedy was away, she let the medical examination proceed. 107 Ms Pickering recalls Ms Kennedy discussing the restructure with her, she thinks by telephone. She could not recall exactly when this conversation occurred but it was during the week that Ms Engstrom was employed and not later. (Page 21)
108 Ms Kennedy also gave evidence that, during this week, at least three other staff in the Human Resources section gave her 'feedback' about Ms Engstrom's attitude and 'cultural fit' at FMG, and she was starting to wonder whether she would continue in the recruitment process but she was still wondering whether she might be suitable for the junior position being created. 109 On the morning of 26 October 2007, Ms Kennedy forwarded to Ms Engstrom an email about inductions, something Ms Engstrom was working on. Ms Engstrom maintains that checking progress of a matter with an employee who would shortly be terminated would be inconsistent with a decision that she would be terminated that day, and that it indicated Ms Kennedy's belief that Ms Engstrom would continue in the position permanently. Ms Kennedy maintains there was work to be done and it made sense for Ms Engstrom to do it regardless of the fact that her employment was about to be terminated. 110 Ms Engstrom says that what happened subsequent to her termination supports her contention that the restructure was, in effect, a fiction. 111 On 8 November 2007, FMG advertised for a 'Senior HR Adviser', the same job title that Ms Engstrom believed was hers. Ms Kennedy says this was in fact the lower paid position created out of the restructure. At the time of the hearing, the position was about to be filled at a commencing salary of $80,000. 112 On 4 December 2007, FMG advertised for an 'HR Manager', the title Ms Kennedy had agreed Ms Engstrom could use. Ms Kennedy gave evidence that this was in fact the senior position created by the restructure; FMG deliberately did not use the term 'consultant', which was what they had mind, because it attracts consulting agencies and they wanted direct applications from individuals. 113 Ms Kennedy says the person Mr Watling originally had in mind for the senior position wanted a salary much higher than FMG was prepared to pay; when negotiations came to nothing, they advertised publicly. Emails between Ms Kennedy and Mr Watling about negotiating the salary support this. The position was eventually filled in February 2008 by a person with senior experience who is still there and who is paid substantially more than Ms Engstrom had wanted. (Page 22)
Findings and reasons 114 For Ms Engstrom's claim to succeed, the Tribunal must find that FMG offered Ms Engstrom permanent employment, that it knew she was pregnant and that it terminated her employment because of her pregnancy. Further, that FMG's conduct constituted discrimination within the meaning of the Act. 115 FMG submits that the Tribunal should find that Ms Engstrom was not a credible witness. We do not agree. We are satisfied that all witnesses, including Ms Engstrom, were truthful. 116 It is possible that Ms Kennedy, who thought at the interview that Ms Engstrom would be suitable for the position, discussed it with her in a way that suggested she would get the permanent position. It is possible that Ms Engstrom heard what she wanted to hear: that she had permanent employment. Regardless, for the reasons set out below, we are not satisfied that Ms Engstrom's claim can succeed. 117 It is not normally appropriate to speak of a party to administrative proceedings, including in this Tribunal, as bearing the onus of proof. Nevertheless, the Tribunal must base its findings on material which is probative of the matter to be proved: Grover v Commissioner of Police[2005] WASC 263 at [26]. The applicant bears the practical burden of assisting the Tribunal by putting such material before it. 118 Ms Engstrom says that FMG has failed to provide a plausible alternative explanation for its decision not to proceed with her employment other than her pregnancy. With respect, we do not think that is the correct approach. Ms Engstrom has to do more than suggest an explanation and leave it to the respondent to refute it. 119 Direct evidence of discrimination is not required; it is open to the Tribunal to determine that there are objective facts from which an inference of discrimination, or otherwise, can be drawn: Department of Health v Arumugam [1988] VR 319.
Was Ms Engstrom offered permanent employment 120 The Tribunal is not satisfied, on the evidence before it, that Ms Kennedy offered Ms Engstrom permanent employment on 18 October 2007 or any time after that. The weight of the evidence supports Ms Kennedy's account. (Page 23)
121 Ms Engstrom's conduct in advising recruitment agencies not to put her name forward for further positions is consistent with being offered permanent employment by FMG. Of itself, however, it can do no more than indicate that she genuinely believed she had been offered, or would be offered, the permanent position. Nor does the email Ms Engstrom sent to Ms Kennedy on 28 October 2007 expressing her disgust and disappointment assist her to establish the facts. 122 Nor does Mr Brandli's evidence assist Ms Engstrom. There is no reason to doubt his account but he can, at most, recount what Ms Engstrom told him. We accept that he believed she had been offered permanent employment and for this reason bought champagne to celebrate. But that does not mean she had, in fact, been offered permanent employment. 123 We are not satisfied that Ms Engstrom was introduced to other staff as a permanent employee. She may genuinely believe she was introduced as a permanent employee but Ms Kennedy is emphatic she was not and, in all the circumstances, we are not satisfied that she was. 124 Ms Engstrom concedes that no agreement was reached at any stage about the conditions of employment for the permanent position, not even the salary. That does not preclude the possibility of an agreement for permanent employment, but it is unlikely. Ms Kennedy holds a relatively senior management position in FMG's Human Resources Department and is an experienced manager. It is unlikely, although not impossible, that she would have offered Ms Engstrom permanent employment even before salary and conditions had been agreed. 125 Ms Engstrom concedes Ms Kennedy told her, at the meeting on 18 October 2007, that a decision would be made about the permanent position the following week. Although not impossible, it is unlikely that Ms Kennedy would offer her permanent employment within hours. 126 We accept Ms Kennedy's evidence that she did not have the authority to offer the permanent position and did not regard herself as having that authority. We accept Mr Watling's evidence that he had a recognised 'right of veto' in relation to the position and that the final decision rested with him. 127 Ms Kennedy's email to Ms Pickering on the evening of 18 October 2007 is entirely consistent with her account. It is also consistent with the evidence, which we accept, that Mr Watling and Ms Kennedy interviewed M on 19 October 2007. (Page 24)
128 To find for Ms Engstrom, the Tribunal would have to find that the content of this email was fabricated by Ms Kennedy at the time or the entire email fabricated subsequently. 129 The email was written three days before Ms Engstrom's medical examination and the day before Ms Kennedy's conversation with Mr Watling about the restructure. It is difficult to conceive a plausible reason why Ms Kennedy would have fabricated this email, and any explanation could not have had anything to do with Ms Engstrom's pregnancy. 130 We find that Ms Kennedy's email reflects what she says had occurred: that she had offered Ms Engstrom casual employment pending the outcome of the recruitment process. We find that Ms Engstrom was not offered permanent employment by FMG at this or any other time.
Did the respondent know Ms Engstrom was pregnant 131 The Tribunal is not satisfied that anyone at FMG who was in a position to make decisions concerning Ms Engstrom's employment knew that she was pregnant. 132 The most that Ms Engstrom can say is that FMG must have known because there is no other plausible explanation for termination of her employment immediately after the medical examination. She cannot provide any evidence of knowledge on the part of anyone in a position to make decisions about her employment. 133 FMG does not deny the possibility that Ms Watling saw from the results of the examination that Ms Engstrom was pregnant. The most Ms Watling can say after this is that she does not recall noticing it. Given that she noticed the reference to Pregnacare which Ms Watling knew to indicate pregnancy, it is more probable than not that she noticed, from the same page, that Ms Engstrom was pregnant. However, we have Ms Watling's sworn evidence, which we accept, that, even if she had noticed, she would not have disclosed it to anyone at FMG and she did not do so. 134 Ms Ramirez was the only other person with authorised access to the results of the medical examination. We accept her evidence that she did not, in fact, see the results. 135 FMG does not deny the possibility that Ms Watling gave the Medical Recommendation Form to Ms Kennedy although Ms Watling is certain she did not. However, even if she did, all that it indicated was that Ms Engstrom (Page 25)
was fit for the designated position. 136 All witnesses for the respondent other than Ms Watling gave sworn evidence that they knew nothing of Ms Engstrom's pregnancy other than Ms Kennedy who first learned of it from Ms Engstrom on 26 October 2007. We accept their evidence. 137 It would go against the weight of all the evidence to find for Ms Engstrom on this point. 138 We find that the first time anyone at FMG knew Ms Engstrom was pregnant was on the afternoon of Friday 26 October 2007 when she told Ms Kennedy. It follows that the decision to terminate Ms Engstrom's employment cannot have had anything to do with her pregnancy.
The restructure 139 In effect, Ms Engstrom asks the Tribunal to find that FMG engaged in an elaborate fiction to avoid the prospect of employing a pregnant woman. Even allowing that an employee on maternity leave might have been inconvenient at a time when FMG wanted stability in its workforce (and there is no evidence of that), it is barely plausible that FMG would have gone to the lengths Ms Engstrom claims merely to avoid having a pregnant employee. 140 The Tribunal accepts Mr Watling's evidence that he had been considering a restructure for some time and that he reached a decision which he communicated to Ms Kennedy on 23 October 2007, two days before Ms Engstrom underwent the medical examination. We are satisfied that her pregnancy had no bearing on the decision to restructure the Human Resources Department. 141 The mere fact that the decision to restructure was made before FMG could possibly have known Ms Engstrom was pregnant does not exclude the possibility that, once FMG learned she was pregnant, it decided not to employ her for that reason and used the restructure to mask its decision. However, on the evidence before us, we are not satisfied that is what occurred. 142 If that were the case, then all of the following had to occur sometime between the afternoon of Thursday 25 October 2007 at the earliest and about 4.15 pm on Friday 26 October 2007: Ms Watling noticed from the results that Ms Engstrom was pregnant; she determined it was of likely interest or concern to Mr Watling or Ms Kennedy and (Page 26)
she should tell them about it; she did tell one or both of them; Mr Watling, alone or in consultation with Ms Kennedy, decided he did not want to employ a pregnant woman; and that Mr Watling decided to terminate her employment under the guise of the restructure and conveyed this to Ms Kennedy. 143 Against those findings is the evidence, which we accept, that the decision to restructure had been made by Tuesday 23 October 2007; that Ms Kennedy knew that Ms Engstrom's employment would be terminated and that she would tell her on her return at the end of the week; that Ms Watling did not tell anyone at FMG that Ms Engstrom was pregnant; and that no-one else at FMG knew she was pregnant before her employment was terminated. 144 It is understandable that the way in which the positions were subsequently advertised affirmed Ms Engstrom's belief that she had been discriminated against. However, we are not satisfied, on all the evidence before us, that that is what occurred.
Order The application is dismissed. |