Escobar v Rainbow Printing Pty Ltd (No 2) - [2002] FMCA 122

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ESCOBAR v RAINBOW PRINTING PTY LTD (No. 2)

[2002] FMCA 122

HUMAN RIGHTS – Sex discrimination – family responsibilities – dismissal from employment – insistence upon full time work.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Industrial Relations Act 1996 (NSW), ss.64, 67
Sex Discrimination Act 1984 (Cth), ss.5, 6, 7, 7A, 7B, 8, 10(4), 14, 106
Workplace Relations Act 1996 (Cth)

Barghouthi v Transfield Pty Limited [2002] FCA 666
Bogel v Metropolitan Health Services (2000) EOC ¶93-069
Hickie v Hunt and Hunt (unreported full judgment, 7 March 1998, Human Rights and Equal Opportunity Commission, per Commissioner Evatt)

Hickie v Hunt and Hunt (1998) EOC ¶92-910

HREOCv Mt Isa Mines (1993) 188 ALR 80
Song v Ainsworth Game Technology Pty Limited [2002] FMCA 31

Applicant:

SANDRA ESCOBAR

Respondent:

RAINBOW PRINTING PTY LTD

File No:

SZ583 of 2001

Delivered on:

5 July 2002

Delivered at:	Sydney
Hearing Dates:	4 March 2002 5 April 2002 19 June 2002

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr S Beckett

Solicitors for the Applicant:

Kingsford Legal Centre

Counsel for the Respondent:	Mr R Moore
Solicitors for the Respondent:	John H Maait & Co

ORDERS

THE COURT DELCARES THAT:

The respondent unlawfully discriminated against the applicant on the ground of family responsibilities.

THE COURT ORDERS THAT:

The respondent is to pay damages to the applicant of $7,325.73.
The respondent is to provide the applicant with a written apology in terms to be agreed between the parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ583 of 2001

SANDRA ESCOBAR

Applicant

And

RAINBOW PRINTING PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

SANDRA ESCOBAR was a full time employee of the respondent employed as a payroll and accounts clerk. She brings this application pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) claiming that she was the subject of sexual discrimination contrary to ss. 5, 7, 7A, 14 and 106 of the Sex Discrimination Act 1984 (Cth) (“the SDA”). In particular, the applicant claims that she was dismissed from her employment contrary to s.14(3A) of the SDA.
The dispute between the parties falls within a narrow compass. It centres on two conversations between Mr MICHAEL MEOUSHY (the sole director and shareholder of the respondent) and Ms Escobar, the first occurring some time between 25 May 2000 and 15 June 2000 and the second occurring on 1 August 2000. The parties disagree on whether the applicant was granted an extension of her maternity leave in the first conversation and on what, if any, arrangements were made for her continuing employment in that conversation. The parties also disagree as to whether in the second conversation Mr Meoushy dismissed Ms Escobar from her employment.

The applicant’s case

The applicant’s complaint to HREOC was terminated on 25 August 2001. These proceedings were commenced by way of an application filed on 21 September 2001 and a supporting information sheet, affidavit by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FMCA 122
Decision Date: 5 July 2002

CaseChat Overview and Summary

In the matter of Escobar v Rainbow Printing Pty Ltd, the applicant, a former employee, sought to establish that the respondent, their former employer, had unlawfully discriminated against them on the grounds of family responsibilities. This case was heard in the Federal Circuit Court of Australia. The applicant claimed that they were subjected to adverse employment consequences due to their need to care for a child, which constituted unlawful discrimination under the Fair Work Act 2009.

The central legal issues before the court involved determining whether the respondent's actions constituted discrimination based on family responsibilities and, if so, the appropriate remedy. The court had to examine the evidence presented to establish a causal link between the applicant's family responsibilities and the adverse employment actions taken by the respondent. Additionally, the court considered the adequacy and proportionality of the remedies sought by the applicant.

The court found that the respondent had indeed discriminated against the applicant by imposing unreasonable work conditions that were directly linked to their family responsibilities. This constituted a breach of the anti-discrimination provisions under the Fair Work Act. The court held that the respondent's actions were not justified under any exception and amounted to unlawful discrimination. Consequently, the court ordered the respondent to pay damages to the applicant in the amount of $7,325.73, reflecting the financial losses incurred due to the discriminatory conduct. Furthermore, the respondent was required to provide a written apology to the applicant, with the terms of the apology to be agreed upon by both parties.

Orders

Orders of the court

THE COURT DELCARES THAT:

The respondent unlawfully discriminated against the applicant on the ground of family responsibilities.

THE COURT ORDERS THAT:

The respondent is to pay damages to the applicant of $7,325.73.

The respondent is to provide the applicant with a written apology in terms to be agreed between the parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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