Evans v National Crime Authority

[2003] FMCA 375

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EVANS v NATIONAL CRIME AUTHORITY [2003] FMCA 375

HUMAN RIGHTS – SEX DISCRIMINATION – DISCRIMINATION ON THE GROUNDS OF FAMILY RESPONSIBILITIES – Whether the applicant was a single mother with responsibilities for a six year old child – whether the applicant was employed as an intelligence analyst on an important reference – where the applicant was required to take personal leave in the form of sick leave and carers leave – where all leave taken was in the applicant’s entitlements pursuant to her contract of employment, the NCA Certified Agreement 2000-2002 – where the applicant was criticised for her attendance record by a superior officer of the respondent – where the applicant was told she would have to give a 100% commitment to the job – where the applicant was given a rating in her performance review that reflected concerns about her attendance record – where the applicant was not given an extension of contract for one year – where the applicant was only given extension of contract for three months – where the applicant was informed within one month that the extended contract would not be reviewed – where the applicant made complaints about the conduct of the superior officer – where the superior officer made comments critical of members of staff taking carers leave – where meetings were arranged which did not resolve the issues – where further remarks were made concerning the applicant taking carers leave – where the applicant took personal leave for stress as a result of the activities of the respondent – where the applicant was transferred from one position to another without notice – where senior member NCA indicated that he would not have employed the applicant if he had known she had a child and was required to take carers leave – where applicant resigned – whether applicant was constructively dismissed – whether actions of NCA constituted breaches of s.14(2) of the SDA and breaches of s.14(3A) of the SDA – whether applicant suffered dysthymic disorder – measure of damages – where apology requested.

CONTRACT OF EMPLOYMENT – BREACH OF CONTRACT – CONSTRUCTIVE DISMISSAL – where applicant took personal leave in  accordance with her entitlements – where the taking of such leave was criticised – where actions of the respondent constituted constructive dismissal.

Sex Discrimination Act 1984 (Cth), ss.5, 6, 7, 7A, 7B, 8, 14

IW v City of Perth (1997) 191 CLR 1
Commonwealth v HREOC (Dopking No 1) (1993) 46 FCR 191
HREOC v Mt Isa Mines (1993) 46 FCR 301
Western Excavating v Sharp (1978) 1 QB 761
Mohazab v Dick Smith Electronics Pty Limited (No 2) (1999) 88 IR 259 Allison v Bega Valley Council (1995) 63 IR 68
Mayer v A.N.S.T.O [2003] FMCA 209
Escobar v Rainbow Printing Pty Limited (No 2) [2002] FMCA 122
Bligh v State of Queensland (1996) EOC 92-848
City of Perth v An Individual Member of People Living with Aids (1992) 29 ALD 235
Travers v State of New South Wales (2001) 163 FLR 99
De Simone & De Simone Consulting Group Pty Ltd v Bevacqua (1995) 69 LIJ 688
Re Susan Hall, Dianne Susan Oliver and Karyn Reid And: A & A Sheiban Pty Ltd; Dr Atallah Sheiban and Human Rights and Equal Opportunity Commission No NG 1185 of 1988 Fed No 65 Sex Discrimination 20 FCR 217 Rugema v Gadston Pty Limited (1997), (unreported Commissioner Webster)
Namol Pty Ltd & Anor v AW Baulderstone Pty Ltd & Ors (1993) 119 ALR 187

Applicant: RACHAEL EVANS

Respondent: COMMONWEALTH OF AUSTRALIA (AUSTRALIAN CRIME COMMISSION)

File No: SZ 301 of 2003

Delivered on: 5 September 2003

Delivered at: Sydney

Hearing dates: 4, 5, 8, 18 and 19 August 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr S Beckett

Solicitors for the Applicant: Legal Aid Commission, Ms M Tibby

Counsel for the Respondent: Ms R Henderson

Solicitors for the Respondent: Australian Government Solicitor,
Ms H Dejean

ORDERS

1. The Court Declares that the respondent unlawfully discriminated against the applicant contrary to s.14(2) of the Sex Discrimination Act by its actions in connection with the applicant’s taking of carer’s leave prior to 30 June 2000. The respondent breached s.14(3A) of the Sex Discrimination Act by discriminating against the applicant on the grounds of the applicant’s family responsibilities by dismissing the applicant.

2. The Court Orders that the respondent pay to the applicant:

   (a)By way of general damages in the sum of $25,000.00 plus interest in the sum of $7,493.84.

   (b)By way of special damages for economic loss:

   (i)Wage loss 19 August 2000 to 7 January 2001 in the sum of $16,197.60 plus interest from 8 January 2001 in the sum of $4,167.89.

   (ii)Loss of superannuation in the sum of $1,295.81 plus interest from 8 January 2001 in the sum of $333.43.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 301 of 2003

RACHAEL EVANS

Applicant

And

COMMONWEALTH OF AUSTRALIA
(AUSTRALIAN CRIME COMMISSION)

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings, which were commenced by way of application dated 6 March 2003 seek a declaration that the respondent, now known as the Australian Crime Commission but at the appropriate time known as the National Crime Authority, did during the course of the applicant’s employment with it unlawfully discriminate against her on the grounds of her sex within the meaning of the Sex Discrimination Act 1984 (Cth) (“SDA”). The applicant also seeks relief by way of damages and apology together with certain consequential orders. The applicant’s detailed allegations against the respondent are set out in a document entitled “Points of Claim” filed on 23 April 2003. The respondent denies that it discriminated against the applicant as alleged or at all.

2. The applicant is a single parent, who was, prior to her employment by the respondent, a member of the Australian Armed Forces in the RAAF.  During the course of her employment with the RAAF she received specialist training in languages.  She is fluent in Indonesian and speaks Malaysian and three Pidgin languages.  She also received training in language recognition which enables her, without necessarily understanding what is being said, to identify a language in which a conversation is being carried out.  These are specialist skills utilised in the intelligence services. 

3. On 13 January 1997 a son was born to the applicant.  On 20 June 1999 she resigned from the RAAF because she wished to bring up her son in a more fixed environment.  She was concerned that if she remained with the RAAF she would have been posted to Timor.  On 1 July 1999 she commenced work with the organisation that was then known as the National Crime Authority (“NCA”).  I shall refer throughout this judgment to the Australian Crime Commission, as it is now known, as the NCA.  She was given a year’s contract with the NCA.  This was known as a “non-ongoing” position.  At the termination of this contract she was given a further contract from 1 July 2000 to 30 September 2000.  Between early July 2000 and 18 August 2000 when the applicant left the NCA a series of meetings, discussions, e-mail, correspondence and other communication took place between the applicant and, principally, one Michael Purchas, the manager of investigations with responsibility for the team in which the applicant had been placed, which for the purposes of this judgment I shall call the “Blade” Team.  He was not the person to whom Ms Evans reported directly.  There was a line manager under him.  Mr Purchas was not the only person involved in the events surrounding the termination of Ms Evan’s contract with the NCA, there were others including human resources specialists.  The evidence of all these persons will be discussed in these reasons. 

4. The applicant claims that after she left the NCA she was suffering from considerable stress and on 15 September 2000 left for Cambodia where she stayed until 27 November 2000.  She took her son with her.  On 8 January 2001 the applicant commenced work in Alice Springs with a company known as Raytheon Incorporated at the Pine Gap facility.  On 2 March 2002 the applicant resigned her position with Raytheon and returned to Sydney.  She is currently in part time employment with the University of Western Sydney and has commenced part time study, being enrolled in the Bachelor of Adult Education course at UWS. 

5. The applicant claims that as a result of the discrimination which she said was visited upon her whilst at NCA she was unable to work at all until she took the post at Raytheon and has been unable to cope with full time employment since she left the post with Raytheon. She believes that it will be a further time before she is able to take up full time employment and claims in addition to damages of a general nature special damages for loss of earnings and loss of employability. The applicant claims that the circumstances of the termination of her employment amounted to constructive dismissal so that in addition to claims that the NCA discriminated against her on the grounds of her sex in employment it also discriminated against her in breach of s.14(3A) by dismissing her on the ground of her family responsibilities.

The evidence

The applicant

1. The applicant swore two affidavits dated 6 March 2003 and 20 May 2003.  She gave evidence of her career up until the time that she had joined the Blade Team as an intelligence analyst at grade APS 5.  That is not the most senior grade of analyst, there was an APS 6 analyst working with her who she supported.  The first analyst she worked for, a Mr Brew, left in October 1999 and thereafter she worked with Tracey Melrose, who was also an APS 6.  The applicant deposed to the fact that after Mr Brew left there was no-one to do his work so she was effectively doing his APS 6 work alongside Ms Melrose.  She accepted that Ms Melrose was more qualified than herself and that she would consult with her.

2. Ms Evans deposed to the fact that she enjoyed the work and did it to the best of her ability working consistently and hard.  She would from time to time be required to work late into the night and made it clear to her superiors that she could adjust her child care responsibilities to cope with this if she had reasonable notice.  The head of her team was Peter Baker to whom she reported.  She stated that Mr Baker never asked her for anything that she didn’t produce and that the only time she recalls discussing her performance with him was in June 2000 around the time of her upcoming performance review.  She deposed to the fact that this discussion was fairly informal and that no problem was brought to her attention.  She felt he seemed happy about the way she worked and how the enquiries were progressing.

3. When Ms Evans left the RAAF she brought with her all of her carry over leave entitlements from that organisation.  These were substantial, amounting to between six and seven hundred hours.  Whilst the existence of this bank of leave entitlements is an important factor I do not believe that there was any evidence that the leave taken by Ms Evans exceeded that to which she was entitled under the terms of her contract during the year 1999 to 2000.  It is probable that because Ms Evans was only granted a three month contract from 1 July 2000 that the leave which she took thereafter was in excess of the benefits under her workplace agreement, but she was entitled to utilise the credits for this purpose. 

4. In the three months prior to 1 July 2000 Ms Evans had taken some time off for personal leave.  Personal leave includes, relevantly for this case, personal sick leave and carer’s leave.  Ms Evans was also entitled to take flex leave where she had worked extra hours.  It is not in dispute that, with the possible exception of one day, Ms Evans provided medical certificates for all periods of either personal sickness leave or carer’s leave for her child.  The actual leave that Ms Evans took is in dispute and will be the subject of a finding.  What is not in dispute is that Ms Evans did not exceed her entitlements.

5. Ms Evans deposed to the fact that on 4 July 2000 she attended a meeting with Mr Purchas during the course of which he informed her that her absences were unacceptable.  She claims he said to her words to the effect:

   “If your absences continue your contract will probably be discontinued by the powers that be.”

   She says he said to her words to the effect:

   “You hold a key position and someone like you has to be there 100%.  The operation is foremost my responsibility, and you are not fulfilling the job on a full time basis.”

6. Ms Evans had shortly prior to this meeting taken some days off as carer’s leave because her child had been hospitalised for pneumonia.  She deposes to the fact that she explained this to Mr Purchas, she said:

   “What can I do?  Jacob has been ill.  I have certs in 99% of cases.  If you are concerned about the leave, I have it.”

   Mr Purchas responded:

   “You can’t possibly.”

   Ms Evans said:

   “I do, I have six to seven hundred hours from the airforce.”

   Mr Purchas said:

   “No, that’s not right.  That’s not possible.”

7. Ms Evans deposes to being shocked by the conversation with Mr Purchas.   She said it was the first time that anyone had spoken to her in this manner, which she considered to be accusing, over her entitlements.  She says that she felt like quitting the job there and then but realised that with a mortgage to pay and a car to pay off and her son to support she should stay and try and ensure that her contract was extended.  She deposes to the fact that Mr Purchas told her that others were complaining about her.  She was surprised by this because no other members of the team had spoken to her and suggested that she was not performing or not delivering.  In her affidavit she denied any allegation by Mr Purchas that she had produced no written work.  She describes at some length the written work which she had produced.  This was not the subject of any substantial cross-examination.

8. Following the meeting Ms Evans suffered from stress and anxiety and consulted her doctor.  He gave her a certificate for a period of eleven days from 10 July to 24 July.  On 25 July when she returned to work she spoke again to Mr Purchas.  She had previously had her original contract extended until 30 September 2000 and was hoping that this would be extended for a further year.  The Blade investigation was ongoing and she had no reason to believe that it did not continue to require the services of an analyst in her position.  At the 25 July meeting the applicant deposed to the fact that Mr Purchas told her that the NCA had determined not to continue her contract beyond 30 September.  She claims that during this conversation he said words to the following effect:

   “If I had known of your situation I would never have hired you.”

   The applicant responded:

   “Do you mean that I am a sole parent?”

   Mr Purchas said:

   “Yes.”

9. She had expected that the contract would be renewed and was very shocked when she read the letter.  There was then a conversation between herself and Mr Purchas.  The contents of that conversation are not really in issue, they involve Mr Purchas asking the applicant what she intended to do and the applicant suggesting to him that she might study.  Mr Purchas interpreted that conversation as indicating that the applicant was telling him that she had already made some arrangements about study and was awaiting confirmation which might lead her to leave within a short period.  The applicant stated that that was not the purport of her advice to him at all.  She thought he was referring to what she might do after the contract had ended and she made the remarks concerning the possibility of study really for something to say.

10. The conversation to which I have just referred resulted in a series of emails between Mr Purchas and Ms Evans in which Mr Purchas refers to the possibility that the applicant might be leaving quickly to take up a course of study.  The applicant’s responses deny this and confirm that she was prepared to work in accordance with her contract. She stated that Mr Purchas asked her if she could guarantee 100% attendance for the remainder of her contract.  She told him that she could not make a guarantee about something she could not control such as whether her son was sick.  She advised Mr Purchas that she would honour her contract with the NCA in good faith.  On 27 July 2000 the applicant states that she had a conversation in a meeting with Mr John Veale, the human resources manager at the NCA.  Mr Veal is actually resident in Melbourne and he had come to the Sydney office for another purpose.  The applicant stated that she told him she was concerned about the manner in which she was being treated by Mr Purchas in relation to her leave entitlements.

11. In the afternoon of that day there was a meeting between Mr Purchas, Mr Veal and the applicant.  She felt that Mr Purchas had addressed her in a way that was badgering and intimidating and she became very upset.  She deposed to the fact that Mr Purchas repeated his demand that she not take any leave during the remainder of her contract.

12. The applicant deposes to the fact that after the meeting with Mr Veal she continued to receive a number of calls from Mr Purchas questioning her about her intentions in relation to the remainder of her contract.  Her standard response was that she would honour the terms and conditions of her contract as set out in the contract and stipulated in the Certified Agreement.  She felt that Mr Purchas was not satisfied with this response. 

13. The applicant deposes to the fact that at a weekly staff meeting on 1 August 2000 Mr Purchas said words to the effect:

    “Only people who are willing to fulfil their operational duties adequately will be considered for analyst positions.”

    This distressed her because she believed that the comments were directed at her.

14. On or about 10 August 2000 Mr Purchas moved the applicant from the Blade group to another group.  On the same day she had a meeting with Felicity Scott, a senior analyst and Mr Wayne Thompson, the personnel manager.  She made a formal complaint to them about the way that Mr Purchas was treating her and other staff.  On 14 August 2000 she had a meeting with her new team leader, Mr Birley and with a Mr Shannon, the operational support co-ordinator for that team.  She states that she thought the meeting was to be about operational matters but she was questioned about her intentions as to staying on at the NCA.  Mr Birley asked her if she had any more sick leave during the remainder of her contract and she recalls that Mr Birley said words to her to the effect that Mr Purchas had asked them to talk to her and question whether she was intending to be there every day.

15. Investigations into the difficulties between Mr Purchas and the applicant were continuing in the background.  On 17 August 2000 she had a meeting with the now deceased regional director of the NCA and a Mr Wayne Thompson.  She says that Mr Allen, the regional director said to her in that meeting words to the effect:

    “I would never have hired you if I had known that you would have a sick child and take so much time off.”

    She says that she felt distressed because of this discussion and sick.  She returned to her desk and wrote an e-mail resigning from her position.  On 18 August 2000 she formally resigned from her position with the respondent because she felt she could not continue with her employment whilst the NCA allowed harassing and discriminating treatment of her to continue.

16. Under cross-examination Ms Evans stated that the conversation between herself and Mr Allen was not quite as that contained in her affidavit.  She said that she told Mr Allen that Mr Purchas had said that he would not have employed her and that Mr Allen then said:

    “I suppose if we had known we wouldn’t either.”

    She says that as a result of that conversation she felt she had no choice but to leave.

1. Ms  Evans stated that after she left she contacted Jacob’s grandfather who lived in Cambodia and he suggested that she come to stay with him to recuperate, which she did.  She felt empty, lost and depressed during this time.

2. Under cross-examination the applicant stated that at some time prior to the events which have been rehearsed here she had been contacted by a friend of hers who had previously worked with her in the RAAF.  This friend was now working for Raytheon at Alice Springs.  She suggested to the applicant that it might be an idea for the applicant to make an application for a job at Pine Gap because the money was good.  She explained to the applicant that there were no jobs immediately available but because of the very lengthy and necessary security clearance processes it was Raytheon’s practice to accept applications from people and to have them vetted so that if a position came up after the positive vetting had occurred it could be offered to that applicant immediately and there would be no lengthy delay in taking up the position.  As I understand the evidence of the applicant it was suggested to her that Raytheon might offer a person a job and that person might say that it was not convenient at that time and they would be put back in the list of available people and approached when the next opportunity arose.

3. The applicant did allow her CV to go into Raytheon and was positively vetted by them.  She was offered a position which she could have taken up in September.  She states that if her contract with the NCA had been renewed as she had expected it would, she would not have taken the job with Raytheon.  Even though she would have been paid more money in Alice Springs she did not want to move her child into central Australia.  She was happy working at the NCA and enjoyed the work.  As things happened she was pleased to be able to take up the position from January of 2001. 

4. The job which she took at Raytheon was called a “video tracker”.  It appears to have involved watching approximately six screens at one time for a period of twelve hours at a stretch.  It was a job that required considerable concentration.

5. The applicant deposed to the fact that during her period at Alice Springs her son became disturbed.  He was concerned when she left him to go and work on shift.  She had difficulty in obtaining child care.  Jacob missed his family.  In the end she decided to return to Sydney.  The first four months of 2002 the applicant decided to remain at home with Jacob because he was just starting school.  She claimed the supporting mother’s pension for this period.  She then obtained some temporary agency work for six months with human resources in the Department of Defence.  Her salary was less than that which she had received at the NCA.  She enrolled at the University of Western Sydney in the Bachelor of Adult Education course part time.  She says that she can complete the work within a year or two.  She now works casually doing part time administrative work for the University of Western Sydney and earns approximately $350.00 to $400.00 per week after tax. 

6. The applicant deposes to the fact that while she is still very attracted to the intelligence industry she is terrified of committing to full time work because of the terrible experiences she had at the NCA which still upset her when she thinks about them.

7. I thought that the applicant was an impressive witness.  She gave her evidence clearly.  She was subject to considerable cross-examination, but was not, to my mind, moved on any of the essential elements of her story.  I accept what she says concerning the Raytheon position.  I do not believe that she intended to leave the NCA in any event and take up a post at Raytheon.  I think she allowed her name to go forward to Raytheon and attended an interview with them on 1 August 2000 on the basis that she would not accept a post if her job at the NCA was continued.  At one stage during her evidence she was asked about an allegation concerning someone called David Shannon.  She readily conceded that having read an affidavit by Mr Michael Birley that she withdrew any suggestion that Mr Shannon was improperly placed in his position and that if Mr Birley had said that he had won his position on his merits she absolutely accepted that.  I thought that she made this statement with honesty and candour.  She did not try and dissemble or to justify the previous position which she had taken in regard to this matter.

Sharon Monroe

1. Ms Monroe provided an affidavit to the court dated 21 May 2003 in which she stated that she worked at the NCA on a full time permanent basis from 1 April 1991 until 30 April 1997 when she resigned due to the impending birth of her child.  She returned to the NCA between April 1999 and September 2001 as an intelligence analyst.  She was a contract worker but her contract was extended approximately three times.

2. Ms Monroe deposed that on about 27 June 2000 she was called into Mr Purchas’ office.  She claims he said words to her to the following effect:

   “In the last six months you have had about three weeks leave.  What is the problem?  What reason is there for you taking this leave?  How many children do you have?”

   She responded that she had the sole care of two children and that her daughter had a cyst on her kidney.  She claims that Mr Purchas remarked sarcastically:

   “So she catches everything going around”.

   And that he said to her words to the effect:

   “You are an analyst and I can’t afford you to be away this much.  If you were in OSG it wouldn’t have such an impact on the team, but because you are an analyst it does.  Can you make other arrangements for the children?”

3. During the course of the conversation Mr Purchas allegedly said to her:

   “Can the NCA do anything to alleviate your need to take carer’s leave?  Could we find someone to look after the children for you?”

   She responded:

   “No, I will not leave my children in the care of just anyone.  I would be an irresponsible parent if I did that.  I will make my own enquiries.”

   She said that Mr Purchas then said words to the following effect:

   “I have to look after you as a subordinate, but also the operational interests of the team and this much time away would affect operations.  I will also be speaking to Rachael Evans about her leave too.  If you and Rachael were in OSG, this leave wouldn’t matter, but because you are analysts, it does.  I haven’t factored into your leave rec days and flex leave days taken.”

4. There was then a discussion about Ms Monroe’s flex sheets which Mr Purchas had alleged were not being completed properly or on time.  Ms Monroe states that on 1 August she was called into Mr Purchas’ office again when he said to her words to the effect:

   “I still have issue with your carer’s leave.  If you don’t stop it Sharon, your contract won’t be renewed.”

5. Ms Monroe deposes to a further conversation about the quality of the medical certificates being provided and a conversation with one Barry Alexander in which he brought up the subject of carer’s leave allegedly at the request of Mr Purchas. 

6. Ms Monroe reported these incidents to her union representative, Mr David Shannon, and things appeared to have quietened down and her contract was renewed.  However, in July 2001 during a performance appraisal she alleges that Mr Purchas said to her words to the effect:

   “You and Rachael have been rorting the system and sharing carer’s leave for each other’s children.”

   She states that the performance review filed by Mr Purchas following this conversation was a poor one and as a result she did not get any increment in salary.  She asked for review of the decision.

7. Under cross-examination Ms Monroe did concede that she had not kept her flex sheets up to date.   A strong attack was made upon her for her alleged failure to complete her flex sheets in time.  She responded to that in what appeared to me to be an honest way.   She accepted she had been criticised for this but remained firm that she had also been criticised for taking carer’s leave.  I am satisfied that this occurred.  In Mr Purchas’ evidence he conceded that he had made the remark to her concerning her and Ms Evans sharing accommodation and rorting the system by looking after one another’s children.  This was at a time after Ms Evans had left the NCA.  Mr Purchas states that he was told about this and brought it up in the performance review meeting but when he was told that there was no evidence of it he did not press the point. 

Virginia Purssell

1. Ms Purssell is the applicant’s foster sister.  She has worked in human resources for approximately fifteen years and gave advice to Ms Evans during the course of her problems with the NCA.  Her evidence goes to conversations she had with Ms Evans about meetings with Mr Purchas and in particular the meeting with Mr Veale.  During the course of that meeting Ms Evans had asked that Ms Purssell be allowed to come into the meeting on the telephone.  This is what happened.  Mr Veale deposed to the fact that the conversation between himself and Ms Purssell was heated.  Ms Purssell does not necessarily agree with this.  She said she put her points forcibly.  I would tend to prefer the evidence of Mr Veale on this matter although I do not think that it is of much importance in the decision which I am required to make. 

Tracey Melrose

1. Ms Melrose was the APS 6 senior intelligence analyst with the NCA who worked closely with Ms Evans.  She is no longer with the NCA but she deposed to the fact that she had a good opportunity to observe Ms Evans at work and believed that she was an excellent analyst and one of the best analysts she had ever worked with.  She says that Ms Evans was competent, forthright and had a very good understanding of the criminal intelligence environment.  She assimilated information quickly and worked hard and consistently at her work.  She had no problems with Ms Evans’ timekeeping or with Ms Evans attending at work when required.  She believed Ms Evans enjoyed the work she did and would like to have remained at the NCA. 

2. Ms Melrose deposes to the fact that it appeared to her that Mr Purchas was uncomfortable with staff taking carer’s or sick leave.  She stated that he came to her in the office one day and said words to the effect:

   “I am not happy with the level of sick leave and carer’s leave being taken from the floor.  Would you please talk to the operational support group and the analysts on duty and tell them to be mindful of taking time off as it is affecting the operations on the floor and operations in general.”

   She did do this although she says she felt uncomfortable about it.

3. Ms Melrose deposed to the fact that she recalls the occasion when Ms Evans’ son was ill and was hospitalised.  Ms Evans told her that Mr Purchas had queried her absence.  Ms Melrose noticed that Ms Evans was very upset about this and she was quite surprised at what had occurred. 

4. Ms Melrose deposed to counselling Ms Evans and Ms Monroe about their problems with Mr Purchas and their concerns that he wanted them gone from the NCA.

5. Ms Melrose also was asked to comment upon the assessment of Ms Evans which had been made in July 2000 at a “2” level.  Ms Melrose stated that she believed that the rating of “2” was too low.  She believed that Ms Evans was above that.  She stated that Ms Evans was an excellent worker, that they were on the Blade reference together and she observed her work daily.  She believed Ms Evans was a very good team worker who dealt with her staff well.  She never heard any complaints from other members of the staff about Ms Evans’ absence.  She only heard those complaints from Mr Purchas. 

6. Under cross examination Ms Melrose confirmed the conversation with Mr Purchas about sick leave.  She confirmed that Mr Purchas did not tell her to direct staff not to take leave and agreed that it was an instruction to staff to be mindful of the level of sick leave. 

7. I found Ms Melrose an impressive witness.  She gave her evidence clearly and was prepared to make concessions such as the one described above.

Dr Anthony Dinnan

1. Dr Dinnan is a consultant psychiatrist who saw Ms Evans on 18 July 2003 for the purposes of providing a medico-legal report.  In that report he provided a diagnosis of Ms Evans’ condition as dysthymic disorder.  He stated that it was of moderate severity and in its own right would cause some impairment in day to day functioning, in concentration, memory, interest and motivation.  He opined:

   “The depressive illness (dysthymic disorder) is a consequence of the events in the workplace, regardless of any previous episodes of emotional disturbance from which she may have suffered.  I do not believe that any brief treatment which she may have had following the birth of her son some years ago is relevant to this current and ongoing psychiatric illness.”

2. Dr Dinnan opined that dysthymic disorder was a depressive disorder which was responsive to environmental factors as opposed to having a genetic component.  He stated that it could be of variable intensity.   He opined that the reaction to the circumstances which Ms Evans experienced was an appropriate emotional response.  Dr Dinnan believed that whilst her symptoms could have been considered to be those of an adjustment disorder which would have resolved itself within six months from the cause of the problem (the dispute with Mr Purchas and the NCA), this particular illness was ongoing and the symptoms were still present.  Whilst he believed that a positive outcome could be expected he felt the prognosis was still uncertain. 

3. Dr Dinnan was cross-examined particularly about the activity which the applicant carried out for Raytheon.  He agreed it was an activity that would require a high degree of concentration and that this would be consistent with the view that there was no continuing impairment.  But he felt that it was also consistent with the view that there was impairment, that the applicant could still continue with the position; that there was still an underlying level of emotional disturbance.  Dr Dinnan agreed that the applicant’s capacity to concentrate could be seen from her undertaking her course of study.  Dr Dinnan’s view was that the applicant would be in a position to return to full time work in the medium term.

4. In his report Dr Dinnan took issue with the report by Dr Walden who saw the applicant on behalf of the NCA and considered that some of the applicant’s problems may be due to concerns about her son and in particular his hyperactivity and possibly ADD.  Dr Dinnan states:

   “I do not agree with Dr Walden’s conclusions.  The evidence that the patient’s son had ADD is minimal to say the least, but sufficient for her to suggest a diagnosis while the patient’s ongoing symptoms are given much less weight.  The likelihood that her son had emotional problems consequent to the patient’s difficulties is not considered, and I think this should have been the first and most obvious comment to make.  My view is that Dr Walden has understated the case with regard to the patient’s ongoing difficulties, and there is nothing in her report which would cause me to change my opinion as expressed in this and previous report.”

Mr Veale

1. Mr Veale was the first witness called by the respondent.  He confirmed that he was the human resources manager at the NCA. 

2. Mr Veale deposed to the fact that he became involved in the dispute between Mr Purchas and Ms Evans in a mediation role on 27 July 2000.  He was in Sydney on other business and was advised that Ms Evans was unhappy about the way Mr Purchas had been managing her leave and general management behaviour.  He spoke first with Ms Evans and she told him about her concerns.  He thought he might be able to resolve the problem informally and was anxious that he could bring the two parties together.  He spoke to Mr Purchas who told him that he was very frustrated with Ms Evan’s attendance:

   “He said that if she would give him a commitment that she would make every effort to attend for work, he would accept and be happy with that verbal commitment.”

3. Mr Veale stated that he did not believe that Mr Purchas badgered Ms Evans at the meeting but he did agree that the discussion was heated and did seem to evolve around each party’s views as to what “commitment” meant.  He accepted that the issue was personal leave and carer’s leave and the impact it was alleged to be having on other staff.  He knew that the leave that had been taken by Ms Evans was within her entitlement.  Whilst he did not recall Mr Purchas asking Ms Evans not to take leave during the remainder of her contract he did say that he wanted her to attend more often.  He noted that Mr Purchas questioned Ms Evans on her commitment and the amount of carer’s leave to be taken.

4. I am satisfied that this witness, acting in good faith, attempted to resolve the dispute between the applicant and Mr Purchas.  The dispute he saw was one of “commitment”.  Mr Purchas requiring Ms Evans to commit to regular attendance, Ms Evans expressing the view that commitment was not based on an index of attendance.  The witness’ wish was to do all this informally and he set about his task on that basis.  He believed he had achieved a consensus on the basis of the applicant’s undertaking to abide by her contract.  He accepted that a major cause of Mr Purchas’ concern was Ms Evans’ taking of personal leave, most of which was carer’s leave.  He said that no-one asked Ms Evans not to take carer’s leave.  In response to a question from me Mr Veale indicated that if he had been asked to deal with this matter in his official capacity as human resources manager, he would have made more detailed investigations and handled the whole process very differently.

Jonathan Nicholl

1. Mr Nicholl was called to give evidence to confirm a minute dated 10 December 2001 annexed to his affidavit which he sent to Mr Veale.  This related to the accusation made by Mr Purchas in the meeting with Ms Monroe that she and Ms Evans had taken carer’s leave to care for each other’s children.  He confirms that Mr Purchas did make the allegation and that when that happened he indicated it should be evidenced and if no evidence existence or was available it should not have been raised or be further considered.  He stated that Mr Purchas indicated that he had been made aware of the allegation but did not have direct evidence himself. 

2. Mr Nicholl’s evidence would appear to corroborate the evidence given by the applicant and Ms Monroe that Mr Purchas had concerns about taking carer’s leave.   The accusations on the occasion of Ms Monroe’s appraisal were never substantiated but it would appear, never withdrawn.

Mr Purchas

1. Mr Purchas gave evidence from an affidavit sworn on 15 July 2003.  He deposed to be an acting manager of investigations and team leader for the Blade/Freshnet Reference with the ACC.  He stated that he did not directly supervise the applicant but team leaders at the time reported to him on any issues arising in relation to her and other staff.  It was his responsibility to gather information about and determine the strategic direction of each investigation and to plan for proposed operational workloads, staffing changes and replacements with input from team leaders.  Mr Purchas annexed to his affidavit a lengthy statement which he had given when this matter was first referred to the Human Rights & Equal Opportunity Commission.  He also annexed to his affidavit a number of extracts from his diary.  He said in that statement that Ms Evans was not directly working to him but to a team leader senior investigator Peter Baker.  Mr Purchas said that he had spoken to Ms Evans before her performance recognition program review and told her that he had a couple of issues that he wanted to talk about.  It was arranged that senior analyst Bilson be present for the review which he believes took place on 7 July.  He denied the meeting on 4 July referred to by Ms Evans and discussed at [10] of these reasons.  However, as Mr Purchas did agree that he had spoken to Ms Evans earlier I think it is very possible that a discussion took place between them around 4 July at which Mr Purchas expressed some concerns about her leaving taking.  Mr Purchas accepts that leave taking was one of the matters to be raised at the review.

1. Mr Purchas said that he had received complaints from Peter Baker and a Robert Chritchlow who had spoken to him about Ms Evans between the months of May and July 2000.  He deposed to the fact that he spoke to Ms Evans about the level of leave that she was taking and told her that he had received complaints from the team that the level of leave she was taking was effectively preventing her from supporting the team properly.  He stated that Ms Evans had told him that she was having a few problems and understood that she had not been at her desk.  Mr Purchas said that he never directed Ms Evans that she should not take carer’s leave.

2. Under cross-examination the witness accepted that he did criticise the applicant for the amount of leave that she was taking.  He stated that he mentioned the leave problem to her originally in a casual way and believed that the applicant accepted that she was not meeting her duties as an analyst because of her attendance.  He stated that he was attempting to find out whether the attendance pattern would continue in the future and if it was he would have to move her to something that was not so time critical.  Mr Purchas denies categorically that he required the applicant to be at her post 100% of the time.  Under cross-examination he stated that he may have said that he required her to give the job 100%.  He could have said “I want 100% commitment to the job”.  He also agreed that he may have used that term to Ms Monroe. 

3. Mr Purchas agreed that he had spoken with Ms Monroe about her attendance on 27 June.  He did not recall some of the other parts of the conversation that Ms Monroe had deposed to.  He stated that he did not have any idea about her family situation, the number of children she had or their health.  He denied that he asked if there was anything he could do to assist her in relation to carer’s leave.

4. Although Mr Purchas agreed that he was responsible for the applicant’s review and under cross-examination stated that in giving her a mark of 2 he had in mind that she couldn’t complete her work because she wasn’t there he stated that he had no input in relation to her contractual arrangements with the NCA and he could not remember whether he had a conversation with Mr Thompson about the renewal of her contract. 

5. It was Mr Purchas’ evidence that operational requirements necessitated the move of Ms Evans from that part of the operation which she was originally working in to Mr Birley’s team in August after she had been on further continued absence.  He also agreed that the move of Ms Evans was part of a general move of analysts around the department arising out of personality clashes between some other analysts.  He stated that he spoke to Mr Birley about transferring the applicant but he didn’t recall telling him that he was not satisfied with her commitment, however he believes Mr Birley would have known that Mr Purchas was not happy with Ms Evans’ attendance record.  He believed he would have told Mr Birley that Ms Evans was only there until the end of her contract in September.  He thought that Ms Evans was capable of fairly good work.

6. I have no doubt that any criticism Mr Purchas may have made of the attendance record of his staff was given on the basis of his own dedication to the job and his views as to what was required to properly carry out the important tasks assigned to the NCA.  He told the court that the conversation he had had with Ms Evans in July was triggered by complaints he had received from the team but in the event, as will be indicated below, the only evidence of complaints came from Mr Chritchlow. He was unable to say with any certainty at all now either what he had said or when he had said it.  The witness maintained his concern about the applicant’s attendance record which, in a memo to Mr Allen, the regional director, he had described as appalling.  Insofar as her attendance record is concerned up to the time that he conducted the performance review he admitted that the most accurate statistics indicated that she had taken eleven days leave in the previous three month period, which was the period he had looked at, and in response to a question from me agreed that this amount of time was not excessive. 

7. The witness agreed that he had made an unsubstantiated allegation to Ms Monroe in her review process the following year that she had rorted the carer’s leave with Ms Evans by living with Ms Evans and each of them looking after the other’s children.  This is something he was allegedly told by a member of the team.  I find that this conduct corroborates the submission by Ms Evans (and Ms Monroe) that Mr Purchas did have a problem with the concept of carer’s leave and therefore was, on the balance of probabilities, likely to have made the comments about it which both women have deposed to.

8. The witness agreed that at the meeting with Mr Veale he was seeking a commitment to the contract, being sufficient work to satisfy the team.  If Ms Evans could not provide this he intended to move her to another area.  Mr Veale deposed to a recollection of two strong willed people arguing about the interpretation of the word commitment.  The witness disputed this and preferred his own recollection based upon his diary notes.  I am satisfied that in this meeting the words used by Mr Purchas would have reasonably been understood by Ms Evans as requiring a commitment to do more than work to her contract.  In other words he left her under the reasonable impression that her resort to personal leave needed to be restricted if she was to satisfy this requirement.  However, I do not accept that Mr Purchas ever told Ms Evans that she was not allowed to take any further personal leave until the conclusion of her contract or that a complete prohibition on taking such leave was a reasonable inference to draw from the remarks which he made.

9. Mr Purchas relied heavily on his own diary entries to deny any conversation that would tend to indicate a discriminatory attitude.  It is not sufficient to dismiss this as self-serving although I am of the view that many of the entries leave one with that impression. The witness’ difficulty in recollecting some matters which were mentioned in the diary without recourse to it, compared with his ability to recall others that were not, but only unfavourable to the applicant, give cause for concern. While  I am sure the diary was  contemporaneous it appears to have been written with a clear eye towards future justification of any action recorded.  The court must look to see if there is any evidence which might corroborate the alternative version put by the applicant.  In my view such evidence exists in the evidence of Mr Veale and more directly in the notes taken by Ms Scott of her conversations with Ms Purchas on 10 August 2000 which notes the complaint that Ms Evans made that Mr Purchas had said “Had he known the circumstances he would not have employed her.”  The date of this meeting is sufficiently close to that of the alleged conversation that it would tend to corroborate, not that the words were used, but that Ms Evans story that the words were used was consistent.  If I then conclude that Ms Evans is generally a truthful witness (which I do) I can find that on the balance of probabilities Mr Purchas did use those words.

10. Under cross-examination Mr Purchas claimed that he did not consider the applicant’s e-mail of 26 July, in which she committed to her contract, made it sufficiently clear that she was going to stay until 30 September. This was, to my mind, an unfortunate misunderstanding.  It probably led to further pressure upon the applicant that influenced her to resign prior to the completion of her contract.

11. The witness did not agree that he said all the words Ms Melrose deposed to him having said but he maintained that his general concerns about leave taking were “known on the floor”. 

12. Mr Purchas’ evidence lasted over two days.  The main points which he sought to bring out were his non-responsibility for any contractual arrangements with the applicant and thus with the decisions which were made, firstly to extend her contract only for three months from July to September, and then shortly afterwards not to renew it after September.  He maintained that his concern arose out of complaints that came up to him from other team members and were directed at attendance generally and not personal leave, particularly carer’s leave.  It is interesting to note that although Mr Purchas had the power to prevent a member of staff taking flex leave he never exercised it in the case of Ms Evans.  Mr Purchas also sought to make it clear that his remonstrations with Ms Evans about commitment were not directed at her taking of personal and particularly carer’s leave.  He also sought to neutralise the effect of the evidence of the other witnesses called by Ms Evans whose statements tended to corroborate his concern about carer’s leave.  He attempted by use of his diary entries to prove that these alleged conversations did not occur. 

13. Having seen Mr Purchas in the witness box, watched him under cross- examination, compared his evidence to that of other witnesses and noted that certain evidence which I would have expected to have seen firstly in his diary and then in other affidavits indicating concern expressed from “the floor” about Ms Evans’ attendance record was not forthcoming, I have come to certain views about his evidence which I will express later in these reasons.

Wayne Thompson

1. Mr Thompson made an affidavit on 18 July 2003.  He stated that he is the Manager Corporate Services for the Sydney office of the ACC.  His position was during the NCA times titled “regional executive officer”.  He stated that as Manager, Corporate Services he is responsible for

   
   

   co-ordination of operation and corporate support within the Sydney office.  Mr Thompson deposed to having read Ms Evans’ affidavit of 6 March and agreeing that he attended a meeting with Felicity Scott and the applicant at which Ms Evans detailed her complaint regarding the alleged treatment of her by Mr Purchas.  He agreed that he attended a meeting on 17 August 2000 with the late Garry Allen and the applicant.  He stated that at that meeting Ms Evans repeated the complaints outlined at the previous meeting with Ms Scott and himself.  He denied that Mr Allen used the words attributed to him by the applicant. This was a reference to the comment alleged to have been made by Mr Allen after Ms Evans had complained that Mr Purchas had told her that if he had known about her child support requirements he would not have employed her that “we probably wouldn’t either”.  In oral evidence Mr Thompson said that he had written the letter of 25 July 2000 not extending Ms Evans’ contract.  He told the court that he was not aware that a performance review had played any part in that letter, he would not have seen the performance review.  He said that a number of issues were driven by budget cuts at that time.  He confirmed that no other analyst had their contracts not extended but he did indicate that an analyst (ongoing) had retired and was not replaced. 

2. The witness indicated that the decision not to renew Ms Evans’ contract was one made by a number of people right up to the regional director.  He agreed that there were no documents concerning the decision and indeed no documents concerning the implementation of the proposed budget cuts.  There was a general document about the budget cuts but this did not go into any specificity as to whom might be made redundant or whose contracts might not be renewed.  He said that he had no knowledge of any recommendations made to the regional director.  The witness indicated that he first became aware of what Mr Purchas’ concerns were with Ms Evans at the meeting that he attended with Ms Scott.  This was after the letter which he sent advising Ms Evans that her contract was not to be renewed.  He did not recall any specific meeting at which the non-extension of Ms Evans’ contract was discussed.  He said that Mr Purchas would have been at appropriate meetings and he did not recall Mr Purchas saying anything about Ms Evans’ performance or leave taking.  He was adamant that the decision was driven by budgetary considerations. 

3. This witness gave his evidence in a defensive manner.  He was anxious to indicate that he was not responsible for the decision not to renew the contract.  I was concerned about the methods by which that decision was reached.  If, as was asserted, it was only part of an overall budget reduction, one would have expected some documentation.  Where were the “options” usually canvassed in these circumstances?  Where was the authorisation given to the witness to write the letter?  Where were the minutes of the informal meetings he described?  In response to questions from me the witness indicated that the decision not to renew Ms Evans’ contract “would have been made” by Mr Allen.  But what documents were created to assist Mr Allen to come to this conclusion?  If there were none what oral advice was he given?  By whom?  This witness denies it was him.  Was it Mr Purchas?  The witness indicated that Mr Purchas may have spoken with Mr Allen but he did not know about any such discussions.  In the absence of documentary evidence corroborating his suggestion that this was  all down to budget cuts I am prepared to draw the inference that Mr Allen’s decision not to continue the applicant’s contract was influenced by Mr Purchas and his views as to Ms Evans’ commitment to her job.

Mr Chritchlow

1. Mr Chritchlow’s affidavit was made on 8 August 2003 and filed in court on 18 August when this matter had returned from an adjournment.  I do not know why the affidavit was filed so late, no evidence was given as to this.  I do note that on one of the very early days in these proceedings and before the evidence was filed, I pointed out to Counsel appearing on behalf of the respondent that despite Mr Purchas’ allegation that he was acting on information which had been given to him by team leaders from below there was no such evidence on the file at that time of complaints about Ms Evans’ attendance record.  Mr Chritchlow’s evidence is relevantly as follows.

   “Sometime in 2000 I recall raising some concerns about the applicant with Mr Michael Purchas.  Mr Purchas was a diligent manager who kept himself apprised (sic) of staffing issues regularly.  I recall advising Mr Purchas that I was concerned that the applicant was not providing sufficient support as an analyst to the investigators in my team.  I told Mr Purchas I believed the applicant lacked the requisite skills to perform her job.  I also told Mr Purchas that the applicant’s frequent absences from work were contributing to her failure to provide adequate support to the investigative team.  I informed Mr Purchas that even when the applicant was present at work she was often distracted and not paying adequate attention to her work duties.”

2. Under cross-examination this witness was unable to give any information as to exactly when this advice may have been given to Mr Purchas.  Mr Critchlow was not a team leader, he was an investigator.  He stated that he did not directly supervise the applicant.

3. The witness’ affidavit was vague.  The suspicion that it was provided in response to criticism from me that no evidence about the applicant’s performance had been filed is difficult to belie.  He could not recall when his concerns about Ms Evans were mentioned to Mr Purchas.  Under cross-examination the witness agreed that he did not mention to Ms Evans any complaints he had about her performance.  I am unable to give much weight to this affidavit.

David Shannon

1. Mr Shannon provided an affidavit dated 15 July 2003 in which he stated that he was the manager of operational support for the Blade team.  The purpose of that affidavit was to deny that he had done anything inappropriate in the meeting which he agreed he attended with Mr Birley on 14 August 2000 when Ms Evans stated that they demanded a guarantee of attendance from her.  Mr Shannon was also the CPSU workplace delegate.  Ms Evans was not a member of his union.  Nonetheless he did agree to assist her.  These matters are dealt with in the statement which Mr Shannon gave to the HREOC and which is annexed to his affidavit.  Mr Shannon confirms that Mr Purchas asked him in his role as OSG manager to attempt to ascertain from Ms Evans whether she would be staying with the NCA until the end of her contract.

2. Under cross-examination Mr Shannon stated that Ms Evans had raised the issue of leave taking with him but he did not recall her telling him that she had been told that it was unacceptable.  She did say that she was under pressure about caring for her young son when he was ill and that the suggestion either of a carer’s place in the workplace or working from home had been made.  He confirmed that Mr Purchas had told him that he, Mr Purchas, believed that Ms Evans was going to leave fairly speedily in order to return to full time education.  He could not recall whether Mr Birley told Ms Evans that he wanted to know whether she would be in every day.  He did say that at the time he had the meeting on 14 August he was not aware that the NCA had decided not to extend Ms Evans’ contract beyond 30 September.

Peter Baker

1. Mr Baker swore an affidavit on 15 July 2003 in which he stated that he was one of the operational team leaders on the Blade reference in the Sydney office of the NCA from October 1998 to the end of 2000.  He stated that he was the applicant’s operational supervisor while she was employed at the NCA.  He was responsible for tasking the applicant’s day to day duties in providing intelligence support to the operational team.  He said that he had no responsibility as far as assessing her work performance, nor administrative matters such as submission of leave forms and/or time sheets relating to her employment.  His affidavit is in principle a refutation of the suggestion by Ms Evans that she had expressed concerns to him about the move to Michael Birley’s team.  He also denied that he stopped talking to her after a discussion between her and Michael Purchas.  He denies that he changed his behaviour towards her in any way following a discussion with Michael Purchas.

2. In his oral evidence Mr Baker referred to the departure of a Mr Brew and Ms Melrose.  He noted they were not replaced.  He could not recall if there was a change in the workload of any other analyst or if 2000 was a time of financial stringency.  He recalls Ms Evans being moved but he did not recall a conversation with Mr Purchas about it. 

3. Mr Baker did say that he remembered comments being made by Mr Purchas about Ms Evans’ carers leave.  He had said that it was excessive and unacceptable.  These comments may have been made in June or July 2000.  He did not recall Mr Purchas saying he had required Ms Evans not to take any further carer’s leave.  He stated that he was only concerned with operational requirements.

4. Mr Baker’s evidence was as important for what it did not say as for what it did.  He gave no evidence about any complaints which were made by him to Mr Purchas about Ms Evans.  He did not say she was not performing adequately.  He did say that Mr Purchas had expressed concern to him about the amount of carer’s leave which Ms Evans was taking.  Mr Baker was not aware that Ms Evans’ contract had been non-continued as from 30 September.  Mr Baker said he was not told about this by Mr Purchas although his diary entry at [B19] suggests otherwise.

Michael Birley

1. Mr Birley provided an affidavit dated 16 July 2003 in which he deposed to being a senior investigator with the ACC and was one of the operational team leaders on the Blade reference in August 2000.  He stated that Ms Evans was moved to perform the role of team analyst in mid July 2000 and that at the time of her move the Blade team was heavily committed to a number of intensive investigations and was reliant upon analytical support to add value to them.  He stated that as a result of significant absences he considered this support was not forthcoming from the applicant.  Mr Birley adopted a statement which he made to the HREOC which actually was a minute written by him to Mr Veale with a copy to Mr Purchas.  It refers to the meeting on 14 August which he stated was called to establish whether or not Ms Evans was to take an active role in the investigations or whether she would be remaining at the NCA at the expiration of her contract.  He had been made aware of the approaching expiration of her employment contract by Mr Purchas.  He denied that he or Mr Shannon had tried to force her to reveal her intentions to them.  He denied he became agitated in the meeting.  He stated that Ms Evans walked out of the meeting rather than himself.  He denied any impropriety.  In his oral evidence he was questioned about the statements that he had made to Ms Evans that he had not seen any analytical data from her.  In his affidavit he said that she said to him “the matter will be resolved in the near future and I don’t want to discuss this any further.”

1. Mr Birley stated that he thought that Ms Evans had joined his team in mid July but this was only his memory.  He recalled a meeting with Mr Purchas about Ms Evans coming onto his team.  He stated that Mr Purchas did not say anything then about Ms Evans’ unacceptable amount of carer’s leave.  He said that he heard that from the floor.  However, he was not aware that there was a complaint that she was letting the side down.  He also did not know that Ms Evans’ contract had not been extended. 

2. Mr Birley’s evidence was strongly predicated on his recollection that Ms Evans had been in his team for a month prior to the 14 August meeting.  If he was wrong about that and she had (as she deposed) only joined the team on 10 August then the reason he gave for holding the meeting, her failure to provide analytical backup, is hollow and the only reason could be that he was asked to hold the meeting by Mr Purchas to enquire of her intentions about staying in the job until

   
   

   30 September.  In the light of the evidence of Ms Monroe and the general acceptance that the applicant’s move was part of a general movement of people around the teams which took place in early August, I am of the view that Ms Evans did not join Mr Birley’s team until about 10 August and thus the meeting was called at the instigation of Mr Purchas. 

Dr Walden

1. Dr Walden is a consultant psychiatrist who provided a report to the respondent’s solicitors on 15 July 2003.  In order to prepare that report she had a lengthy consultation with Ms Evans and read the pyscho social report provided by Ms Verender, the report of the treating general practitioner, Dr Bishara, other medical reports and the reports of Dr Dinnan.  In her evidence Dr Walden opined that she believed that Ms Evans had an adjustment disorder which manifested itself in a reaction in excess of normal to the events of August 2000 and significant impairment in occupational social functioning.  She stated in her report:

   “It seems probable that her symptoms of depression reached the level required for a DSM IV diagnosis of adjustment disorder with depressed mood.”

2. Dr Walden accepted that on the basis of the evidence available the adjustment disorder was causally related to her perception of events in the workplace.

3. Dr Walden opined that currently Ms Evans presented as being mildly depressed.  She believed she presented as a person who was unhappy with her life but she did not believe that unhappiness was an indicator of any psychiatric illness.  Dr Walden’s thesis was that the work which the applicant managed to carry out at Pine Gap and the work which she is currently carrying out at the University of Western Sydney in her employment there and as a student contraindicated the diagnosis of dysthymic disorder made by Dr Dinnan.  She opines that this diagnosis relates to an underlying depressive disorder.  It is a permanent depression of two years or more with significant functional disability.  Dr Walden was not prepared to accept that the extent of any functional disability found to exist in Ms Evans was significant enough to fall within the criteria for dysthymic disorder. 

4. Dr Walden opined that she had considered and rejected the diagnosis of dysthymia because she was not convinced that Ms Evans was seriously depressed whilst in Alice Springs or that her current depression was more than an expression of unhappiness.  She stated that there was a number of difficulties that Ms Evans had to face in Alice Springs which arose from the nature of her contract and the fact that she was in a strange town without any support.  Notwithstanding this, she managed to work there for over a year before returning to Sydney.

5. One of the most important tasks before me is to decide whether I accept the evidence of Dr Walden or prefer that of Dr Dinnan.  I will say immediately that both doctors were impressive witnesses.  They both gave their evidence in measured and reasoned tones.  They responded professionally to all questions asked.  In coming to the view which I have taken that I prefer the views of Dr Walden I in no way impugn the opinion of Dr Dinnan.  I am satisfied that the work which the applicant undertook in Pine Gap required a high degree of concentration and dedication which a person suffering from dysthymic disorder would be unlikely to be able to maintain for the lengthy period it was maintained by Ms Evans.  I accept Dr Walden’s evidence that the career choices made by Ms Evans to undertake a teaching degree and to work at UWS are sensible choices made by a person, who whilst mildly depressed, was not as serious disabled as one who would be suffering from dysthymic disorder.  I asked Dr Walden whether she thought that Ms Evans’ reluctance to return to work in the public service and in the intelligence gathering area was phobic.  She told me that she did not think it was.  She believed it was a fairly natural reaction to what occurred.  Dr Dinnan was of the view that Ms Evans was unable to return to full time work at the present time and may well not be able to do so for some time into the future.  Faced with the evidence of the job at Raytheon and the current status of her employment at UWS and her studies I find this difficult to accept. 

   
   

   I have been influenced by the fact that Ms Evans has not sought any specialist medical advice for her alleged problems nor has she sought or obtained from her general practitioner continuing medication.

Findings

1. I am satisfied from the evidence that Mr Purchas spoke to the applicant in early July prior to her performance review.  I am satisfied that in that conversation he indicated to her that he was concerned about her attendance record and that this would be a matter to be discussed at the performance review.  I am satisfied that Mr Purchas indicated that his concerns about the attendance record revolved around taking personal leave.  I am satisfied that at the performance review Mr Purchas was influenced in his grading of the applicant by his views as to her taking of personal leave and I believe she would have received a higher grading more consistent with that suggested by Ms Melrose and referred to at [41] of these reasons.  I am satisfied that Mr Purchas made the remarks about carer’s leave attributed to him by Ms Melrose and Ms Monroe.  I am satisfied from the wording of Mr Purchas’ own documents and the report of Ms Felicity Scott that Mr Purchas was unhappy with the concept of carer’s leave. 

2. I am satisfied that whilst Mr Purchas did not tell Ms Evans that she was required to be in attendance 100% of the time that his remarks concerning “100% commitment” to the position would have indicated to any reasonable person that he considered non-attendance for reasons of carer’s leave to be damaging to that person’s employment prospects within the organisation.

3. I am satisfied that the complaints which were made by Ms Evans were badly handled by the NCA.  I am satisfied that Ms Evans had a genuine reason to complain about Mr Purchas’ attitude towards her because firstly, she had not taken any leave which was not permitted by her contract and secondly even Mr Purchas agreed with me that the taking of eleven days leave in three months was not excessive.  I take particular note of the fact that Ms Scott did not give evidence.  A reading of her reports indicates that a real concern was raised about these matters.  We do not know why Mr Allen acted in the way he did.  He was unable to give evidence and it would be wrong to draw too many inferences about what he might have said.  However, I am fairly confident that I can draw an inference that he was influenced by Mr Purchas which is why Ms Evans’ very real complaints were not further progressed.

4. I am satisfied that Mr Veale made a genuine attempt to mediate between Mr Purchas and Ms Evans.  He was unable to do so.  In his position as head of human resources he should have done more.  He did not. 

5. I am not satisfied that Mr Purchas was acting on the basis of complaints about Ms Evans from the floor.  There is absolutely no evidence of this apart from that of Mr Critchlow which I have already discussed.  Most importantly, there was nothing in the evidence from Mr Baker who was Ms Evans’ team leader for most of the time.

6. I am of the view that the evidence indicates that Ms Evans could have expected that her contract would be renewed for a period of one year.  It seems that the reference upon which she was working was an important one.  Indeed it was because of its importance that Mr Purchas had his concerns about her attendance.  I find the circumstances surrounding her contractual arrangements to be most unsatisfactory.  Nobody was prepared to accept responsibility for what occurred.  An effort was made to blame the deceased Mr Allen.  But I believe that Mr Allen only acted on the advice of someone else.  That someone else could have been Mr Purchas.  I think in all probability the first decision just to renew her contract for three months was made in the knowledge of the budgetary cuts and in the knowledge that Ms Evans was shortly to be given a performance review by Mr Purchas.  I am of the view that the probabilities are that had she received a better report from Mr Purchas and had he not been so concerned about her attendance record that the contract would not have been determined on 30 September and would probably have been renewed until 30 June the following year.  I am unable to accept the suggestions made in the evidence that the non-renewal of Ms Evans’ contract, coming so soon as it did after the performance review happened in a vacuum.  The total lack of documentation suggests to me that the decision not to renew Ms Evans’ contract was taken, at least in part, because of her attendance record and the concerns relating to her attendance record arose, at least in part, from her taking of carer’s leave. 

7. I am satisfied that the conversation which took place between Mr Purchas and Ms Evans concerning her future intentions took place after she had been told that her contract would not be renewed. 

   
   

   I accept Ms Evans’ evidence that she told Mr Purchas that she was considering going back to full time education “just for something to say”.  It is not unreasonable to expect that Ms Evans would be shocked and distressed by the advice given to her concerning her contract.  I am not prepared to say that Mr Purchas deliberately used this conversation to suggest to those around him that Ms Evans was not proposing to remain in her position for the rest of her contract.  On the other hand I believe that the communications which passed between the two of them subsequent to these events and into August 2000 were such as to place unwarranted pressure upon Ms Evans.  I think that Ms Evans was perfectly entitled to respond to Mr Purchas in the manner which she did.  It must not be forgotten that Ms Evans never breached her contract.  She provided medical reports for all her absences.  She had available credits to utilise.

8. I have already stated that I am satisfied that Ms Evans did not intend to leave the NCA for Raytheon.  I am satisfied from her evidence that if she had been offered a continuation of her contract at NCA she would have remained there for the reasons which I have already given.  I am satisfied that Ms Evans had no immediate intention to leave the NCA and take up full time study in August 2000 or at any time prior to the 30 September 2000.

9. I am satisfied from the medical evidence that Ms Evans was unable to work from the time that she left the NCA until the time she commenced work with Raytheon.  I am satisfied that her reasons for leaving Raytheon were not connected with the sequelae of her experiences at the NCA in July and August 2000.  I am not satisfied that she has any continuing disability which would prevent her from undertaking full time employment earning no less than she was earning at the NCA and in those circumstances I will limit any special damages that I might award to the period between her leaving the NCA and her commencing at Raytheon.

Findings of law

1. The SDA does not outlaw all discrimination on the grounds of sex. What it does is to define discrimination in ss.5 and 6 and (relevantly for this case) 7A. Other sections of the Act which are relevant are ss.7B and 8. The scheme of the Act then goes on to describe certain areas in which discrimination is prohibited. Division 1 deals with discrimination at work. The relevant sections for the purposes of this case are ss.14(2) and 14(3A).

2. Unlawful discrimination described at s.14(2) of the Act is founded upon the definition of discrimination contained in s.7. Where that discrimination is alleged to be indirect discrimination it is subject to the reasonable test set out in s.7B. The prohibition on discrimination on the grounds of family responsibilities contained in s.14(3A) is subject to the definition of discrimination contained in s.7A. Section 7A is in the following form:

   7A Discrimination on the ground of family responsibilities For the purposes of this ActC:\doc-conversion\inputToHtml\index.html, an employer discriminates against an employee on the ground of the employee's family responsibilities if:

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

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

   (i) the family responsibilities of the employee; or

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

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

3. It is interesting to note that despite the rather general definition of discrimination on the grounds of family responsibilities the only prohibited conduct is that contained in s.14(3A) set out below.

   (3A) It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibilities by dismissing the employee.

4. The applicant argues that as there can only be one act of dismissal, the conduct prior to the dismissal must fall within s.14(2) and in particular 14(2)(a) and 14(2)(d)

   14 Discrimination in employment or in superannuation

   (1)…

   (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.

5. It is appropriate to look first to see whether or not the applicant has established that she was directly discriminated against under s.14(2). In other words, was she treated less favourably in the terms or conditions of employment that she was afforded or by being subjected to any other detriment by reason of her sex, a characteristic that pertains generally to persons of her sex or a characteristic that is generally imputed to persons of her sex in circumstances that are the same or not materially different from those in which the discriminator would treat or would have treated a person of the opposite sex.

6. Section 8 of the Act is in the following form:

   “8   Act done for 2 or more reasons

   A reference in subsection 5(1), 6(1) or 7 (1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.”

7. The conduct of the respondent which it is alleged constituted less favourable treatment was the criticism of Ms Evans for taking carer’s leave, the marking down of her assessment because of the taking of carer’s leave, the non-renewal of her contract after 30 September 2000 because of concerns about her taking excessive personal leave and carer’s leave and the harassment and pressure placed upon her between the time of that decision and the time she resigned from the NCA including the transfer from one team which was dealing with a current important and interesting reference to another team where her involvement would have been much less.

8. I accept the applicant’s submission that in considering discrimination in these circumstances the relevant comparator would be a male intelligence analyst, employed by the NCA in 2000 who took leave within his entitlements. The relevant characteristic that is prohibited under the SDA must be excluded when considering what the same or materially similar circumstances are: IW v City of Perth (1997) 191 CLR 1 by Toohey J at (33.8) and Kirby J at (67.8):

   “It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment… could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act.”

   See also Commonwealth v HREOC (Dopking No 1) (1993) 46 FCR 191 and HREOC v Mt Isa Mines (1993) 46 FCR 301.

9. In the evidence which was called before me the shedding of a number of members of staff was discussed.  It was never asserted by the respondents that any member of staff had been dismissed or had his contract not renewed by reason of taking leave to which he was entitled.  I appreciate that it is for the applicant to prove her case and that it could be argued that she should have produced clear evidence that all of the male members of staff who did leave left for other reasons.  But to a certain extent this is asking the applicant to prove a negative and more importantly the NCA is an organisation whose activities are clouded in secrecy.  I have little doubt that attempts to obtain the personnel records of persons who work within the organisation would have been strongly resisted, to my mind rightly.  If the respondent wished to assert that it had no patience whatsoever for people who took their contractual entitlements and did not treat them less favourably than the applicant it could have done so with no difficulty whatsoever.  I am prepared to draw the necessary inference noting, as I do, that the applicant tendered as Exhibit 5 an Australian Bureau of Statistics document entitled “Labour Force Status and Other Characteristics of Families” which showed that women take twice as much time as men on what was described as “committed activities”  otherwise described in the document as “child care.”  I am satisfied that discrimination has been made out.

10. The next matter for consideration is whether or not I would find that Ms Evans was constructively dismissed. If I find she was constructively dismissed I would then have to consider whether or not that dismissal was made in breach of s.14(3A). The concept of constructive dismissal, seminally defined by Lord Denning in Western Excavating v Sharp (1978) 1 QB 761 at [769A], has been followed in Australia in such cases as Mohazab v Dick Smith Electronics Pty Limited (No 2) (1999) 88 IR 259, Allison v Bega Valley Council (1995) 63 IR 68 and been applied to cases involving alleged sexual discrimination by the Federal Magistrates Court in Mayer v Ansto [2003] FMCA 209 at [74] and Escobar v Rainbow Printing Pty Limited (No 2) [2002] FMCA 122. I am satisfied that the applicant was subjected to a series of actions by the NCA which caused her to have a reasonable belief that the taking of further carer’s leave might result in the termination of her contract and indeed may have resulted in the decision not to renew her contract after 30 September 2000. I am satisfied that the grievance procedure failed Ms Evans and that the remarks made both by Mr Purchas and Mr Allen constituted a significant breach of the contract by the employer which went to the root of the contract. Neither Mr Purchas nor Mr Allen had any right whatsoever under the common law of employment or the actual contract entered into between their organisation and Ms Evans to even criticise Ms Evans for taking carer’s leave within her entitlements. I accept that if Ms Evans had indicated to Mr Purchas that she had upcoming liabilities to take carer’s leave, for example, because her child needed to go into hospital for some elective surgery, he would have been within his rights to suggest to her that she moved from one team to another. That is not what occurred. Ms Evans had no reason to believe that she would have to take further carer’s leave, she wished to protect her own position in case she did. Notwithstanding that she was on sick leave herself because of stress arising out of Mr Purchas’ criticism of her, she was moved without notice. I am satisfied that Ms Evans was constructively dismissed.

1. I am satisfied that the pressuring of Ms Evans, the failure to renew her contract, the movement of her from one team to another and the meeting which took place with the new team leader at which reference was made to carer’s leave as well as the other matters which I have already found constituted less favourable treatment in the context of s.14 also constituted less favourable treatment in the context of s.7A. There is ample evidence that carer’s leave was considered by Mr Purchas to be some sort of special case that did not apply to other personal leave. That evidence comes not only from the applicant but also from Ms Monroe and Ms Melrose and resulted in badgering and harassment and intimidatory conduct in respect of all three of them. There is no evidence whatsoever that this type of activity was extended against persons who took personal leave for other reasons.

2. I am therefore satisfied that the NCA was in breach of s.14(3)A in that it discriminated against Ms Evans on the grounds of her family responsibilities by dismissing her. I do not accept that Ms Evans was not treated less favourably because Mr Purchas treated Ms Monroe in a similar fashion. Firstly, I believe that the less favourable treatment was more severe in the case of Ms Evans who is not as strong a personality as Ms Monroe. Secondly, although Mr Purchas threatened not to renew Ms Monroe’s contract, it was in fact renewed. I do not think Ms Monroe is a comparator within the context of s.7A as she did have family responsibilities. The proper comparator is the employee without family responsibilities who took personal leave within his or her (because there is no differentiation with regard to sex in this sub section) entitlements.

3. The applicant has a made a claim in the accrued jurisdiction for breach of contract of employment.  I am quite satisfied for the reasons already stated that the NCA did breach its contract of employment with Ms Evans.  The contract provided for Ms Evans to take personal leave including carer’s leave.  It is accepted that all the leave which she took was within her entitlements.  She should not have been the subject of any of the treatment meted out to her by the NCA.

Damages

1. Although I am satisfied that Mr Purchas has no personal animosity against Ms Evans and that what he did, he did in what he believed to be the best interests of the NCA, the cases have made it clear that motive or intention to discriminate is not a requirement for a successful claim: Bligh v State of Queensland (1996) EOC 92-848; City of Perth v An Individual Member of People Living with Aids (1992) 29 ALD 235; Travers v State of New South Wales (2001) 163 FLR 99; De Simone & De Simone Consulting Group Pty Ltd v Bevacqua (1995) 69 LIJ 688. 

   
   

   I have not been asked to make any award of punitive or exemplary damages and so I will consider the case in the context of the current authorities. 

2. In anti-discrimination cases where no medical evidence is called or any serious medical sequelae alleged damages are given for hurt and humiliation Federal Magistrate Driver said in Mayer supra

   “It is important to consider that damages for non-economic loss should not be minimal as this would to tend to trivialise or diminish respect for the public policy behind anti-discrimination legislation; see Alexander v Home Office [1998] 1 WLR 968 at 975; Bonella v Wollongong City Council [2001] NSWADT 194 at 121.”

3. In this case medical evidence has been produced.  The consensus of opinion is that the applicant suffered clinical depression as a result of the actions of the NCA which lasted at least up until the end of 2000. 

   
   

   I have found that any residual depression would not prevent her from working full time if she wished to do so and she did not suffer from the dysthymic disorder which Dr Dinnan supported.  In my view, the appropriate figure for general damages in this case should take into account the effect of the actions of the NCA upon the applicant.  I note that it is over ten years since Wilcox J awarded damages of $20,000.00 in Re Susan Hall, Dianne Susan Oliver and Karyn Reid And: A & A Sheiban Pty Ltd; Dr Atallah Sheiban and Human Rights and Equal Opportunity Commission No NG 1185 of 1988 Fed No 65 Sex Discrimination 20 FCR 217 and that in Rugema v Gadston Pty Limited (1997), (unreported Commissioner Webster) the sum of $30,000.00 in non economic losses was awarded for major depressive disorder.  It is my view that the sum of $25,000.00 is the appropriate award today for this applicant. 

4. In regard to economic loss I am satisfied that this should be limited to the period between 19 August 2000 and 7 January 2001.

5. The parties provided me with schedules of wage loss.  Between

   
   

   19 August 2000 and 7 January 2001 the applicant lost a weekly wage of $809.88 gross. She also lost superannuation payments on that wage. The total amount of the wage loss is $16,197.60. Interest on the wage loss is awarded pursuant to s.51A of the Federal Court Act 1976 (Cth) from 8 January 2001 and in accordance with the general rule discussed by Davies J in Namol Pty Ltd & Anor v AW Baulderstone Pty Ltd & Ors (1993) 119 ALR 187 and in accordance with the rates prescribed by Schedule J to the Supreme Court Rules (NSW). The interest on the wage loss is $4,167.89. Superannuation is $1,295.81 interest thereon from 8 January 2001 is $333.43. In addition the applicant submits that she was underpaid in the period commencing 1 June 2000 because at page 32 of the NCA Certified Agreement 2000-02 there is an automatic transition from the figure at which Ms Evans was being paid up to

   
   

   30 June 1999 – $41,563 to $43,433. However, the Certified Agreement comes into effect from certification, which was after the applicant had left the NCA. This claim is not made out. It would seem to me that the period between 19 August 2000 and 30 September 2000 should probably constitute a “notice” period. In those circumstances payment for this period would constitute an eligible termination payment for the purposes of the Income Tax Assessment Act. No doubt the respondent’s human resources and pay department can deal appropriately with this matter.

6. The applicant has asked for an apology. At the end of the hearing I expressed a view which I have expressed previously in these matters.

   
   

   I do not believe there is much utility in forcing someone to apologise. An apology is intended to come from the heart. It cannot be forced out of a person. If the person does not wish to give it then it is valueless.

   
   

   I suggested to the respondent that, subject to an appeal, it may well feel after examining these reasons that its EEO procedures had failed in the particular circumstances of this case and that it should express its apology to the applicant. These cases are not just about the recovery of damages. They serve an educational purpose. In this case the educational purpose would include the respondent coming to a realisation that howsoever important the activities of the NCA may be, they should not be conducted in such a way that they breach both the contract entered into between the organisation and its staff and the Sex Discrimination Act. I am sure that those now in charge at the NCA will understand this, will reflect upon it and at the appropriate time make Ms Evans the apology which I believe she deserves to receive.

7. I will hear parties as to costs.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  5 September 2003