Fenton v Hair and Beauty Gallery Pty Ltd
[2006] FMCA 3
•20 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FENTON v HAIR & BEAUTY GALLERY PTY LTD & ANOR | [2006] FMCA 3 |
| HUMAN RIGHTS – Pregnancy and disability discrimination in employment – applicant falling ill when pregnant – applicant subsequently sent home when she attended the workplace – applicant dismissed at a later date when she failed to attend work – whether – the sending – home or the dismissal of the applicant were because of her pregnancy or a disability considered. EVIDENCE – Standard of proof in human rights proceedings – relevance of the Briginshaw principle. |
| Disability Discrimination Act 1992 (Cth), ss.5, 15 Evidence Act 1995 (Cth), s.140 Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO Sex Discrimination Act 1984 (Cth), ss.7, 14 |
| Duhbihur v Transport Appeal Board & Anor [2005] NSWSC 811 |
| Applicant: | ANNE FENTON |
| First Respondent: Second Respondent: | HAIR & BEAUTY GALLERY PTY LTD KATHRYN HUNT |
| File Number: | SYG2834 of 2004 |
| Judgment of: | Driver FM |
| Hearing dates: | 1 – 2 December 2005 |
| Date of Last Submission: | 21 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Beckett |
| Solicitors for the Applicant: | Employment Lawyers |
| Counsel for the Respondent: | Mr Easton |
| Solicitors for the Respondent: | Henderson Taylor Workplace Lawyers |
ORDERS
The respondents shall pay damages to the applicant in the sum of $1,338.
The respondents shall pay interest up to judgment on the damages awarded pursuant to order 1 at the rate of 10.5 per cent, on and from 29 December 2003.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2834 of 2004
| ANNE FENTON |
Applicant
And
| HAIR & BEAUTY GALLERY PTY LTD |
First Respondent
KATHRYN HUNT
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant Anne Fenton is a former employee of the respondents. The first respondent is the corporate entity which employed Ms Fenton and operated the business. The second respondent, Kathryn Hunt, is the owner and managing director of the first respondent.
Ms Fenton brings these proceedings pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). She alleges direct pregnancy discrimination contrary to ss.7(1) and 14(2)(a), (c) and (d) of the Sex Discrimination Act 1984 (Cth) (“the SDA”). Essentially, Ms Fenton alleges that she was sent home without pay and then dismissed from her employment by reason of her pregnancy. As secondary arguments, Ms Fenton also alleges direct sex discrimination and direct disability discrimination contrary to ss.5(1) and 15(2)(a), (b), (c) and (d) of the Disability Discrimination Act 1992 (Cth) (“the DDA”). Ms Fenton seeks monetary compensation for economic and non economic loss, interest and costs. There is also a minor contractual claim brought in the Court’s accrued jurisdiction, relating to Ms Fenton’s termination benefit calculation.
The respondents deny any unlawful discrimination and seek orders that the application be dismissed with costs.
The proceedings centre upon events on three days in December 2003. On 18 December 2003 Ms Fenton (who was then pregnant) became unwell in the workplace and sought medical attention. She obtained a medical certificate from her general practitioner. There is a dispute between the parties as to what Ms Fenton told Ms Hunt about the sick leave she was granted or required and when Ms Hunt first saw the medical certificate. On Monday, 22 December 2003 Ms Fenton reported to work but was sent home. The respondents say that because Ms Hunt understood that Ms Fenton was on sick leave for one week she had been replaced until 29 December 2003. Ms Fenton says that she understood that she was expected to work on 22 December 2003 but was told on that day that she had been replaced until 2 January 2004. On 29 December 2003 Ms Fenton did not report for work. Ms Hunt contacted her. There is some dispute between the parties as to what was said. It is common ground that Ms Hunt indicated that Ms Fenton was required to attend the workplace and that Ms Fenton did not attend. Ms Fenton says that she was dismissed. The respondents say that Ms Fenton abandoned her employment.
The evidence
Ms Fenton relies upon her own affidavit of 4 July 2005 which details the asserted facts supporting her claim and her affidavit of 8 November 2005 which responds to the respondents’ affidavits. She also relies upon the affidavits of her husband (at the relevant time, her fiancé) Cory Fenton made on 4 July 2005 and 8 November 2005. Anne Fenton and Cory Fenton were both cross-examined on their affidavits.
The respondents rely upon two affidavits by Kathryn Hunt made on 20 October 2004 and 8 August 2005, as well as affidavits by Melissa Green and Sonya Craig, both made on 6 August 2005. The respondents also rely upon the affidavit of Leisa Mackrill made on 7 August 2005. Ms Mackrill was required for cross-examination but was unable to attend due to a serious family illness. I received her affidavit with reduced weight. Sonya Craig was not required for cross-examination. Both Ms Hunt and Ms Green were cross-examined on their affidavits.
Anne Fenton
Ms Fenton is a hairdresser with 18 years experience. She deposes that she commenced employment on a permanent full time basis for the Hair & Beauty Gallery on 18 November 2002. She deposes as to her income and her responsibilities at the Hair & Beauty Gallery. She held a responsible position as a senior stylist at the salon.
Ms Fenton deposes that she became pregnant in the latter part of 2003 and informed Ms Hunt of her pregnancy in September 2003. They discussed the arrangements that would be made, including the provision of maternity leave and a flexible return to work after the birth of Ms Fenton’s baby. They also negotiated new arrangements for Ms Fenton’s remuneration which, in effect, provided her with increased income. Nevertheless, Ms Fenton deposes that she “perceived that Ms Hunt had an unfavourable attitude towards me being pregnant and proposing to take maternity leave”.
Ms Fenton deposes as to the events on Thursday, 18 December 2003. She had come to work as normal. Ms Hunt had called to say she was running late and asked her to attend to one of her clients. Another employee was also unexpectedly absent so Ms Fenton was alone in the salon. Ms Fenton deposes that she felt numbness in her hands and began to feel faint. She collapsed. A client and an employee from a nearby medical centre assisted her to go to the medical centre to see a doctor there. This was Dr Zavaras. Ms Fenton arranged for the client who assisted her to call Ms Hunt to tell her that she had been taken ill. Once told, Ms Hunt had contacted Cory Fenton and also Ms Fenton’s mother.
Ms Fenton deposes that Dr Zavaras had suggested that the collapse might have been caused by low blood pressure and also indicated the possibility of carpel tunnel syndrome. Dr Zavaras suggested that Ms Fenton see her treating general practitioner, Dr Lewis. Ms Fenton then went to see Dr Lewis. He provided a medical certificate for 18 and 19 December 2003. This is annexed to Ms Fenton’s affidavit. Ms Fenton deposes that she spoke to Ms Hunt after seeing Dr Lewis on 18 December 2003 and told her:
I should be back in next week.
Ms Fenton deposes that she also attempted to contact Ms Hunt on Saturday, 20 December 2003 to say she would not be going to work on that day but was unable to reach her. Ms Fenton deposes that she sent a text message on Cory Fenton’s mobile.
Ms Fenton deposes that she returned to work on Monday, 22 December 2003 on the basis that she had told Ms Hunt she would be in that week. Mondays were normally a rostered day off but because the preceding week had been a short week due to public holidays Ms Fenton understood that she would be rostered on on the Monday. Ms Fenton deposes that Ms Hunt asked her what she was doing there and told her that she had been told by Ms Fenton that she would not be back until 2 January so she had replaced her. She deposes that she attempted to hand Ms Hunt a medical certificate from Dr Lewis but Ms Hunt refused to take it. She deposes that Ms Hunt then said words to the following effect:
I don’t need you now until 2 January.
Ms Fenton returned home. She deposes that she was concerned about her employment and contacted Ms Hunt again to ask if she had been fired. Ms Hunt said, no, she had not but Ms Fenton had been replaced until 2 January. Ms Fenton asked about her pay and was told that she was on leave without pay. Ms Fenton deposes that she then rang the Department of Industrial Relations and received advice to write a letter of demand. Annexed to Ms Fenton’s affidavit is a handwritten letter of demand to Ms Hunt from Ms Fenton and dated 24 December 2003.
Ms Fenton deposes as to a further conversation between her and Ms Hunt on 22 December 2003. She deposes that Ms Hunt told her that she was replaceable and she told Ms Hunt that she was going to seek legal advice.
Ms Fenton deposes that on 29 December 2003 she had an obstetrician’s appointment. She deposes that on that day Ms Hunt telephoned her and asked why she was not at work. Ms Fenton said that Monday was her day off and she understood she was not to return until 2 January. Ms Hunt had said that Ms Fenton was due back on 29 December and Ms Hunt was having a week’s holiday so Ms Fenton was required. Ms Fenton said she had an obstetrician’s appointment. Ms Hunt asked when Ms Fenton was going to attend the workplace. Ms Fenton deposes that Ms Hunt was “effectively” shouting so she hung up. When Ms Fenton returned home from her obstetrician’s appointment later on 29 December 2003 there was a message on her answering machine from Ms Hunt. The message requested her to call Ms Hunt at work as soon as possible. Ms Fenton telephoned Ms Hunt and deposes as to the following conversation:
Hunt: I rang you this morning for you to come into work. You refused so I have grounds for termination of your employment. I’ve rung Industrial Relations and they said I have grounds to terminate you. Your employment is terminated.
Fenton: You can’t terminate me on my day off and over the phone.
Hunt: I can do whatever I want.
Fenton: I want to come and pick up my things.
Hunt: If you step foot in the salon, I’ll call the police. Cory can pick them up.
Ms Fenton then deposes as to the retrenchment benefits she received from the Hair & Beauty Gallery, in non economic loss and her efforts to obtain alternative employment. Among other things, Ms Fenton deposes that she was forced to indefinitely postpone her honeymoon due to being unemployed.
I permitted Mr Beckett to lead short additional oral evidence in chief from Ms Fenton. This related to her obstetrician’s appointment on 29 December 2003, her normal wages when working for the respondents, the tingling in her hands on 18 December 2003 (which Ms Fenton now associates with her pregnancy and possible low blood pressure) and her work plans prior to the termination of her employment.
Under cross-examination Ms Fenton conceded that her relationship with Ms Hunt prior to the events of December 2003 had been good. She confirmed that she informed Ms Hunt of her pregnancy on 22 September 2003 and they discussed arrangements for leave and part time work following Ms Fenton’s confinement. Ms Hunt also agreed to revise leave arrangements after Ms Fenton decided to move her wedding forward to 17 January 2004. This necessitated Ms Hunt to changing her own leave arrangements. Ms Fenton agreed that Ms Hunt had planned to take holidays in January which she had changed following Ms Fenton’s revised wedding plans, but she denied knowing that Ms Hunt had moved her leave to the week of 29 January 2004. Ms Fenton stated that the changes discussed had been agreed in September or October 2003. Ms Fenton was shown exhibit R1, which I accepted as a page from the salon appointment book for the period 29 December 2003 to 1 January 2004. Ms Fenton accepted that this showed Ms Hunt as being on holidays for that week but denied being aware of that at the time. Ms Fenton also accepted that the appointment book showed clients of hers booked in on Monday, 29 December 2003, including several personal clients. However, she denied being aware of that at the time.
As to the events on 18 December 2003, Ms Fenton said that she had discussed the tingling in her hands with Ms Hunt following her return from seeing Dr Zavras and may have said that it was unlikely to be carpel tunnel syndrome. Ms Fenton agreed that the medical certificate she received from Dr Lewis was not consistent with what she had told Ms Hunt after getting it. Ms Fenton confirmed that she had told Ms Hunt that she had a medical certificate for “the rest of the week”. She disagreed that she had left her return to work uncertain.
Mr Easton asked Ms Fenton why, if her return to work were certain, she needed to contact Ms Hunt again on 20 December 2003. Ms Fenton said that this was an act of politeness. When questioned as to the form of this message Ms Fenton agreed that it was a picture text message.
Ms Fenton denied that she was told by Ms Hunt on 22 December 2003 that she had been replaced until 29 December. She insisted that she was told she was replaced until 2 January. Ms Fenton was pressed on why she queried in a second conversation whether she had been sacked if it was clear that she was to return to work on 2 January. She said that she was troubled and uncertain about her position. She confirmed that she subsequently contacted the Department of Industrial Relations for advice and sent a letter of demand in relation to her pay. She was not concerned about the adverse impact this would have on her relations with Ms Hunt because she felt that the relationship had already deteriorated. She regarded their conversations on 22 December as unpleasant. She agreed, however, the conversation at the salon on that day had not been heated as a client was present.
Mr Easton asked Ms Fenton about the events on 29 December 2003. Ms Fenton said that her obstetrician’s appointment was not the only reason she could not go into work that day. The other reason was that she regarded it as her rostered day off. She had returned from the obstetrician’s appointment between 12.30pm and 1.00pm and it would have been possible for her to go into work in the afternoon. She said that she was not given the opportunity to volunteer to work in the afternoon. She denied that Ms Hunt had requested her to attend the workplace in their telephone conversation after Ms Fenton returned from her obstetrician’s appointment and denied that Ms Hunt had warned her that if she refused to attend, her employment could be terminated. When pressed, Ms Fenton was not sure whether Ms Hunt had asked her when she was going to attend the workplace and then denied that words to that effect were used. However, she conceded that she had been wrong in that denial when shown paragraph 20 of her first affidavit. Ms Fenton agreed that she had told Ms Hunt that she would “see her in court” in their second telephone conversation on 29 December. She said that this statement was based in part on the advice she had obtained from the Department of Industrial Relations following their discussions between 18 and 22 December 2003. Ms Fenton agreed that she had no intention of going to work on 29 December 2003 but said that if she had been asked “nicely” she might have gone in.
Mr Easton asked Ms Fenton about her wedding and honeymoon arrangements. Ms Fenton said that she altered her honeymoon arrangements a day or two after her “sacking”. She confirmed that she did not start looking for alternative employment until 19 January 2004. She did not anticipate any difficulty in finding alternative employment but was unable to find any prior to her confinement. She had given up looking for work by 3 March 2004 when she made her complaint to HREOC. She confirmed that her baby was born on 27 May 2004 and that thereafter she was not available for employment.
In re-examination Ms Fenton said that most of the writing on exhibit R1 appeared to be that of Ms Hunt although some of her own handwriting also appeared. She confirmed that the page appeared to be taken from the salon appointments book and that entries were made in pencil so that they could be altered or removed as necessary. Ms Fenton confirmed that Mondays were normally her rostered day off and that if a Monday was a public holiday she lost that rostered day off. She said that if another day was a public holiday she still had the benefit of her rostered day off on Mondays although the position in the Christmas week was different because it was a short week.
Cory Fenton
Mr Fenton deposes as to his knowledge of the events on 18 December 2003 and upon his collection of Ms Fenton’s effects from the salon after she was terminated on 29 December 2003. His affidavit evidence corroborated that of Ms Fenton. Under cross-examination he was a disarmingly honest witness. He stated that he and Ms Fenton did not discuss her employment between 18 and 29 December 2003 as he did not regard it as his business. He was, however, certain that Ms Fenton had told him that she had been replaced until 2 January 2004. He overheard the conversation Ms Fenton had on the telephone on 22 December 2003 where she had raised “five or six hypotheticals”. However, he did not hear the detail of this conversation as he was in the bedroom. Mr Fenton said that on 29 December 2003, after Ms Fenton had returned from her obstetrician’s appointment, she had called Ms Hunt. She reported to him that Ms Hunt had asked her to come into the workplace. He could not recall that Ms Fenton had told him she refused to attend. He understood that the day was Ms Fenton’s rostered day off. He did not believe before that day that his wife’s employment was at risk.
Significantly, Mr Fenton contradicted his wife in relation to his change of honeymoon plans. He said that their honeymoon had been abandoned in September/October 2003 when the wedding had been brought forward. He also said that on 29 December 2003 he had anticipated his wife would be going to work the following day.
Mr Fenton was shown exhibit R4 and confirmed that this was his mobile telephone account for the December period. He confirmed that Ms Fenton had sent a picture text message using his phone on 20 December 2003. He said that he had received no reply and did not know whether the message had been received. He said that a facility existed to confirm delivery but, at the time, he did not have that facility on his phone.
Kathryn Robyn Hunt
The significant evidence from Ms Hunt is contained in her second affidavit. She deposes that she has two small children and was supportive of Ms Fenton (then known as Ms Bourke) in her pregnancy. She had arranged to alter her working arrangements and remuneration and had offered to accommodate part time work if required. She deposes that Ms Fenton had experienced some problems with her pregnancy and she had been supportive of her. She deposes that she had agreed with Ms Fenton that she should not take any risks and would work when she felt able to.
Ms Hunt deposes as to the events on 18 December 2003. She deposes that a client (Carolyn Clancy) telephoned her at about 9.20am and told her that Ms Fenton had had to go to the doctor and that the shop was unattended. Ms Clancy had put a note on the door saying that the salon was closed due to ill health. Ms Hunt deposes that about half an hour after she arrived at the salon Ms Fenton returned from seeing Dr Zavras and reported on the numbness in her hands and her collapse. Ms Fenton then left to see her GP. They had a further conversation on the telephone after Ms Fenton had seen Dr Lewis and Ms Fenton had told her that Dr Lewis did not think that she had carpel tunnel syndrome. Ms Fenton had said that the doctor told her to rest and had given her a certificate for a week off. She had asked Ms Fenton about working over Christmas and Ms Fenton had said that if she felt better she would ring. Ms Hunt deposes that as it was coming up to Christmas she put an advertisement in the paper for a temporary staff member to replace Ms Fenton for the Christmas week. She got no response. She did find an apprentice who could provide some assistance.
Ms Hunt deposes as to the events on Monday, 22 December 2003. Ms Fenton attended the workplace and Ms Hunt enquired why she was there. Ms Hunt deposes that she told Ms Fenton that she had been “covered” until 29 December and that Ms Hunt was on holidays from then. She advised Ms Fenton to take the week off that her doctor had given her. Ms Fenton had then left the salon. Ms Hunt deposes as to a further conversation with Ms Fenton on about 24 December 2003 when they discussed the events of 18 December 2003. Ms Fenton had told her that she was unable to let her know of her illness at the time because she had fainted and was carried out.
Ms Hunt deposes as to the events on 29 December 2003. She deposes that she went into work to check on Ms Fenton and when she found that she was not there she rang her at home. She deposes as to the following conversation:
Hunt: Where are you?
Fenton: You told me to take until January off.
Hunt: Are you still sick?
Fenton: No.
Hunt: Well, I am on holidays. I need you to come in.
Fenton: No. I’m not coming in until 2 January 2004. You told me not to come in until then.
Hunt: You know that’s not true. I was supposed to go on holidays, as you know, and I have booked clients in for you.
Fenton: I’m not coming in.
Ms Hunt deposes that a few minutes later Ms Fenton rang again and their conversation continued in a similar vein. Ms Fenton insisted that it was her day off and Ms Hunt insisted that as it was a short week she was required to work. By this stage, Ms Hunt was becoming angry. She deposes that she rang the Department of Industrial Relations and was advised that if Ms Fenton was fit to work and had no genuine reason for coming in and refused to come in she had abandoned her position. The IR advised Ms Hunt to give Ms Fenton another chance to attend the workplace and if she refused that, she could dismiss her.
Ms Hunt deposes as to a third conversation on the afternoon of 29 December 2003 as follows:
Hunt: I need you in.
Fenton: No.
Hunt:If you do not come in, I will have no choice but to let you go.
Fenton: That makes it easy for me. I’ll see you in court.
Ms Hunt deposes that she was disappointed to lose Ms Fenton, especially during the Christmas period. She denies that she had an unfavourable attitude to Ms Fenton’s pregnancy.
I permitted Mr Easton to lead short additional evidence from Ms Hunt. She denied receiving a picture text message from Mr Fenton’s mobile telephone on 20 December 2003.
Under cross-examination Mr Beckett asked Ms Hunt at some length about exhibit R1. Ms Hunt insisted that she had provided the whole appointment book for the salon for the relevant period to HREOC in relation to Ms Fenton’s complaint. She did not know why the page for the week of 29 December 2003 had been removed from it and why only that page remained. She had not seen the book since she had provided it to HREOC. She agreed that it was impossible to say from looking at exhibit R1 when particular entries were made. She stated, however, that she would have entered in her holidays for the week of 29 December in October or November 2003.
Mr Beckett asked Ms Hunt about rostered days off. Ms Hunt said that staff had different rostered days off and that Ms Fenton’s rostered day off was a Monday. The arrangement changed somewhat over time and Mondays became fixed as time progressed for Ms Fenton. Ms Hunt said that the Christmas period was an exception to the general rule because of the number of public holidays and because it was a busy period. She said that during the Christmas period rostered days off were not taken. She agreed that before 18 December 2003 it had been arranged for Ms Fenton to work on Monday, 22 December 2003. She denied that the following Monday, 29 December 2003, was a normal rostered day off. Ms Hunt said that it had been agreed in October or November that Ms Fenton would work on 29 December.
Mr Beckett asked Ms Hunt about the events on 18 December 2003. She denied that her immediate concern was about her cash till and her stock in the absence of staff. She agreed that Ms Fenton had collapsed but understood from what a client had said that Ms Fenton had not fainted. Dr Zavras had attended the salon on the afternoon of 18 December and had suggested to Ms Hunt that Ms Fenton was suffering from anxiety. Ms Hunt denied seeing Dr Lewis’ medical certificate on 22 December 2003. She said that she saw it for the first time on 29 December 2003.
Mr Beckett showed Ms Hunt exhibit A7 and Ms Hunt acknowledged that this was a letter sent by her to Ms Fenton on 12 January 2004. Mr Beckett asked Ms Hunt about the contents of that letter. Ms Hunt said that the letter was responsive to the letter of demand written to her on 24 December 2003. In response to a question from me, Ms Hunt said that she had received the letter from Ms Fenton shortly after the salon reopened after Christmas (on 29 December 2003).
Ms Hunt denied suggestions that the conversations between her and Ms Fenton were in the terms asserted by Ms Fenton. She specifically denied being told that Ms Fenton was only on leave until the end of the week ending on 20 December 2003. She understood that Ms Fenton would be on leave for the following week until Christmas. She agreed that Ms Fenton had told her that she would ring if she was able to come in sooner but understood that this related to the following week. She was surprised when Ms Fenton attended work on 22 December. She denied receipt of any text message on 20 December. She could not recall whether she had the same phone as she had had in October 2003 when she received some other text messages from Ms Fenton. She acknowledged that Ms Fenton’s letter dated 24 December 2003 referred to a return to work on 2 January 2004 and did not know how Ms Fenton had formed that view.
Ms Hunt denied that her conversation with Ms Fenton on 22 December 2003 had been hostile. She agreed that their conversations on 29 December had been hostile. She denied knowing about Ms Fenton’s obstetrician’s appointment until 29 December 2003 (in their second of three telephone conversations on that day). Ms Hunt said that in the third of their telephone conversations on that day she referred to the advice she had received from the Department of Industrial Relations.
Mr Beckett showed Ms Hunt exhibit A6, which was a letter she had written to HREOC in relation to Ms Fenton’s complaint. She said that the contents of that letter reflected her responses to allegations contained in the complaint. She denied that paragraph 14 of that letter reflected the real reason for the dismissal of Ms Fenton. She denied being annoyed on 18 December 2003 when the salon had been left unattended.
Melissa Green
Ms Green is a client of the respondents. She was a client at the relevant time. She deposes as to Ms Fenton expressing her gratitude to Ms Hunt for her support during her pregnancy. Under cross‑examination Ms Green resisted suggestions that she had constructed her evidence to support Ms Hunt because she wished to continue being a client.
Sonya Craig
Ms Craig is an employee of the respondents. She commenced employment in 2004. She deposes as to the support given by Ms Hunt to her during her pregnancy.
Leisa Mackrill
Ms Mackrill is a former employee of the respondents. She deposes as to her recollection of what she was told of the events on 18 to 29 December 2003 and deposes of her understanding of the supportive attitude shown by Ms Hunt to Ms Fenton during her pregnancy.
Other evidence
The following documents were tendered in evidence:
· A1 Obstetrician’s notes;
· A2 Registered mail receipt dated 24 December 2003;
· A3 Wagebook;
· A4 Vodafone account summary of Cory Fenton;
· A5 Patient progress notes dated 18 December 2003;
· A6 Document from Ms Hunt to HREOC dated 2 May 2004;
· A7 Letter dated 12 January 2004 from Ms Hunt to Ms Fenton;
· A8 Handwritten note dated 20 November 2003 from Ms Fenton;
· R1 Page from appointment book.
I also received as evidence the information sheet and attachments accompanying the original application on 15 September 2004.
The legislation
Section 5(1) of the SDA provides as follows:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
Section 7(1) of the SDA provides as follows:
(1)For the purposes of this Act, a person (the discriminator ) discriminates against a woman (the aggrieved woman ) on the ground of the aggrieved woman's pregnancy or potential pregnancy if, because of:
(a) the aggrieved woman's pregnancy or potential pregnancy; or
(b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or
(c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant;
the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.
Section 14(2) of the SDA provides as follows:
(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.
Sections 5(1) of the DDA provides as follows:
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
Section 15(2) of the DDA provides as follows:
(2)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:
(a) in the terms or conditions of employment that the employer affords the employee; or
(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; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
Submissions
I invited written submissions from the parties. Mr Beckett prepared written submissions that were filed on 13 December 2005. These attack the credibility of Ms Hunt and assert that Ms Hunt’s true motivation for her sending home and dismissal of Ms Fenton is different from that asserted in the evidence. Mr Beckett submits that the true motivation is supported by contemporaneous documents, those being exhibit A7 and exhibit A6.
Mr Beckett submits that the evidence discloses an unfavourable attitude shown by Ms Hunt to Ms Fenton’s pregnancy prior to 18 December 2003. He submits that the Court should conclude on the evidence that Ms Hunt was upset and angry when Ms Fenton became ill on 18 December 2003. This illness is said to relate to low blood pressure associated with pregnancy. Mr Beckett submits that exhibits A6 and A7 disclose that Ms Hunt doubted that Ms Fenton had a bona fide medical condition on the basis of the events on that day. Mr Beckett further notes that Ms Hunt placed an advertisement in the paper for a replacement hairdresser and that the relevant period for the vacancy was up until 2 January 2004.
As to the events on 22 December 2003, Mr Beckett submits that Ms Fenton presented to work fit and able on that morning. He submits that while Mondays were normally a rostered day off, the parties had agreed that Ms Fenton would work on 22 December 2003. Mr Beckett submits that Ms Fenton believed that she had been replaced as a result of her conversation with Ms Hunt on the morning of that day (at least for a limited period) and was concerned both about the absence of salary and, more generally, the security of her job. He submits that the employment relationship had at this time deteriorated following “a clearly heated” conversation between Ms Fenton and Ms Hunt. He submits that there is no doubt that Ms Fenton believed that she had been replaced until 2 January 2004, as evidenced by her contemporaneous letter to Ms Hunt sent on 24 December 2003.
In relation to the events on Monday, 29 December 2003 Mr Beckett submits that the Court should conclude that this was a rostered day off and in any event Ms Fenton had been instructed not to return to work until 2 January 2004. She also had an obstetrician’s appointment at 10.30am that day. Mr Beckett submits that Ms Hunt’s denial that this was a rostered day off lacks credibility. He submits that Ms Hunt was confused in her evidence as to the events on that day. He submits that Ms Hunt’s actions on that day were unreasonable and not those of an employer who wished to retain the services of Ms Fenton.
Mr Beckett submits that the pregnancy discrimination claim has been established, both in relation to being denied employment for the period from 22 December 2003 to 2 January 2004 and in relation to the alleged dismissal. Mr Beckett invites the Court to conclude that Ms Fenton was initially denied employment because of Ms Hunt’s anger at her sickness and pregnancy and that the later dismissal, although irrational, was unreasonable and an extension of that anger and dissatisfaction.
In the alternative, Mr Beckett submits that Ms Fenton’s claim is proven on the basis of a disability, namely her low blood pressure associated with her pregnancy.
The contract claim is straightforward. Ms Fenton asserts that she should have received $600 net of tax in termination pay rather than the $433 which she received. She claims the gross sum of $238 (inclusive of tax).
Ms Fenton seeks damages for non economic loss in the sum of $3,000 plus damages for economic loss up to 1 May 2004 when Ms Fenton ceased to be available for employment due to her pregnancy. Ms Fenton concedes that a three week period should be excised for the assessment of damages when she had planned to take time off work in any event. Mr Beckett submits that Ms Fenton took adequate steps to mitigate her loss notwithstanding that she was unable to find employment in an industry that is notable for a shortage of trained staff.
Mr Easton prepared written submissions which were filed on 20 December 2005. Mr Easton submits that Ms Fenton bears the onus of proof and that the standard of proof should be the Briginshaw standard[1]. Mr Easton notes the factual dispute between the parties. In relation to the events of 18 December 2003 he submits that the following matters are not controversial:
a)Ms Fenton experienced tingling in her wrists, collapsed at work and was taken to a nearby medical centre.
b)Ms Hunt was not in the salon at the time but arrived shortly thereafter.
c)Ms Hunt rang Ms Fenton’s mother and fiancé who both then attended the medical centre.
d)Ms Fenton was examined by Dr Zavaras. Dr Zavaras indicated that Ms Fenton’s blood pressure was low and that the tingling in the wrists might be (though was unlikely to be) carpel tunnel syndrome.
e)Ms Fenton and her fiancé then returned to the salon and advised Ms Hunt that they would be going to Ms Fenton’s treating GP for further consultation. Ms Fenton advised Ms Hunt that her blood pressure was low and the tingling in her wrists may be carpel tunnel syndrome (but probably was not).
f)Ms Hunt was immediately agreeable to Ms Fenton leaving to see Dr Lewis.
g)Ms Fenton and Mr Fenton then saw Dr Lewis.
h)At the time Ms Fenton was being examined Mr Fenton received a call on Ms Fenton’s mobile phone from Ms Hunt. Mr Fenton’s evidence is that Ms Hunt was ringing to inquire only of Ms Fenton’s wellbeing.
[1] Briginshaw v Briginshaw (1938) 60 CLR 336
Mr Easton notes the disagreement between Ms Fenton and Ms Hunt as to their conversation after Ms Fenton saw Dr Lewis. He submits that on either version of the conversation what was discussed was inconsistent with the doctor’s certificate in Ms Fenton’s possession at the time. He submits that Ms Hunt’s account should be preferred because it had been consistent since January 2004[2]. Mr Easton submits that Ms Fenton’s evidence concerning her anticipated return to work on Monday, 22 December 2003 is inconsistent with her leaving a message with Ms Hunt on Saturday, 20 December 2003 to advise that she would not be coming in. Mr Easton also submits that Mr Fenton’s account is at odds with that of Ms Fenton. He thought that she would return to work on Tuesday, 23 December 2003.
[2] see exhibits A6 and A7 and Ms Fenton’s affidavit sworn on 8 August 2005
As to the events of 22 December 2003 Mr Easton submits that the conversation between Ms Fenton and Ms Hunt at the salon on the morning of that day was only brief and not hostile. He submits that Ms Fenton’s recollection that she was told by Ms Hunt not to return until 2 January 2004 and that she had been “replaced” for that period was not supported by the surrounding circumstances. He refers in particular to the later telephone conversation between Ms Fenton and Ms Hunt and the appointment book which showed appointments for Ms Fenton on 29, 30 and 31 December. He also refers to Mr Fenton’s recollection that he thought his wife would be returning to work on Tuesday, 30 December 2003. Mr Easton also notes that Ms Fenton showed her dissatisfaction with her employment by seeking advice from the Department of Industrial Relations. She also discussed five or six scenarios with her “household”. He submits that Ms Fenton’s dissatisfaction with the employment relationship was not reciprocated by Ms Hunt.
Mr Easton submits that Ms Hunt sent Ms Fenton home on Monday, 22 December 2003 because Ms Hunt knew (or believed she knew) that Ms Fenton had been certified unfit for work for the rest of the week. He invites the Court to conclude that Ms Fenton did not attempt to give her doctor’s certificate to Ms Hunt on the morning of that day. He submits that the reference to 2 January 2004 in Ms Fenton’s letter of demand dated 24 December 2003 is self serving. He submits that the Court should place no reliance upon it.
As to the events of 29 December 2003 Mr Easton invites the Court to conclude that the parties had agreed that Ms Fenton was to attend work on that day. He refers in particular to the appointment book. Mr Easton submits that it is abundantly clear that Ms Fenton refused to attend work on that day. He submits that Ms Fenton’s evidence in cross-examination that she would have been willing to attend work after her doctor’s appointment if she had been asked was not credible.
Mr Easton submits that there were three conversations on 29 December 2003 (all by telephone) and that it must be accepted that Ms Fenton’s employment had not been terminated by the end of the first two conversations. He submits that the Court should prefer Ms Hunt’s account as to the third conversation as giving Ms Fenton the option of attending work or being terminated. He submits that it was Ms Fenton who was inflexible, which resulted in the breakdown of the employment relationship.
Mr Easton submits that the parties agree that the case can be resolved by answering the following questions:
a)Did Ms Fenton suffer a detriment?
b)Who was the hypothetical comparator?
c)Was Ms Fenton treated less favourably than the hypothetical comparator?
d)Was the less favourable treatment on the ground of her pregnancy or a characteristic generally appertaining to women who are pregnant?
Mr Easton submits that Ms Fenton did not suffer a detriment. He submits that the requirement to attend work was not a detriment and that the termination of her employment (if there was one) flowed from her refusal to attend work. Ms Fenton could have avoided that termination should she have wished to. He submits that the asserted antagonism of Ms Hunt has no substance.
Mr Easton submits that the appropriate comparator is a person who:
a)was working in a small and necessarily flexible workplace[3];
b)took sick leave from 18 December 2003 but was not pregnant;
c)advised her employer that she had received medical advice to not attend work for a week;
d)attended for work on Monday 22 December 2003 despite the medical advice she had apparently received[4];
e)by arrangement with her employer was due to attend for work on 29 December 2003, being a busy time of year for the employer;
f)did not attend for work on the date arranged (29 December 2003);
g)when contacted twice refuses to attend for work 29 December 2003; and
h)had no good reason for refusing to attend for work, let alone one related to prior absence on sick leave.
[3] Bilaterally flexible in so far as the employer being flexible in its arrangements (maternity leave arrangements, annual leave arrangement, part-time work arrangements and so on) and the employee being correspondingly flexible.
[4] This element does not require the Court to conclude that the medical advice was take leave for a week, but only for the Court to conclude that in Ms Hunt’s mind the medical advice was to take leave for a week
Mr Easton disputes the proposition that Ms Hunt had a “true motivation” different from her asserted motivation in requiring Ms Fenton to attend work. On the contrary, he submits that there is abundant evidence that Ms Hunt was “exceptionally keen” to retain Ms Fenton and made whatever accommodation and concessions she reasonably required. He submits that it is illogical to believe that there was a complete reversal of Ms Hunt’s attitude within a few hours on 18 December 2003. He also submits that it is illogical to suppose that Ms Hunt “in fury and anger” embarked upon a course of action that took almost two weeks to complete. Ms Easton submits that it is clear that Ms Fenton was not treated less favourably than the hypothetical comparator. In particular, he submits that the Court could not be comfortably satisfied that Ms Hunt would not have dismissed the hypothetical comparator on 29 December 2003 for refusing to come to work.
Mr Easton also submits that there was no causal connection between Ms Fenton’s pregnancy and her dismissal. He also submits that there is no substance to the claim of disability discrimination (although his consideration appears to be limited to the issue of dismissal on 29 December 2003).
Even if the Court were to find that unlawful discrimination occurred, Mr Easton submits that Ms Fenton has not established that she has suffered any loss or damage. He submits that she has failed to mitigate her loss and there is no evidence of non economic loss.
Mr Easton submits that the Court should not entertain the contract claim as it was raised only in written submissions.
Finally, Mr Easton makes specific submissions relating to matters arising from the applicant’s written submissions.
Mr Beckett’s written submissions in reply were filed on 21 December 2005. Mr Beckett disputes that the Briginshaw standard is the appropriate standard of proof. He submits that the standard has no precedent in sex discrimination cases (except possibly in sexual harassment cases). He also joins issue on the question of the comparator and the question of less favourable treatment.
As to the contract claim, Mr Beckett submits that the issue was notified in opening submissions and was the subject of cross-examination of Ms Hunt. Given the very small amount claimed, he submits that the applicant should not be expected to file and serve an amended application.
Reasoning
There is no dispute between the parties as to the applicable legal principles. Also, there is no dispute between the parties as to the general factual matrix. I accept Mr Easton’s description of the uncontroversial facts set out at paragraph 61 above. What needs to be resolved is the dispute as to what occurred after Ms Fenton saw her general practitioner on 18 December 2003, what occurred on 20 December 2003, what occurred on 22 December 2003 and what occurred on 29 December 2003. The dispute centres on asserted conversations between Ms Fenton and Ms Hunt. It is necessary to resolve their dispute as to what they said to each other on these days.
In civil proceedings the standard of proof applicable is the balance of probabilities[5]. The Briginshaw principle does not establish a different standard of proof. It simply bears on the degree of satisfaction the Court may require as to matters of evidence depending upon the gravity of matters alleged[6]. The principle is given statutory recognition in s.140(2)(c) of the Evidence Act 1995 (Cth) (“the Evidence Act”). There is nothing grave about Ms Fenton’s allegations against Ms Hunt. It is not disputed that Ms Fenton was sent home without pay on 22 December 2003 and neither is it seriously disputed that Ms Fenton was dismissed on 29 December 2003. What is in dispute is the reason for it. Ms Fenton says that the real reason was her pregnancy (or an illness relating to her pregnancy, namely low blood pressure, or a disability – low blood pressure). The evidentiary dispute falls to be resolved on the balance of probabilities.
[5] s.140(1) of the Evidence Act 1995 (Cth)
[6] Duhbihur v Transport Appeal Board & Anor [2005] NSWSC 811 at [59]
The evidence of Ms Fenton and Ms Hunt is central to the resolution of this case. Also important (but less so) is the evidence of Mr Fenton. I place little weight on the evidence of Melissa Green, Sonya Craig and Melissa Mackrill. They are unable to give firsthand evidence of the disputed conversations between Ms Fenton and Ms Hunt as they were not there. Ms Green and Ms Mackrill provided some corroboration of Ms Hunt’s claim to have been supportive during Ms Fenton’s pregnancy.
Ms Fenton was an unsatisfactory witness. She was untruthful in her evidence concerning changing her honeymoon plans. She asserted that her plans were changed as a result of her dismissal. I prefer the evidence of her husband (Mr Fenton). He was a disarmingly honest witness. I accept his evidence that the Fentons’ honeymoon plans had been changed some months before Ms Fenton’s dismissal and were unrelated to it. Ms Fenton was also a prickly witness under cross‑examination. She was at times hostile and argumentative. Having regard to her untruthfulness on the question of her honeymoon and my general concerns as to her demeanour in the witness box, I treat her evidence as to disputed facts with considerable caution.
Ms Hunt was also an unimpressive witness. Her recall of matters of detail was defective and her efforts to explain away the obvious hostility shown in her letters to Ms Fenton and HREOC (exhibits A6 and A7) were unconvincing. She admitted under cross-examination that she was a poor bookkeeper. In fact, her record keeping was sloppy. Having regard to her hostility towards Ms Fenton on and after 29 December 2003 and vagueness and uncertainty that she displayed at times in the witness box, I also treat with some caution Ms Hunt’s evidence on matters of disputed fact.
Mr Fenton was the most impressive witness. However, his recall of matters of detail was far from perfect and he admitted being disinterested in the details of his then fiancé’s employment at the relevant time. I place little weight on Mr Fenton’s evidence that he believed that Ms Fenton would be working on 23 December 2003 and on 30 December 2003. Mr Fenton simply did not understand the subtleties of the roster system operated by Ms Hunt. While Mondays were normally a rostered day off for Ms Fenton, and while Mondays remained a rostered day off if that day was a public holiday or if a public holiday occurred on some other day in the same week, Monday was not a rostered day off during the Christmas period. This appears to have been the only exception to the general rule and was due to the fact that the Christmas period was the busiest time of year for the salon and that two working days were lost at that time due to public holidays.
The resolution of the disputed issues of fact in these circumstances is not simple. However, courts are frequently called upon to resolve disputed issues of fact in circumstances where the evidence of all of the principal witnesses is, to a greater or lesser extent, unsatisfactory. Having considered all of the evidence and weighed it by reference to my impression of Ms Fenton and Ms Hunt as witnesses, I make the following findings on the disputed questions of fact.
I find that Ms Hunt was supportive of Ms Fenton during her pregnancy up to the time of Ms Fenton’s dismissal. I accept, in this regard, the evidence of Ms Hunt, noting that it is corroborated by Ms Green and Ms Mackrill. It is also corroborated to some extent by Mr Fenton. Ms Hunt regarded Ms Fenton as a valued employee and wished to keep her. She went to considerable trouble to accommodate Ms Fenton’s pregnancy. She agreed to provide maternity leave to the extent that Ms Fenton sought it and agreed to work with Ms Fenton on a flexible return to work on a part time basis after Ms Fenton’s confinement. Ms Hunt also agreed to change her own holiday arrangements as a result of Ms Fenton’s pregnancy. It is hard to imagine what more Ms Hunt could have done to show her support. I reject as baseless Ms Fenton’s assertions that Ms Hunt was hostile to her pregnancy.
Ms Hunt showed appropriate concern for Ms Fenton’s welfare when Ms Fenton became ill on 18 December 2003. Ms Hunt contacted Ms Fenton’s family to inform them of the situation. Ms Hunt was genuinely concerned for Ms Fenton’s welfare. However, as exhibits A6 and A7 show, Ms Hunt was also concerned that the salon had been left unattended by Ms Fenton. She was concerned about the impact upon her business and the risk to her cash and stock. As Ms Hunt also admitted under cross-examination, she was also concerned about her potential workers compensation liability when Ms Fenton reported the possibility of carpel tunnel syndrome. Ms Hunt was keen to eliminate that as a potential work related injury and was relieved when it was eliminated. She placed weight in what the practitioner initially consulted by Ms Fenton on that day (Dr Zavaras) told her later in the day when she visited the salon. Ms Hunt formed the view that Ms Fenton may have been simply suffering anxiety and may have over reacted to her symptoms.
Ms Hunt was concerned about the position the salon was left in at the busiest time of the year. Ms Hunt was anxious to know whether Ms Fenton would be working during the Christmas week. She and Ms Fenton had agreed a considerable time previously that Ms Fenton would be working during that week. They had also agreed that Ms Fenton would be working the week after Christmas as Ms Hunt had arranged to take her holidays then in consequence of Ms Fenton’s pregnancy. I accept the evidence of Ms Hunt in this regard.
There is confusion about what Ms Fenton told Ms Hunt after she saw Dr Lewis on 18 December 2003. Dr Lewis had given Ms Fenton a medical certificate for two days (being a Thursday and a Friday) which for most people would be the rest of the working week. Ms Fenton probably asked Dr Lewis for a certificate for the rest of her working week but Dr Lewis misunderstood what that meant. Ms Fenton anticipated receiving a certificate that included Saturday, 20 December 2003. It is unclear whether Ms Fenton told Ms Hunt that she would be off work for the rest of the week or for the following week. Even on Ms Fenton’s account, she left it uncertain as to whether she would be working the following week. Ms Hunt was left with the understanding that it was unlikely that Ms Fenton would be working in the week commencing 22 December 2003 but that she would be told if that position changed.
I accept the evidence of Mr and Ms Fenton that Ms Fenton sent a picture text message to Ms Hunt on Saturday, 20 December 2003 to confirm that she would not be working on that day. I also accept the evidence of Ms Hunt that she did not receive it. On that day she placed a newspaper advertisement for a temporary staff member in anticipation of the absence of Ms Fenton. Ms Hunt says that the advertisement was for a position for one week while Ms Fenton says that the advertisement was for a position until 2 January 2004. Neither party put the advertisement into evidence and neither party called as a witness the apprentice who was hired by Ms Hunt in response to the advertisement. I find that Ms Hunt, in anticipation of the absence of Ms Fenton for a period that was uncertain but was likely to continue for at least one week commencing on 22 December 2003, sought to fill Ms Fenton’s position temporarily and hired an apprentice as the best available respondent to that advertisement.
I find that Ms Fenton presented herself for work on the morning of Monday, 22 December 2003 fit and ready for duty. Her evidence is corroborated by the medical certificate from Dr Lewis which only covered 18 and 19 December 2003. I find that Ms Fenton expected to work on that day and was presenting herself for duty ready, willing and able to work. I further find that the attendance of Ms Fenton took Ms Hunt by surprise. She had not received the picture text message from Ms Fenton on 20 December[7] and was left with the impression that Ms Fenton would be away for the whole week. She had already made arrangements to replace Ms Fenton temporarily, albeit with merely an apprentice.
[7] which apparently indicated Ms Fenton’s intention to come back to work on 22 December 2003.
It is surprising that Ms Hunt did not accept Ms Fenton for duty on 22 December 2003. It was, on Ms Hunt’s account, the busiest time of the year and an apprentice was hardly an adequate replacement for Ms Fenton. The conversation that Ms Hunt and Ms Fenton had at the salon on the morning of that day was relatively brief and formal. Customers were present and neither wanted to create an embarrassing situation. I find that Ms Hunt sent Ms Fenton home upon the basis that Ms Hunt had formed the view that Ms Fenton’s health was uncertain and that her working at that busy time presenting an unacceptable risk. Ms Hunt was concerned at the events of 18 December 2003 and did not want a repetition. She wanted to ensure that when Ms Fenton returned to work there would not be a repetition.
I find that Ms Fenton returned home agitated and concerned about her employment position. She appeared to have been replaced, albeit for a limited period. Ms Fenton was sufficiently concerned to telephone Ms Hunt and query her position. This was a tense conversation. Ms Fenton was concerned that she was losing a week’s pay and was worried that her employment was uncertain.
Ms Hunt provided some reassurance to Ms Fenton in this conversation that her position was not under threat. She was only replaced temporarily. In Ms Hunt’s mind, this meant that Ms Fenton would return to work the following Monday, 29 December 2003. It is inconceivable that Ms Hunt would have told Ms Fenton anything else. The two had agreed months before that Ms Hunt would be on holidays from that day and Ms Fenton was needed. Ms Hunt had been unable to find an adequate replacement for Ms Fenton and it was a particularly busy time for the salon. Exhibit R1 establishes to my satisfaction that clients had been booked in on 29 December 2003 to be seen by Ms Fenton, including clients who asked for her personally. It is, nevertheless, possible that Ms Hunt did not specifically confirm during this conversation that Ms Fenton was expected at work on 29 December 2003. It had previously been agreed that Ms Fenton would work on that day and, in Ms Hunt’s mind, nothing had changed.
Somehow, Ms Fenton formed the view that she had been replaced until 2 January 2004. Ms Fenton’s letter to Ms Hunt dated 24 December 2003 and dispatched on that day is a contemporaneous and reliable record of Ms Fenton’s belief. It is possible that Ms Fenton had simply nominated 2 January 2004 as her return date out of annoyance of being sent home without pay and to suit her own convenience. She had an obstetrician’s appointment on 29 December 2003. It is possible that Ms Fenton decided to insist upon her rostered day off on 29 December 2003 as a result of her annoyance, even though she well knew that this was not a normal rostered day off. I think it unlikely, however, that this was simply a capricious act on the part of Ms Fenton. Something else had happened in order to create her belief that she had been replaced until 2 January 2004. Two things had happened. The newspaper advertisement had appeared on Saturday, 20 December 2003. It is possible that that advertisement stipulated a period of 22 December 2003 to 2 January 2004. It is also possible that Ms Fenton learnt from Ms Hunt that Ms Hunt had hired the apprentice for the period until 2 January 2004. I find, on the balance of probabilities, that as a result of either seeing the newspaper advertisement, or being told about it, or as a result of her understanding of the arrangements for the hiring of the apprentice, Ms Fenton formed the erroneous view that she was not required at the salon until 2 January 2004. In addition, Ms Fenton was extremely annoyed by her replacement and by her loss of income. She had sought advice from the New South Wales Department of Industrial Relations and had written a letter of demand to Ms Hunt for her lost pay. Ms Fenton believed (correctly in my view) that as she had presented for work ready, willing and able to work on 22 December 2003 she should not have been sent home on unpaid leave. Having been sent home she determined to pursue her lost salary and not to work for the full period that she believed she had been replaced.
There were three telephone conversations between Ms Hunt on Monday, 29 December 2003. I accept the general tenor of those conversations from Ms Hunt’s evidence. Ms Hunt required Ms Fenton to attend work and Ms Fenton refused. It was not a normal rostered day off and Ms Fenton knew it. Ms Hunt dispelled the notion that Ms Fenton apparently had that she had been replaced until 2 January 2004. Ms Hunt demanded that Ms Fenton attend work or be dismissed. Ms Fenton refused in the knowledge that the consequence would be her dismissal. In consequence of her refusal to attend work, Ms Hunt did dismiss Ms Fenton.
In order to determine whether these events resulted in unlawful discrimination, it is necessary to identify an appropriate comparator. I reject the comparator proposed by Mr Easton. The adoption of the attributes he submits should be adopted would involve acceptance of disputed issues of fact in Ms Fenton’s favour. Not only is that inappropriate, it conflicts with the evidence as I have found it. The appropriate comparator is an employee at the salon with the same experience and skills as Ms Fenton, who was not pregnant but who suffered an illness rendering them temporarily unfit for work.
Ms Fenton was not dismissed because she was pregnant. Neither was she dismissed because of any attribute relating to her pregnancy. Neither was she dismissed because of her disability (low blood pressure). Ms Fenton was dismissed because she had refused to attend work when she was repeatedly asked to attend work. The dispute over whether Ms Fenton would attend work arose because of confusion (and probably inadequate communication) between Ms Fenton and Ms Hunt between 22 December 2003 and 29 December 2003. However, there was no “conspiracy” on the part of Ms Hunt to dispense with Ms Fenton’s services. On the contrary, Ms Fenton was a valued employee and Ms Hunt did not want to lose her. This was a simple dispute over rosters. Ms Fenton had challenged Ms Hunt’s authority on 29 December 2003 and Ms Hunt had reacted with hostility but within her rights. The dismissal of Ms Fenton was because of Ms Fenton’s refusal to attend work when required and was justified by that refusal. Although it is unnecessary to consider the position of the hypothetical comparator, because there was no causal link between Ms Fenton’s pregnancy or disability and her dismissal, there is nothing in the evidence before me to persuade me that the hypothetical comparator would have been treated any more favourably.
Ms Hunt adopted a maternalistic attitude on 22 December 2003. Although she had been left uncertain as to whether Ms Fenton would attend work during that week, Ms Fenton had presented for work fit, ready and able to work. Having made an arrangement (albeit not really satisfactory) to replace Ms Fenton for the week, Ms Hunt decided to send Ms Fenton home. It was Ms Hunt’s decision, not the decision of Ms Fenton or her treating general practitioner. It is irrelevant whether on that day Ms Fenton proffered the medical certificate from Dr Lewis. The fact was that Ms Fenton had presented for work, was not sick and wanted to work. Ms Hunt had decided not to take the risk of permitting Ms Fenton to work because she did not want a repetition of the events of 18 December 2003. Ms Hunt’s motives may have been benign (she was genuinely concerned for Ms Fenton’s welfare) but Ms Fenton was treated less favourably than the hypothetical comparator would have been in the same circumstances. Ms Fenton was denied a week’s salary that she was entitled to earn. A valued employee with Ms Fenton’s skills and experience who was temporarily unfit for work but then presented for work fit at a time when her services were sorely needed, would not have been turned away. It was Ms Fenton’s pregnancy that caused Ms Hunt to send Ms Fenton home because of her concern for her welfare. However, the decision should have been left for Ms Fenton. In sending Ms Fenton home and thereby depriving her of a week’s salary, Ms Hunt discriminated against Ms Fenton by reason of her pregnancy contrary to s.7(1) and s.14(2)(b) of the SDA. Ms Hunt denied Ms Fenton access to paid employment for a week which was a benefit associated with her employment. Alternatively, the denial of paid employment was a detriment for the purposes of s.14(2)(d).
Ms Fenton should receive the week’s salary she lost. I accept her evidence that she generally expected to earn not less than $600 after tax per week at that time. That is her economic loss. Damages for non economic loss should be nominal. Ms Fenton was very annoyed by being sent home but suffered no real harm. I will award $500 damages for non economic loss.
There is also a contractual dispute between the parties. Although it was not properly pleaded, the issue was adequately raised during the proceedings. The respondents dispute that the claim should be accepted but do not make any submission about the merit of the claim. The claim arises out of the same subject matter as the discrimination claim and properly arises in the Court’s accrued jurisdiction. I accept the claim and will award the amount sought by Ms Fenton, namely the sum of $238.
I will also award interest up to judgment on and from 29 December 2003 at the rate of 10.5 per cent.
The damages payable to Ms Fenton for pregnancy discrimination are net of tax. It is a matter for Ms Hunt to determine the amount that should be remitted to the Australian Taxation Office after grossing up the award of damages in relation to the week’s salary lost. The sum awarded on the contract claim is a gross amount (inclusive of any tax payable). The termination payment is probably an eligible termination payment and so would be taxable at a different rate than normal salary. That is a matter that I will leave Ms Fenton to determine.
I will hear the parties as to costs.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 January 2006
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