GRAVENER v MIJA Pty Ltd
[2020] FCCA 46
•13 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRAVENER v MIJA PTY LTD & ORS | [2020] FCCA 46 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act – adverse action – discrimination – application dismissed – whether employee or independent contractor. |
| Legislation: Fair Work Act 2009 (Cth), ss.340 - 342, 351 |
| Cases cited: Moffet v Dental Corporation Propriety Limited [2019] FCA 344 Rumble v the partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 |
| Applicant: | JODIE GRAVENER |
| First Respondent: | MIJA PTY LTD |
| Second Respondent: | JANET HOGAN |
| Third Respondent: | MICHAEL HOGAN |
| File Number: | BRG 551 of 2018 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 25, 26 March and 8, 9 October 2019 |
| Date of Last Submission: | 9 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 13 January 2020 |
REPRESENTATION
| The Applicant appearing on her own behalf |
| Counsel for the Respondent: | Mr Taylor |
| Solicitors for the Respondent: | Crosby Brosnan & Creen |
ORDERS
That the application filed on 19 June 2018 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 551 of 2018
| JODIE GRAVENER |
Applicant
And
| MIJA PTY LTD |
First Respondent
| JANET HOGAN |
Second Respondent
| MICHAEL HOGAN |
Third Respondent
REASONS FOR JUDGMENT
The Claim
By way of application filed on 19 June 2018 the applicant sets out five claims as follows;
a)Claims 1 to 4 are three allegations of actionable adverse action arising from the applicant allegedly exercising workplace rights pursuant to sections 340 to 342 of the Fair Work Act 2009 (FWA).
b)Claim 5 is an allegation of actionable adverse action arising from alleged discrimination pursuant to section 351 of the FWA.
Importantly, claim 1 relates to an alleged actionable adverse action arising whether the applicant was an independent contractor or an employee. Claims 2 to 5 only arise in circumstances where the court finds that the applicant is an employee.
It is important therefore to determine whether the applicant is an employee or an independent contractor.
The Type of Enterprise/Background
On 13 November 2011 the applicant and Janet Hogan as director of MIJA Pty Ltd trading as Coral Coast Party Sales signed an authorised Tupperware Demonstrator terms and conditions agreement and accordingly on that date the applicant became an authorised Tupperware Demonstrator.
MIJA Pty Ltd trading as Coral Coast Party Sales holds the Queensland Franchise for sale of Tupperware and the two directors of MIJA are Janet and Michael Hogan.
The agreement between the applicant and respondent's formed a tripartite relationship with Tupperware Australia. Tupperware Australia provides a large array of product which is ultimately available for sale by demonstrators to members of the public.
Tupperware Australia makes the product and materials available to MIJA for purchase by them and on sale to authorised demonstrators appointed by that franchisee. MIJA in turn makes the product and materials available for sale to its demonstrators who on sell the product.
The product is listed in Tupperware catalogues at recommended retail prices but offered for sale to demonstrators at lower wholesale prices. The profit to demonstrators on resale is approximately 32.2% of retail less any costs to the demonstrator.
The process of buying and selling product occurs primarily through Tupperware Australia's online computer system Empower.
Important to that system is a trading account which is run by the franchisee's (MIJA) for each of the demonstrators. The account includes both a limited credit facility for purchases by the demonstrators and also allows for management of any credits which may be due to the demonstrator, whether from payment by retail customers or sales rewards.
Demonstrators are also sold a QuickStart kit of product and materials on credit for demonstration of the product by the demonstrator which is then repaid from initial sales.
Demonstrators use the demonstration kits, catalogues and other materials they have purchased to sell product at sales parties. They take an order from the customer, and in the case of MIJA demonstrators, typically receive payment at the time of order. Once the demonstrator has received the order and payment (or credit card details) the demonstrator will then enter the order into Empower. This generates the invoice to them and an order to MIJA, a corresponding order from MIJA to Tupperware Australia and corresponding invoice. The product is then picked by Tupperware Australia and shipped to the address supplied by the demonstrator.
The payment amount will show as a credit on the invoice for the relevant order. If the retail payment exceeds the wholesale amount (plus freight) due from the demonstrator to MIJA that amount will be a credit on the demonstrators trading account.
It follows that MIJA does not pay a demonstrator for any sales. Rather, demonstrators are invoiced for and pay for products and materials they choose to purchase from MIJA and they only receive a bank transfer of funds from MIJA when their trading account is in credit.
MIJA as franchisee provided access to training, mentoring and support to the applicant.
It is clear from the agreement signed by the applicant that she agreed to own “her own home-based business.”[1] However from time to time Tupperware Demonstrators may be appointed managers. This occurs in circumstances where the demonstrators have recruited other individuals as new demonstrators and have also met sales targets required for that step.
[1] See welcoming letter at page 21 of respondents volume 1 index to trial bundle
The manager arrangement is beneficial for Tupperware Australia, MIJA as the franchisee and the Demonstrator due to the increase in sales. Furthermore the more demonstrators recruited by the newly appointed manager the greater the potential sales of her team and as a result the greater the potential income the new manager may earn from the business.
The applicant was appointed manager with the consent of Tupperware Australia in March 2013. The manager status was removed in or about week 39 of 2014 due to what the respondents referred to as “ongoing behaviour.” The applicant in these proceedings takes no issue with that termination of her management status.
In approximately January 2017 the applicant was again appointed manager with the consent of Tupperware Australia and the franchisee. At that time both MIJA and Tupperware Australia were satisfied that the applicant had met benchmarks contained in Tupperware Australia's “aspire manager benefits program (aspire program).”
The applicant achieved team sales in excess of $60,000 over a rolling three-month period and as a result qualified for the supply of a motor vehicle leased by Tupperware Australia. This occurred towards the end of February 2017 however no cars were available from Tupperware Australia until April 2017. By way of compensation the applicant was paid by Tupperware Australia, the sum of $500 per calendar month while she waited for a car to be supplied to her.
Once the applicant had been appointed as a manager she received from Tupperware Australia, a “manager guide to success” and a training program titled “New Manager Development Program Manager Training Materials (Manager Support Materials).”
The manager support materials were supplied by Tupperware Australia and MIJA had no part in drafting them. Whilst MIJA did not enforce the ideas contained within the manager support materials they nevertheless encouraged their managers to follow them.
The evidence satisfies me that MIJA formed the view that Tupperware Australia was providing the managers with guidelines to allow those managers to achieve the highest level of sales, commissions and bonuses within their own businesses and acknowledged that if managers did well MIJA would also benefit.
It is important to note that the applicant did not enter into a new agreement with MIJA or Tupperware Australia upon being appointed a manager. Indeed, I am satisfied that the appointment as manager was seen by Tupperware Australia and MIJA to be an extension of the authorised Tupperware Demonstrator status.
Together with meetings the respondents ran Tupperware kiosks at shopping centres from time to time. The respondents invited demonstrators and/or managers to man the kiosks and in recognition of the demonstrators doing so they would be provided a 5% commission from any sales they made.
The attendance at kiosks was neither mandatory nor expected and indeed informing MIJA that one was available for kiosk did not necessarily confirm one's attendance at the kiosk as it was dependent upon a position being available.
The applicant’s termination by MIJA occurred on 15 December 2017. The respondents say that the applicant’s involvement with their company was terminated due to her aggressive and rude behaviour and the applicant alleges that the involvement with MIJA was terminated due to the alleged actionable adverse actions previously set out.
Discussion
The applicant in her application sets out factual allegations in paragraphs 1 to 24 of part G. No allegation of relevant rights held under the FWA, nor of breach, is made in regard to those facts. Accordingly those allegations must only be relevant as either background or to the establishment of an alleged employee status.
The applicant at paragraph 15 of the application makes reference to a “trip to Dubai” but otherwise makes no allegation of any relevant right held under the FWA nor of breach in relation to that trip. The Dubai trip is mentioned as an example of alleged discrimination due to the applicant’s family requirements.
As I set out earlier it is important to determine whether the applicant is an employee or an independent contractor. If it is deemed that the applicant is an employee then all of the claims 1 to 5 are relevant and a determination would need to be made with respect to each claim. On the other hand if the applicant is not deemed an employee then it is only the first claim that need be considered and a determination made.
In Moffet v Dental Corporation Propriety Limited [2019] FCA 344 Justice Flick, when considering whether a person was an employee or independent contractor, said at [12];
“…There is no one defining factor which places a person into one category or the other.”
Previously emphasis had been placed upon the degree of control that may be exercised over a person engaged to do work by the person who engages them. However, that has now been replaced by considering “the totality of the relationship between the parties” (Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 29 (Brodribb).
In Brodribb Mason J said at [24];
“… but the existence of control whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question… other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”
In Brodribb at [37] Wilson and Dawson JJ regarded “the actual terms and terminology of the contract” to be of “considerable importance.”
As Flick J said in Moffat at [16];
“But where there is uncertainty as to the proper characterisation of the relationship, recourse may be had to the terms agreed between the parties as an aid to resolving that uncertainty: (Massey v Crown Life Insurance Co [1977] EWCA CIV12; [1978] 1 WLR 676 at 679). Lord Denning MR there observed:
The law, as I see it, is this: if the true relationship of the parties is that of master and servant under a contract of service, the parties cannot alter the truth of that relationship by putting a different label upon it… on the other hand, if the parties relationship is ambiguous and is capable of being one or the other [i.e. the relationship of master and servant or employer and independent contractor], then the parties can remove that ambiguity, by the very agreement itself which they make with one another. The agreement itself then becomes the best material from which to gather the true legal relationship between them.”
The agreement entered into between the applicant and the respondent is found at page 22 of volume 1 of the respondent’s index to trial bundle. Clause 1 refers to the obligations of the demonstrator and specifically refers to operating “my business as an authorised Tupperware Demonstrator.” Clause 12 sets out the nature of the relationship as follows:
12.1 My relationship with my Director and the Company is one of Independent Contractor. I understand that I am not a partner, employee or agent of either and that I cannot bind, or attempt to bind, my director or the company in any way.
12.2 As an Independent Contractor, I set my own work hours. If I commit to manning an event, such as a kiosk, I will of course honour that commitment. However, the decision to work these hours is my own.
12.3 I will not incur, create or assume any contract, expense, debt, obligation, liability or responsibility on behalf of, or in the name of my director or the company.
12.4 As an independent authorised Tupperware demonstrator, I am solely responsible for operating my business. Neither my director nor the company makes any representations to me in relation to the success or otherwise of my business as an authorised Tupperware demonstrator.
The applicant at [14] of the application says that if she was not an employee at the time she entered into the agreement then she became an employee of the respondent’s upon being promoted to manager.
There was no separate agreement entered into between the applicant and respondent at either time that she was elevated to manager status. The applicant was provided with management materials that suggested procedures that if followed would increase a managers income through expansion of her business. These materials however do not form the basis of any subsequent agreement.
Tab six of the respondent’s index to trial bundle sets out a sales journal for the applicant. It is clear from a perusal of that document, which is dated from 5 January 2017 to 14 January 2018, that payment to the applicant was generated through the sales directly attributed to the applicant either from herself or her team.
Tab five of the respondent's bundle is an invoice to the applicant from MIJA and shows that the account at that time has a negative balance of $797.72.
At tab nine of the respondents index to trial bundle is a copy of a journal from MIJA’s accounts showing payment to the applicant's account representing credit amounts that were available from time to time.
The payments made to the applicant from time to time were generated through the Empower computer system and did not deduct tax. The payments and indeed the journal reports identified do not show any characterisation of superannuation payments. Furthermore, the journal entries note that GST is being deducted from any payment available to the applicant (see tab twelve of the respondent’s index to trial bundle).
The manner in which tax liability is dealt with was another matter that was considered important by their Honour’s in Brodribb. In Tattsbet Limited v Morrow [2015] FCAFC 62, (2015) 233 FCR 46 at 63 to 64, Jessop J (with whom Alsop CJ and White J agreed) observed:
“…in contemporary Australia, it is impossible to ignore, and difficult to depreciate, the taxation implications of the mode of operation which parties to a relationship have voluntarily adopted. In the past, the deduction of what are now called PAYG instalments was always treated, uncontroversially as indicative of an intention that the relationship in question was one of employment. To any suggestion that the absence of such instalments tended to point to the relationship being one of principal and independent contractor, it was often rejoined that such an argument was circular, in the sense that a consequence of the relationship being one of employment was, under legislation, that such instalments had to be deducted. In contemporary times, however, there are legislative markers on both sides, as it were. It is no longer just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment, it is the presence of GST collections by the putative contractor, and his or her compliance with the regulatory requirements which apply to the provision of services by persons who are not employees, that point quite strongly against the relationship being characterised in this way.”
It follows that the deduction of GST does point quite strongly against the relationship in question being characterised as an employer and employee relationship.
The applicant sets out the material facts she relies upon to assert that she was an employee (see para 13 (I) to (XXXI) of the application). It is important to note that the mere assertion by the applicant that certain things did or did not occur is not of itself proof that those things did or did not occur.
I had the benefit of watching the applicant cross-examined and provide answers to relevant questions put to her. I formed the view that the applicant displayed, at times, a belligerent attitude to relevant questions and was in the main argumentative with Counsel cross-examining her.
Her belief that she was an employee marred her ability to make reasonable concessions based upon the evidence presented to her. For example, the applicant asserts that she was engaged on the basis that she was not required to outlay any costs to commence her employment. That is factually incorrect because she was well aware that the starter kit provided to her would be paid for from commissions resulting from the sales she made. She was well aware that demonstrators that she introduced to the business also paid for their starter's kit in a similar way.
The assertion that the respondent's provided her with all of the equipment necessary to perform her duties is again not supported by the evidence available to her. The applicant is well aware that she was required to pay for any items relevant to her occupation and indeed complains at [13] (VIII) that she had to purchase her business cards from “them.” Furthermore the applicant was well aware that Tupperware Australia provided her with a motor vehicle and compensation until a motor vehicle became available.
Overall I formed the view that the applicant’s allegation that she was an employee was disingenuous. She knew full well that Tupperware Australia governed the actions of the respondents. Proof of that fact is found at tab 18 of the respondent’s index to trial bundle.
That document is a copy of an email from the national sales director, Christopher Stuchlak, to the applicant in the following terms:
Subject: Unfair Termination
Dear Jodie
I am following up on your request as mentioned in my previous email.
We support the decision of closing your account with Tupperware/Coral Coast based on previous history and recent disruptive behaviour reported by Janet and Michael Hogan.
Tupperware and Coral Coast are within our rights as outlined in the consultant agreement to close accounts by giving a 30 day notice due to non-compliance with the consultant agreement.
Janet and Michael have a responsibility to the other managers and consultants and cannot overlook disruptive behaviour, for this reason I support the decision to close your account.
Tupperware thanks you for your years of service and respectfully asks that you honour the decision of parting ways.
Regards
Chris Stuchlak
Clearly the applicant believed that Tupperware Australia governed not only herself but the respondents. At no time does the applicant suggest that she was employed by Tupperware Australia. The applicant clearly believed that Tupperware Australia could over rule the respondent’s decision and in those circumstances I am satisfied that she was attempting to enforce her entitlement to remain an independent contractor when she approached Tupperware Australia to complain about her unfair termination of her account.
The applicant sets out many matters that she considers prove that the respondents controlled her in the workplace. Having read the agreement entered into by her and the management support tools that were also provided to her I am not satisfied that the respondents were not exercising control over her.
It is clear from the material provided and the evidence of the respondent's Janet and Michael Hogan and indeed at times from the applicant herself that the respondent’s supported an individual's right to work hard and be compensated for it.
The applicant provided no evidence to support the repeated allegation that if she did not do as the respondent’s requested she would be terminated. The applicant called no other witnesses to support that allegation.
Witnesses were called by the respondent who provided direct evidence to the contrary. Those witnesses, Ms Jasmine Baker, Ms Sharon Crosby and Ms Webb all specifically provide evidence that they were not aware of any consequences if they did not follow Tupperware Australia’s and/or MIJA’s guidelines.
Whilst being cross-examined by the applicant Ms Hogan said “if consultants or managers do not wish to adopt these approaches, they will elect not to pursue the Tupperware business, as apparently happens regularly in light of the acknowledged high turnover of consultants and managers.”
The evidence relating to the attendance at kiosks from time to time is also indicative of choice rather than mandatory involvement. The evidence establishes that the respondents would invite demonstrators and/or managers to participate in a kiosk and provide the respondents with their available date and time. It is a fact that simply making yourself available does not guarantee placement at a kiosk.
Indeed the kiosk on 14 December that the applicant complains she was removed from is an example of how kiosk manning is put in place. The evidence establishes that the respondents sent out a request for persons to provide their availability and that upon being so notified the respondents thereafter placed those persons on a roster.
I am satisfied on the evidence that the applicant never appeared on any roster for that kiosk and as a result was not removed from such because she was too late in providing availability to the respondents.
Overall I am not satisfied that there was the level of control over the applicant such as to deem the relationship between the applicant and the respondent as one of employee and employer.
The applicant complains that she was prohibited from selling product from another direct selling company during the time that she was a demonstrator and subsequently upon termination for a period of six months. This was indeed a condition that she signed her name to and can be found at clause 10 of the agreement. The applicant gave evidence that when she first became a demonstrator she also worked for others. She said that she was prohibited from working for others as a result of becoming a manager.
It is important to distinguish between what the applicant said and the reality. It is of course true that if a manager wishes to increase their business and earn reasonable levels of income they will need to work harder in that business. That is a matter of choice rather than an obligation. There is no evidence to support the notion that the respondent’s required the applicant to work long and demanding hours.
The evidence supports the fact that at times, the applicant did work long and demanding hours however I am satisfied that she was not obliged to. In doing so achieved more income and more bonuses from the company. The fact that the applicant is now not satisfied with the remuneration she received is irrelevant in determining whether there was a prohibition or not in the applicant working for others. I am not satisfied that the applicant was prohibited from working for others.
Whilst it is true that the applicant wore a polo shirt that had the name of the respondent’s trading entity on it the evidence does not support the allegation that the applicant was forced to purchase that specific polo shirt. It was clearly made available to her and she purchased the shirt, it was not provided to her for free. However other material used by the applicant to promote her business did not have the respondents trading entity emblazoned across it but rather referred to the applicant herself and as a result the inference being that she worked for herself selling Tupperware products.
Having assessed the totality of the evidence I am not satisfied that the respondent’s presented the applicant to the world at large as an emanation of their business.
There is no evidence that the respondent’s controlled the manner in which the work was to be performed or the place of work or the hours of work. Indeed it was the applicant's own evidence that she worked at various different places and at various times of the day and indeed days of the week. The applicant said that she was on call 24/7 for the demonstrators under her; that may have been so, but I am satisfied on the evidence that this was not an obligation imposed upon her by the respondent’s but rather her eagerness to provide excellent managerial support to those under her.
Similarly the applicant complained that she was obliged to train others within the respondents overall group. I accept that the respondent’s asked her to assist with the management of others however I do not accept that she was obliged to do so. I do accept that the applicant agreed to provide additional training and cannot be satisfied on the evidence that had she not agreed her position would have been terminated.
There are many and varied indicia that can be considered in determining whether a person can be properly characterised as an employee. Justice Flick in Moffat said this at [20]:
“The question of whether a person is properly characterised as an “employee” is thus not to be resolved by a mechanical reference or an application of a "checklist" of considerations. CF.Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 (“Lorimer”). Mummery J there said:
“it is clear from the cases that there is no single satisfactory test governing the question whether a person is an employee or is self-employed… In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person's work activity. This is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual detail. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.”
In taking a step back after having considered the matters referred to above I am not satisfied that the applicant could be properly characterised as an employee of the respondent’s.
In those circumstances it is only the first claim as set out in the application that needs to be considered and a determination made.
Was there a Breach of the FWA
The applicant claims a workplace right under state and Commonwealth Antidiscrimination Legislation not to be discriminated against on the basis that “I had family responsibilities, and/or was required to breastfeed.”
The applicant alleges that the respondent’s took adverse action against herself by dismissing the applicant for undertaking those family responsibilities.
Ms Hogan has deposed that the applicant was extremely rude to her throughout a meeting that was held on 8 December 2017. She deposes that three other managers approached her about the applicant's conduct.[2] Furthermore Ms Hogan deposes to historical difficulties with the applicant's behaviour and indeed refers to her rude and/or aggressive behaviour as the reason that her previous management status had been revoked.
[2] Respondent tab one at affidavit [48]-[52]
Ms Hogan deposes that she consulted with Mr Hogan and Tupperware Australia about terminating the applicant's contract and as a result a joint decision by the Hogan's was made to terminate the contract.
Ms Hogan says the matters taken into account in that decision were;
a)the applicant's previous demotion as a manager in week 39 of 2014 due to her previous behaviour towards an administrative staff member and an interaction with others (Ms Hogan’s affidavit paragraphs 25 and 26);
b)verbal complaints from office administrator Ms Sherry Campbell from around October 2017 as to the applicant’s behaviour towards her;
c)the applicant's behaviour in the 8 December 2017 meeting;
d)other frequent difficult or disruptive behaviours at other meetings; and
e)Ms Campbell's report to Ms Hogan that she was thinking of quitting because of the applicant's behaviour (See Ms Hogan’s affidavit paragraphs 48 to 62).
Relevant to the claim made in the application are paragraphs 15 and 16 as they relate to and give details around the alleged workplace right not to be discriminated against on the basis of family responsibilities.
The applicant alleges that Ms Hogan refused to allow her to attend a trip to Dubai on the basis that she would need to take her young child.
Ms Hogan deposes to emailing the applicant to remind her to register for the Dubai trip by 4:30pm on 10 July 2017 (see tab 19 of the respondent’s index to trial bundle). Furthermore Ms Hogan says that she spoke to the applicant on 10 July by way of further follow-up and asked her whether she was going to attend the Dubai trip and was informed by the applicant that she did not intend to go on the trip.
It is relevant to note that the terms and conditions of the Dubai trip also found at tab 19 provide that all travellers must be 18 years of age and over. Ms Hogan says that she did not have a conversation with her about her infant child and that being the reason why the applicant could not attend.
The applicant asserts otherwise. I must assess the differing evidence by way of reference to the credit of the respective witnesses.
Ms Hogan at all times gave forthright and in my view honest evidence. She made concessions against interest where it was necessary to do so. On the other hand the applicant was at times very defiant and could not or would not make reasonable concessions. The applicant had a dogged determination to convince the court that she was an employee and indeed when it was put to her for example that by working hard she was growing her business the applicant answered “no I was growing Janet and Michael's business.”
Furthermore despite the fact that the supporting material was set out as guidelines and at no time did the applicant particularise when, where, or how the respondent’s communicated their request for the applicant to adhere to the manager's guidelines as compulsory rules the applicant continued to assert that the guidelines were rules. There was no evidence as to what the obligation was or what the effect of non-compliance would be that was persuasive. The applicant was argumentative and belligerent at times.
In those circumstances where there is a contradiction between the evidence of Ms Hogan and that of the applicant I prefer the evidence of Ms Hogan over that of the applicant. It follows that I do not accept that the respondents refused to allow the applicant to attend the Dubai trip due to her responsibility to care for her infant child, including the need to breastfeed that child.
The other background information relevant to the claim is found at paragraph 16 of the application. The information contained therein provides that the respondent asked the applicant to move to the rear of the room during a meeting that was held on 11 December 2017 and she did so in circumstances where there were other children present.
It is an agreed fact that Ms Hogan asked the applicant to move to the rear of the room. Ms Hogan gave evidence that she asked the applicant to move to the rear of the room because she was sitting directly behind equipment that allowed others to “Zoom” into the meeting with her young child. Ms Hogan's evidence was to the effect that she was concerned that the young child sitting so closely behind the equipment would be disruptive to the meeting and that as a result, she discreetly asked the applicant to move further to the rear of the room.
Ms Hogan conceded that there was other persons present who had children however importantly indicated that they were not in the vicinity of the “Zoom” equipment.
The applicant's evidence was that Ms Hogan created a scene and that as a result other managers said “is there any reason for that.” The applicant called no witnesses to support that assertion. The only witnesses called confirmed Ms Hogan's memory of the incident.
In those circumstances I cannot accept the evidence of the applicant. I am satisfied that Ms Hogan asked the applicant to move to the rear of the room so that the meeting could go ahead without the potential for disruption.
It is also relevant to note that the evidence supports a finding that the respondent's had a willingness to accommodate family responsibilities. The applicant herself conceded that there were other parents in the room with their young children and that children were often at meetings.
When considering the totality of the evidence I am satisfied that the reasons for the applicant's termination were as set out by Ms Hogan in her affidavit and that family responsibilities did not form any basis for the decision.
Counsel for the applicant submits the following:
“…the applicant sitting near the front of the sales meeting on 11 December 2017 with her child may be characterised as exercising parental responsibility, or may be characterised as potential disturbance to the meeting and its videocast. If the request to move to the back of the room was motivated by the latter rather than the former, then there is no discrimination. As Perram J said at [132] in Rumble:
The fact that the [applicant’s] conduct is capable of multiple characterisations merely then gives rise to a factual question about which of them was it that actuated [the decision-makers] thinking. (Rumble v the partnership trading as HWL Ebsworth Lawyers [2019] FCA 1409).”
The test in my view solely focuses upon the reasons for the action against the applicant. It is only a decision which is directly infected as a matter of subjective motivation by a prohibited reason which will make the respondent liable for breach of general protections.
I am satisfied on the evidence that the respondent's request of the applicant to move to the rear of the room was motivated by her desire to ensure that the meeting was not potentially disturbed rather than her desire to discriminate against the applicant because she was carrying out parental responsibility.
The Result
For the reasons set out above the applicant's application must be dismissed and accordingly I dismiss the application.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Associate:
Date: 13 January 2020
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