Halimee v Santarelli T/A Seaside Salon - [2014] SAEOT 6

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
HALIMEE v SANTARELLI T/A SEASIDE SALON
[2014] SAEOT 6
Judgment of Her Honour Judge Cole, Member Ms H Jasinski and Member Ms A Bachmann
23 October 2014
HUMAN RIGHTS - DISCRIMINATION - DIRECT DISCRIMINATION
The complainant alleges discrimination by the respondent, in the course of her employment, on the ground of pregnancy. The complainant was employed by the respondent as an apprentice hairdresser from November 2011 until June 2012. On 19 March 2012, the complainant informed the respondent that she was pregnant. The complainant alleges thereafter the respondent unlawfully discriminated against her, contrary to sections 85T and 85V of the Equal Opportunity Act 1984 (SA) (“the Act”). The respondent denies the allegations.
Held: Complaint partially proved. The respondent’s conduct towards the complainant changed upon learning that the complainant was pregnant. This change in conduct, combined with the respondent’s attempted termination of the complainant’s employment, constituted unlawful conduct under the Act. The complainant is awarded damages in the sum of $5,000.
Equal Opportunity Act 1984 (SA) s 85T, s 85V, referred to.

HALIMEE v SANTARELLI T/A SEASIDE SALON
[2014] SAEOT 6

On 10 October 2012, the Commissioner for Equal Opportunity referred to this Tribunal a complaint made under the Equal Opportunity Act 1984 (SA) (“the Act”) by Kate Halimee against Loretta Santarelli, trading as Seaside Salon. In her complaint, Ms Halimee alleged that Ms Santarelli discriminated against her, in the course of her employment, on the ground of pregnancy. Ms Halimee was employed by Ms Santarelli as an apprentice hairdresser from November 2011 to 4 June 2012.
At the trial of the matter, evidence was given in the complainant’s case by Ms Halimee and Ms Lee and evidence was given in the respondent’s case by Ms Santarelli and her father, Mr Santarelli.
The Act
The Act provides, in s 85T:
85T—Criteria for establishing discrimination on other grounds
(1)In this Part—
discriminate means—
…
(c)     discriminate on the ground of pregnancy; or
…
and discrimination has a corresponding meaning.
…
(4)For the purposes of this Act, a person discriminates on the ground of pregnancy—
(a)     if he or she treats a woman unfavourably because of her pregnancy or potential pregnancy; or
(b)     if he or she treats a pregnant woman unfavourably because she does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of women who are not pregnant comply, or are able to comply, with the requirement than of those who are pregnant; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)     if he or she treats a pregnant woman unfavourably on the basis of a characteristic that appertains generally to pregnant women, or on the basis of a presumed characteristic that is generally imputed to pregnant women; or
(d)     if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
The Act further provides, in s 85V:
85V—Discrimination against applicants and employees
(1)It is unlawful for an employer to discriminate against a person—
(a)     in determining, or in the course of determining, who should be offered employment; or
(b)     in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee—
(a)     in the terms or conditions of employment; or
(b)     by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or
(c)     by dismissing the employee; or
(d)     by subjecting the employee to other detriment.
The Factual Background
Ms Santarelli opened the Seaside Salon on 1 October 2011.[1] The Seaside Salon was then, and is now, a hairdressing salon which offers, in addition to hairdressing services, spray tanning, solarium tanning and waxing. Ms Santarelli is a qualified hairdresser. She is now 25 years old. She said, in evidence, that when she was 14 years old she left school and began her hairdressing apprenticeship. She worked for 18 months in a salon in Payneham, and then for a further six months at a different salon. She completed about 18 months at TAFE. Her evidence was that her apprenticeship was “signed off early” because she had taken on a responsible role at the salon she was working in at the time. She said that, at a time when an apprenticeship usually took four years, hers was signed off in about two years. She said that an apprenticeship in hairdressing presently takes three and a half years.[2] After her apprenticeship finished, Ms Santarelli worked at another salon in the city. In 2008, she was involved in a car accident, in which she was injured. She received a compensation payment in relation to that accident. With the assistance of her parents, she set up the Seaside Salon at Glenelg.
[1] Transcript p 288.
[2] Transcript p 286.
Ms Halimee began working at the Seaside Salon, as an apprentice hairdresser, in November 2011. By that time she had undertaken 15 months of training as a hairdresser at the Clip Joint. The basis of Ms Halimee’s employment by Ms Santarelli was that Ms Halimee was a second year apprentice who would progress to being a third year apprentice after six months. Ms Halimee was paid $347.41 per week, after tax.[3]
[3] Exhibit C2, paras 3-6.
Whilst Ms Halimee was employed at the Seaside Salon, Serina Lee, a qualified hairdresser, was also employed there. Another hairdresser, Deborah Smith, worked there one day per week. Ms Santarelli’s mother, Vicki Santarelli, sometimes worked there, and so did Ms Santarelli’s fiancée, Tony Sawlwin.
During the early months of Ms Halimee’s apprenticeship, a friendship developed between Ms Halimee, Ms Santarelli and Ms Lee. Ms Halimee moved in with Ms Lee. Sometimes, after work, Ms Santarelli would take Ms Halimee, and sometimes others, out to dinner. Ms Santarelli said that this continued after she discovered that Ms Halimee was pregnant. Ms Halimee said that it stopped as soon as she told Ms Santarelli that she was pregnant.[4]
[4] Transcript p 227.
On 19 March 2012, Ms Halimee told Ms Santarelli that she was pregnant. The baby was due in mid November.
The allegations of unlawful discrimination which are the subject of this matter relate to the period of time between 19 March 2012 and 4 June 2012.
Ms Halimee’s employment at the Seaside Salon ceased, and her apprenticeship was signed off as completed, on 4 June 2012. Both she and Ms Santarelli were paid about $4,000 upon the completion of the apprenticeship.[5]
[5] Exhibit C2, paras 69-70.
Ms Halimee’s son was born in November 2012. At the time that she swore her affidavit of 15 July 2013,[6] Ms Halimee had not worked since her employment at Seaside Salon ceased. She received Commonwealth parental leave payments up until July 2013. At the time of trial, Ms Halimee was studying to obtain a Bachelor of Applied Social Science (Youth Work), a course which she began in 2014.
Ms Halimee’s Complaint
[6] Exhibit C2.
Initial confidentiality
Ms Halimee told Ms Santarelli that she was pregnant on 19 March 2012. Ms Halimee alleges that she asked Ms Santarelli to keep her pregnancy confidential, but that Ms Santarelli did not do so, and instead discussed it with other employees very shortly after being told. Ms Santarelli admits that she discussed it with Ms Lee, her mother and Mr Sawlwin.[7] It was Ms Lee’s evidence that Ms Santarelli discussed the pregnancy with her, and asked “What are we going to do?”.[8] Ms Santarelli denied that she said this.[9] We prefer Ms Lee’s evidence.
[7]    Transcript p 89.
[8]    Exhibit C7, para 49.
[9]    Transcript p 89.
In order to succeed in her complaint, Ms Halimee has to show that the behaviour that she complains of is unlawful under the Act. We have considered whether Ms Santarelli’s conduct in discussing Ms Halimee’s pregnancy with Ms Lee, Mr Sawlwin and Mrs Santarelli constituted discrimination on the grounds of pregnancy by the subjecting of the employee to a detriment, contrary to s 85V(2)(d) of the Act. We do not consider that it does. In our opinion the remark made by Ms Santarelli to Ms Lee, quoted above, does not constitute discrimination on the grounds of pregnancy pursuant to s 85V(2)(d). Ms Halimee asked Ms Santarelli to keep her pregnancy confidential. However, there is no evidence that Ms Santarelli undertook to do so. Employers commonly discuss employees in the workplace and to their families. We understand that Ms Halimee wished, at the time that she told Ms Santarelli that she was pregnant, not to be discussed by Ms Santarelli. However, that does not mean that Ms Santarelli’s failure to comply with that wish constituted a detriment to Ms Halimee within the meaning of the Act, and we do not consider that it does so.
Dizzy Spell in March
It was Ms Halimee’s evidence that she had a dizzy spell on about 31 March 2012 and had to sit down for five to ten minutes. At the time, Ms Santarelli was showing Ms Halimee how to shave a customer’s head. It was Ms Halimee’s evidence, in her affidavit, that after she withdrew from the instruction on account of her dizziness:[10]
20.Ms Santarelli came through to where I was sitting and said words to the effect that she did not know what to do with me, and, how can she keep me?
[10] Exhibit C2, paras 18-22.
In evidence, Ms Santarelli said that the customer was her cousin, who was about 9 or 10 years old at the time. Ms Santarelli said that Ms Halimee’s dizzy spell lasted for the rest of the day, and that the customer waited for hours for the haircut to be finished, but that eventually Ms Santarelli finished the haircut because it was clear that Ms Halimee was not going to do it.[11] Ms Halimee denied that.[12] Ms Santarelli went on to say that Ms Halimee frequently refused to “do clients”, and wanted to come into work and look at Facebook all day on the computer.[13] This evidence sat oddly with a statement Ms Santarelli made earlier in her evidence:[14]
Q.Did you express any concern in any forum about Ms Halimee’s pregnancy.
A.No, because we had other staff to back it up, so it wasn’t going to be an issue.
Q.Keep going with the affidavit.[15]
A.Yes. I never stated that – about not continuing to be employed. She was quite a good staff member at the start and I didn’t believe that – it’s hard to find good staff so I wouldn’t want to let her go, but she seemed to think I was against her all the time when I wasn’t.
[11] Transcript p 91.
[12] Transcript pp 20-21.
[13] Transcript pp 91-92.
[14] Transcript p 90.
[15] Ms Santarelli was going through Ms Halimee’s affidavit and responding to the allegations in it.
We believe Ms Halimee’s version of this incident. We do not believe Ms Santarelli’s version. However, by itself, this incident does not constitute unlawful conduct under the Act. It is, however, relevant to the issue of Ms Santarelli’s state of mind in relation to subsequent incidents.
Spray Tanning and phone call
From the beginning of her employment at the Seaside Salon, Ms Halimee undertook the task of spray tanning customers. On about 4 April 2012, Ms Halimee noticed that when she used the spray tanning machine she felt nauseous and dizzy. It was Ms Halimee’s evidence that she discussed the issue with her doctor, Dr Simona Fischer, and Dr Fischer advised her not to do spray tanning any more. A medical certificate was subsequently provided. It was dated 11 April 2012 and it said:[16]
Please note Kate is not able to do spray tans until further notice.
[16] Exhibit C1, p 15.
Both Ms Halimee and Ms Lee said that there was a warning on the spray tan bottle which said “do not use if pregnant”.[17] Ms Santarelli denied this, but did not produce a bottle of the tanning fluid when requested to do so.
[17] Transcript p 79.
Ms Halimee telephoned Ms Santarelli in the evening of 4 April 2012, on Ms Santarelli’s mobile phone. Ms Halimee gave the following account of the telephone call, in her affidavit:[18]
25.That evening, I telephoned Ms Santarelli on her mobile telephone, to let her know that I could not continue to undertake this duty. I called her as soon as I knew I should stop spray tanning because I had a spray tanning appointment the next morning and I wanted to let her know as soon as possible about not being able to take the appointment.
26.I knew she was going out to dinner that evening but it was common for us to talk on the telephone after hours.
27.Ms Santarelli’s response was angry and rude. She told me that I was making it up, that I was using the pregnancy as an excuse to avoid the work and that if I could not perform these duties she would look to terminate my apprenticeship.
28.I was very upset by this response and Ms Santarelli and I had an altercation over the telephone. The conversation had been heated and I felt she was being unfair, telling me she would terminate my job and that I was making things up, so I was angry and said “fuck off” and hung up.
29.I did not think she had her telephone on speaker when we had this conversation.
[18] Exhibit C2, paras 25-29.
Ms Santarelli gave her version of this incident in her evidence:[19]
[19] Transcript pp 92-93.
A.So what happened that night I was out for dinner with family and friends. Kate rang me telling me that she couldn’t do spray tanning no longer, but it was a family function and I said like “We’ll talk about it tomorrow” because I hated talking about work after hours. But Kate didn’t want to wait until the next day, so she started yelling at me. She told me – she called me a, can I?
Q.Yes, say what she said.
A.She called me a fucking bitch and then she hung up on me. But I didn’t have it on loudspeaker but she was yelling at me that loud that people all around me could hear.
Q.Did you say that you thought she was using her pregnancy as an excuse to avoid the work.
A.No. Only –
Q.Did you say that if she couldn’t perform her duties you would look to terminate her apprenticeship.
A.No, the only words I said to her were “Can we speak about this tomorrow at work?” but she wouldn’t.
Q.And what did you do the next day. You see in para. 30 what she alleged you did.
In her answer to Ms Halimee’s complaint, Ms Santarelli said that Ms Halimee called her “a stupid bitch” in the course of this conversation.[20] Ms Halimee denied this.[21]
[20] Exhibit C16.
[21] Transcript p 22.
On the day following this telephone conversation, Ms Santarelli gave Ms Halimee a letter, which said:[22]
I am writing to you about your conduct during your employment with SeaSide Salon (the employer).
I am advising you that your conduct has been unsatisfactory, and that immediate improvement is required. In particular you were advised that you are not respecting management and using unethical language.
After considering the situation it is expected that your conduct improves and specifically that you start showing the appropriate respect to management and comply with all discussions from senior staff without debate and if any problems are to arise you are required to bring they up with senior staff privately and not in front of clients.
This is your first and final warning letter. Your employment may be terminated if your conduct does not improve immediately.
If you wish to respond to this formal warning letter please do so by replying in writing.
[22] Exhibit C1, p 27.
Ms Halimee responded, in writing, in the following terms:[23]
[23] Exhibit C1, p 28.
Dear Loretta,
I am writing in response to the warning you issued on Thursday April 5^th, 2012.
I am pleased that we have come to a verbal resolution of the situation and I look forward to continuing my apprenticeship at your establishment.
In reference to the incident described in the warning, I would like to assert that the incident did not take place in front of clients but rather outside working hours and over the phone.
We mutually agree that conflict or matters relating to work conditions need to be discussed at a time when clients are not present. I ask therefore, that such conversations are carried out in private and preferably at a pre-determined time.
Your response to me: “you’re making it up” when I told you about the risks associated with using the spray tanning products surprised me. I would like to reassure you that I do indeed feel dizzy when I use the product to spray tan clients. I know that this is a direct result of my pregnancy as I did not feel this way before becoming pregnant. I am concerned about your statement that if I don’t spray tan clients you would look at terminating my contract. My apprenticeship is not exclusively dependant on spray-tanning; I am at the Salon to complete my hairdressing qualification.
I have worked at seaside for six months. My record shows that I am committed and dedicated, I have had one sick day and that is when I needed to go to hospital and by the following working day I was back at work.
I can’t help but feel that since I have informed you about my pregnancy, your attitude towards me has been negatively impacted.
I sincerely hope that this is not the case and that I would be given the opportunity to continue to enjoy my work at the Salon and continue to actively contribute to a supportive and cohesive environment.
Ms Santarelli denied that Ms Halimee’s pregnancy played any part in her decision to give Ms Halimee a warning letter.
Ms Lee said, in her affidavit, that “extreme” and “volatile” language was common among the workers in the salon. Ms Halimee said, in her affidavit,[24] that the language that she had used in the telephone conversation was milder than language used by other employees to Ms Santarelli, but those other employees had not been warned.
[24] Exhibit C2, para 30.
Ms Santarelli said that Ms Halimee had been hired, in part, in reliance on her ability to spray tan. Ms Halimee said that that was not her understanding; she believed that she was hired as an apprentice hairdresser and she implied, in evidence, that it was her understanding that her experience in spray tanning was incidental.[25]
[25] Transcript p 24.
The evidence in Ms Halimee’s case fell well short of establishing as a fact that it is unsafe for a pregnant woman to operate spray tanning apparatus. We accept, however, that this was Ms Halimee’s belief when she telephoned Ms Santarelli on 4 April 2012.
An inference arises from this series of events that Ms Santarelli held concerns about the impact Ms Halimee’s pregnancy would have on her ability to perform all of the tasks she was accustomed to perform in the Salon. We do not accept that Ms Santarelli was offended or embarrassed by Ms Halimee’s language during that telephone call. It seems to us that the primary motivation for the warning was concern about the impact of Ms Halimee’s pregnancy upon the running of the salon, and a desire to set up a situation where Ms Halimee’s employment could be terminated should future events lead Ms Santarelli to the view that this would be desirable.
27 April 2012
On Thursday 26 April 2012, Ms Halimee worked at Seaside Salon for 13 hours. She said that she had only one half hour break.[26] That evening, she told Ms Santarelli that she felt unwell and may be unable to come to work the following day. She had a migraine, which she did not consider to be related to her pregnancy.[27] This is Ms Halimee’s account of what happened next, from her affidavit:[28]
39.The next morning I was still unwell and at about 7.30am I sent Ms Santarelli a text message to say I could not come in. At 8.30am I called to make sure she had received my message but she swore into the telephone and told me I had no choice but to come in for my first client. I believe she was still at home, and my call had woken her.
40.She made me feel very uneasy and I went to work because I wished to avoid conflict.
41.Because I was still unwell I left work at lunchtime and went home and fell asleep and did not see my doctor.
42.I attended work on Saturday 28 April 2012 when Ms Santarelli asked for my medical certificate for the previous afternoon and I told her I did not have one.
43.She told me that I would have to produce one, and again she said that she was sick of hearing about my pregnancy and that I was using my pregnancy as an excuse, even although I had not said I was unwell because of my pregnancy.
[26] Exhibit C2, para 38.
[27] Transcript p 23.
[28] Exhibit C2, paras 39-43.

Ms Santarelli agreed that she told Ms Halimee that Ms Halimee needed to produce a sick certificate for her time off, but she denied that she mentioned Ms Halimee’s pregnancy in this context.[29]
[29] Transcript p 95.
Ms Santarelli did not believe that Ms Halimee was sick. She said that Ms Lee told her that Ms Halimee had gone shopping.[30] There was no evidence to support this.
[30] Transcript p 295.
There was no evidence that Ms Halimee was the only employee who was required to provide a sick certificate for an absence. It has therefore not been established that, in itself, this incident was discriminatory. It is, however, further evidence of the mindset that Ms Santarelli was developing towards Ms Halimee.
3 and 4 May 2012
On 1 May 2012, Ms Halimee consulted Trainee and Apprenticeship Services, a State government agency, which referred her to the Commissioner for Equal Opportunity. On Wednesday 2 May 2012, Ms Halimee obtained a certificate from her general practitioner, who provided her with a medical certificate saying that she was unfit to work until Saturday 5 May 2012 on account of “medical condition”. Ms Halimee said that she was suffering from stress.[31] Ms Halimee was absent from work on 2 May 2012. However, on 3 May 2012, Ms Halimee contacted Ms Santarelli and told her that she would return to work the following day. They arranged to meet at 10:30am on Friday 4 May 2012, but Ms Santarelli did not attend at the appointed time. Instead, they met in the afternoon of that day. In her affidavit, Ms Halimee said:[32]
53.At that meeting I explained my concerns about Ms Santarelli’s attitude and the lack of training and I asked her what I could do to change her feelings towards me and what was needed for me to successfully complete my apprenticeship.
54.Ms Santarelli did not accept any responsibility for the problem; she said she had no suggestion about how things could be remedied because she did not think there was a problem. She told me that I could not complete my apprenticeship because I did not have the necessary skills.
[31] Exhibit C2, para 47.
[32] Exhibit C2, paras 53-54.
Ms Santarelli agreed that, at that stage, she indicated that she would not be prepared to sign off on Ms Halimee’s apprenticeship. At that stage, in her opinion, Ms Halimee did not have the necessary skills to be a fully qualified hairdresser.[33]
[33] Transcript p 98.
16 May 2012
Ms Halimee was required to attend TAFE for training as an element of her apprenticeship. Throughout her employment at Seaside Salon, she attended TAFE in the City of Adelaide. On 16 May 2012, Ms Halimee was at TAFE in the City, when, at 11:00am, Ms Santarelli telephoned her and directed her to return to the salon. Ms Halimee said that she would have to catch the bus, which would take time. Ms Santarelli told her not to bother, but to go home instead, but that she would not be paid for the day.
Ms Halimee’s general practitioner gave her a medical certificate saying that she was unfit to work from 18 May to 25 May 2012 inclusive, on account of “a medical condition”.[34] Ms Halimee said that the medical condition was stress and anxiety.[35]
[34] Exhibit C1, p 17.
[35] Exhibit C2, para 63.
On 19 May 2012, whilst she was on sick leave, Ms Halimee went out for breakfast with friends. Ms Santarelli found out about this.[36] It was put to us, on Ms Halimee’s behalf, that there was nothing surprising about Ms Halimee seeking the company of supportive friends when she was experiencing stress in her workplace.
[36] Transcript pp 186-187.
Dismissal
On Thursday 24 May 2012, Ms Santarelli gave Ms Halimee a letter purporting to dismiss her from her employment.[37] The letter said:
I am writing to you about the termination of your employment with Seaside Salon.
On 5^th April 2012 you met with Manager Loretta Santarelli. In that meeting you were advised that your conduct was unsatisfactory and that immediate improvement is required.
In particular you were advised that you were not respecting management, using very unethical language, not respecting and complying with discussions from senior staff and that any conversation regarding your employment are not to be held in front of customers.
You were told to improve or your employment will be terminated.
We consider that your performance/conduct are still unsatisfactory and have decided to terminate your employment for the following reasons above.
Based on your length of service, your notice is one week. Therefore your employment will end on 1^st June 2012.
You will also be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including your last day of employment.
If you wish to respond to this letter please do so by replying in writing and we will provide feedback.
[37] Exhibit C1, p 29.
In evidence, Ms Santarelli said that she could not recall giving Ms Halimee this letter.[38]
[38] Transcript p 99.
Ms Halimee contacted the Training Advocate and received some advice. She understood that the Training Advocate would contact Ms Santarelli. The records of the adviser in the office of the Training Advocate who dealt with Ms Halimee, Ms Nunn, were tendered in Ms Halimee’s case.[39] Ms Nunn recorded on 24 May 2012:[40]
I rang Kate re follow up from last week. Client hasn’t attended work cos of sick certificate, but is now on annual leave (as requested by employer). Kate has tried contacting the employer her about training and has requested a list from the employer of what she needs to do to complete Certificate, but employer hasn’t responded. Would like OTA to contact employer because not responding to the client. Client provided work no…. Kate also advised me that she feels uncomfortable looking for a job and not telling employer she’s pregnant (as she claims she’s been advised by people in the industry not to) and has contacted employers but upon informing them of her pregnancy, they advised her it would not be possible to transfer there. Kate now looking to get signed off.
Kate’s annual leave continues til next Thursday 31 May, but will go to TAFE to complete last module. TAFE have advised her that she is ready to be signed off once employer approves it. I asked Kate about being signed off given that last week she didn’t feel confident enough. Kate replied that now that she’s been away from her employer, she’s feeling more confident.
I advised Kate that the OTA would contact employer to discuss possibility of sign off.
[39] Exhibit C1, pp 44-63.
[40] Exhibit C1, p 54.
On 25 May 2012, Ms Nunn recorded that she had spoken to Ms Santarelli, who expressed reluctance to sign off Ms Halimee’s apprenticeship. On 30 May 2012, Mr Loizi, of the office of the Training Advocate, recorded the following conversation with Ms Santarelli:[41]
Loretta owner of Seaside Salon – Kate’s employer, telephoned to inform that she has reconsidered the option of sign off of Kate’s TC and asked whether it was possible for the sign off to be arranged ASAP. I offered information regarding credit for recognition to prior experience and competency achieved and a variation to TC will need to be completed prior to the TC signed off. I offered to assist in the process of sign off and to attend any meeting with Kate and Loretta though it a good idea and agreed. Loretta agreed that Kate did not need to return to work tomorrow because the sign off will be effective from the same day – Thursday 31/05/2012 and agreement was made for an appointment for Monday 4/06/2012 at 2.30pm at the salon to sign the documents. Loretta thanked me for my help and I offered to contact Kate and inform her of the agreed arrangements and Loretta thanked me for the offer.
[41] Exhibit C1, pp 49-50.
Mr Loizi then recorded the following conversation with Ms Halimee:[42]
I telephoned Kate and informed her of the offer from Loretta to sign off her TC. I told Kate that she was not required to attend work as the sign off will be as at Thursday 31/05/2012 and there was an arrangement to meet with Loretta at the salon on Monday 4/06/2012 at 2.30pm. Kate was very happy with the offer and stated that she will be able to complete her training at TAFE next week.
[42] Exhibit C1, p 49.
On 4 June 2012, the apprenticeship papers were signed by Ms Santarelli and Ms Halimee and Ms Halimee’s employment by Ms Santarelli came to an end. Both Ms Halimee and Ms Santarelli were paid approximately $4,000 by the State government agency.[43]
[43] Exhibit C2, paras 66-70.
Ms Halimee said that she did not ask to have her apprenticeship signed off. She said that she was in no rush to complete her training.[44] This sits oddly with the records of the office of the Training Advocate tendered in her own case.
[44] Transcript pp 21-22.
After dismissal
Ms Halimee registered as a job seeker with Centrelink and looked for work after she was dismissed, but she did not obtain another position. Her son was born in November 2012.
Ms Santarelli’s Defence
Ms Santarelli said, in evidence, that Ms Halimee was often reluctant to “do clients”, wished to be on Facebook on the computer “all day” and would claim not to be well enough to help with the work.[45] This was denied both by Ms Halimee and by Ms Lee.
[45] Transcript p 92.
Ms Santarelli’s case was that Ms Halimee’s conduct was the cause of the deterioration of their employment relationship, and that her pregnancy was not the cause of that deterioration. There was an incident on 30 April 2012 when a customer who had very long hair came in to the salon for a cut and blow-dry. The customer was sneezing, and appeared to Ms Halimee to be ill. Ms Halimee was reluctant to work on the customer’s hair for very long, because she feared becoming ill. Ms Halimee said that she asked Ms Santarelli for help, but Ms Santarelli refused to help her, so Ms Lee stepped in and helped her. Ms Santarelli said that Ms Halimee refused to work on the client and said that if Ms Santarelli made her do it “I’m killing her baby”. Ms Santarelli said that the customer had hay fever, and that her own client only wanted her to do her hair, so that she could not swap with Ms Halimee.[46]
[46] Exhibit C16, p 3; Transcript pp 45-47.
Ms Santarelli made a number of allegations about Ms Halimee’s conduct in her private life, none of which were substantiated by any evidence, and none of which are relevant to the claim the subject of this matter. We reject those allegations.
Ms Santarelli said that Ms Halimee was not “bringing an income in” because she was not “doing clients”.[47] However, the records which Ms Santarelli produced were incomplete, internally inconsistent, and, we find, unreliable.[48] Ms Lee said that they did not reflect the volume of work that she did.[49] In any event, they did not show that Ms Halimee was not “bringing an income in”. They seemed to show that she serviced fewer customers than the fully qualified hairdressers, but that she was a strong performer in relation to the sale of products. Ms Lee, in her evidence, confirmed that Ms Halimee was the strongest product seller in the salon.[50] Ms Santarelli said that she was unable to produce most of the relevant records of Seaside Salon because the salon was broken into in February 2014 and a lot of paperwork was stolen, including Ms Halimee’s time book. In cross examination, Ms Santarelli conceded that Ms Halimee brought into the salon, by way of takings, far more than she was paid.[51]
[47] Transcript p 99.
[48] Exhibit R6.
[49] Transcript p 77.
[50] Transcript p 78.
[51] Transcript p 122.
In cross examination, Ms Santarelli, having conceded that Ms Halimee earned money for the salon, said that she dismissed her because “she wasn’t helping at the salon much” and she had a bad attitude.[52] She repeated her earlier claim that Ms Halimee liked to be on Facebook on the computer at work. In all of the previous pleadings and correspondence, this allegation had never been raised. It was raised for the first time by Ms Santarelli in evidence. Ms Lee, in cross examination from Ms Santarelli, said that Ms Halimee’s performance “toward the end”[53] was “fine”.[54] Ms Lee could not recall complaining to Ms Santarelli that Ms Halimee would not mop the floor.[55] Ms Santarelli produced a list of allegations against Ms Halimee that she said she had compiled over time.[56] It said:
bad mouthing to clients and in front of
- Hardly any attendance at work
- Refusal to come to work from TAFE on extra day
- Not listening and obeying senior staff
- Attitude and swearing to employer
- Not doing any training
- Refused to mop floor
We will deal with the allegations in the list in turn.
[52] Transcript p 139.
[53] The end of her employment.
[54] Transcript p 83.
[55] Transcript p 83.
[56] Exhibit C11.
“Bad mouthing”
In cross examination, Ms Santarelli said that she could not recall the name of the client to whom Ms Halimee had “bad mouthed” the salon. She said that the client was the wife of her aunt’s cousin, that her aunt had passed on the story to her and that she had later met the client at her aunt’s house and the client had told her the story.[57] Ms Santarelli’s evidence on this point was highly implausible, and we do not believe it. There is no credible evidence of Ms Halimee “bad mouthing” the salon.
[57] Transcript p 150.
“Hardly any attendance at work”
Ms Santarelli said that Ms Halimee often called in sick. She said that Ms Halimee “was hardly there”.[58] However, when pressed, Ms Santarelli’s memory was very poor regarding this issue.[59] On the evidence, Ms Halimee, in fact, had medical certificates for all but one day of her absences.
[58] Transcript p 238.
[59] Transcript p 239.
“Refusal to come to work from TAFE on extra day”
We prefer Ms Halimee’s version of the events of 16 May 2012, when Ms Santarelli required her to leave the training at TAFE and come to the Salon. We find that Ms Santarelli’s behaviour on that day was not reasonable. Ms Santarelli gave no explanation as to why she required Ms Halimee to abandon her training at TAFE on 16 May 2012.
“Not listening [to]and [not]obeying senior staff”/”Refused to mop floor”
There is no credible evidence that Ms Halimee did not listen to or obey senior staff, or that she refused to mop the floor. There is evidence that she swore at Ms Santarelli over the phone on 4 April 2012 in the conversation about spray tanning, but we accept that this occurred in the context of a work relationship which was also a social relationship between two women of a similar age, and did not constitute misconduct as an employee. There is no credible evidence that Ms Halimee had a bad attitude to her employment.
“Not doing any training”
There is no evidence that Ms Halimee was “not doing any training”. We accept that she was unable to finish the clipper cut for Ms Santarelli’s 9 year old cousin because she felt dizzy.
Ms Santarelli said that she was declared bankrupt in March 2014. No other evidence regarding that was forthcoming. Seaside Salon is still trading. Ms Santarelli said that she was on maternity leave. She said that the salon had never paid her a wage, but that she had been in receipt of Centrelink payments throughout.[60] She said that she ran the salon as a hobby.[61]
[60] Transcript p 113.
[61] Transcript p 116.
Credibility
We are unable wholly to believe the evidence of Ms Santarelli or Ms Halimee.
Ms Santarelli’s conduct through much of the trial was unusual. She repeatedly attempted to delay the proceedings, twice causing an ambulance to be called to deal with her complaints about her health, and repeatedly asserting that she was experiencing odd symptoms which should bring about the adjournment of the matter.[62] On the first occasion, the proceedings were, indeed, adjourned at her request. When, on the second occasion, the paramedics could not find a problem with her health, and the matter continued, Ms Santarelli’s symptoms eventually abated. Ms Santarelli made implausible statements about things that she claimed to have been told by Court staff and by officers of the Legal Services Commission.[63] Clearly, the accounting records of the Seaside Salon are a mess. Ms Santarelli claimed that this was partly on account of a burglary, which she implied had been carried out by two former staff members. Ms Santarelli had a tendency, from time to time, to say whatever she thought would suit her case in the moment. At times, her memory was very poor. At other times, she seemed quite frank and her recollection seemed good. We take into account the fact that Ms Santarelli represented herself and clearly found the experience extremely stressful.
[62] Transcript p 69.
[63] Transcript pp 13, 160-164.
Ms Halimee presented well in evidence. She had the benefit of counsel. However, in respect of the question as to whether she wished her apprenticeship to be signed off, her evidence was inconsistent with the telephone records tendered in her case. We believe the telephone records, which are consistent with the events of the time, including the signing off of the apprenticeship by both parties. We believe that the relationship between Ms Halimee and Ms Santarelli was far more complex than an employee/employer relationship, having regard to the evidence of their initial friendship and their relative ages.
Discrimination
Ms Halimee bears the onus of proving unlawful discrimination on the balance of probabilities. Having regard to all of the evidence of the employment relationship between Ms Santarelli and Ms Halimee from 19 March 2012, when Ms Halimee told Ms Santarelli she was pregnant, until 4 June 2012, when the apprenticeship was signed off, we find that Ms Santarelli changed her attitude to Ms Halimee on account of her pregnancy. We find that, once she knew Ms Halimee was pregnant, she treated her, in the work context, with an element of suspicion and distance which had not previously been present between them. This led, ultimately, to the attempted termination of the employment relationship by Ms Santarelli. That change in behaviour, and the attempted termination, constituted unlawful conduct, contrary to s 85V(2)(d) of the Act. The actual termination of the employment relationship, however, did not occur solely on account of Ms Santarelli’s attitude. Ms Halimee clearly decided in May 2012 that she would prefer to have her apprenticeship signed off, and her employment terminated, than to attempt to redeem her relationship with Ms Santarelli. It is clear from the records of the office of the Training Advocate that it was Ms Halimee’s decision to seek the signing off of her apprenticeship which set in motion the ultimate, valid, conclusion of her employment.
Ms Halimee, at trial, claimed damages as follows:
1.Loss of income of $9,000 being 26 weeks at $347.41 per week, the period of 26 weeks representing the balance of what was expected to be her apprenticeship at the commencement of her employment with Ms Santarelli.
2.Future loss of income in the sum of $1,000.
3.$5,000 on account of injury to feelings.
Both Ms Halimee and Ms Santarelli were paid $4,000 upon the signing off of the apprenticeship. They would have received this sum six months later, had the original employment contract remained on foot. Ms Halimee signed the document ending her apprenticeship and therefore her employment.[64]
[64] Exhibit C1, p 37.
Ms O’Connor argued that Ms Halimee should be compensated for the loss of her career as a hairdresser on account of the fact that, although she had paperwork to say that she was fully qualified, she did not feel confident enough in her work as a hairdresser to apply for positions. Given Ms Halimee’s complicity in the signing off of her apprenticeship, we reject this argument.
We note that no medical evidence was adduced in the matter, so that there is no medical evidence as to what the “medical condition” cited on the medical certificates for Ms Halimee was, and there is no evidence that there is any psychological injury to Ms Halimee arising from Ms Santarelli’s conduct.

In all of the circumstances, an award of damages in the sum of $5,000 representing injury to feelings, is the appropriate award. There will be an order accordingly.