HEIKKINEN and EDITH COWAN UNIVERSITY
[2007] WASAT 321
•31 DECEMBER 2007
HEIKKINEN and EDITH COWAN UNIVERSITY [2007] WASAT 321
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 321 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:73/2006 | 2 TO 4 APRIL 2007 | |
| Coram: | JUDGE J ECKERT (DEPUTY PRESIDENT) DR D STEPNIAK (SENIOR SESSIONAL MEMBER) MS K LANG (SESSIONAL MEMBER) | 30/12/07 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Complaint dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAULA HEIKKINEN EDITH COWAN UNIVERSITY |
Catchwords: | Equal opportunity Indirect and direct discrimination in employment on the grounds of family responsibility Relevant comparator Costs order where offer of settlement |
Legislation: | Equal Opportunity Act 1984 (WA), s 4, s 5, s 35A(1), s 35(A)(2), s 35B(1), s 35B(2), s 89, s 90, s 161 State Administrative Tribunal Act 2004 (WA), s 87 State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42 |
Case References: | Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13 Cocks MacNish v Biundo [2004] WASCA 194 Demar and Commissioner of Police [2006] WASAT 198 Dowling v Bowie (1952) 86 CLR 136 Ghockson v Commissioner of Police (Unreported; Equal Opportunity Tribunal; No 92798; 29 November 1995) Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 Lennon and State Housing Commission [2006] WASAT 344 Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 State Housing Commission v Martin (Unreported; Supreme Court of Western Australia; Lib No 90699; 15 October 1998) Williams and Commissioner of Police [2005] WASAT 349 |
Orders | 1. The proceedings against the respondent are dismissed.,2. Costs of $1939.96 are awarded to the respondent payable by the applicant to the respondent by 15 February 2008. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : HEIKKINEN and EDITH COWAN UNIVERSITY [2007] WASAT 321 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT)
- DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
MS K LANG (SESSIONAL MEMBER)
- Applicant
AND
EDITH COWAN UNIVERSITY
Respondent
Catchwords:
Equal opportunity Indirect and direct discrimination in employment on the grounds of family responsibility Relevant comparator Costs order where offer of settlement
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 5, s 35A(1), s 35A(2), s 35B(1), s 35B(2), s 89, s 90, s 161
State Administrative Tribunal Act 2004 (WA), s 87
(Page 2)
State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42
Result:
Complaint dismissed
Category: B
Representation:
Counsel:
Applicant : Mr L Pilgrim
Respondent : Ms M Cash
Solicitors:
Applicant : Pilgrim & Associates Industrial Relations Consultants
Respondent : Freehills
Case(s) referred to in decision(s):
Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13
Cocks MacNish v Biundo [2004] WASCA 194
Demar and Commissioner of Police [2006] WASAT 198
Dowling v Bowie (1952) 86 CLR 136
Ghockson v Commissioner of Police (Unreported; Equal Opportunity Tribunal; No 92798; 29 November 1995)
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
Lennon and State Housing Commission [2006] WASAT 344
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
State Housing Commission v Martin (Unreported; Supreme Court of Western Australia; Lib No 90699; 15 October 1998)
Williams and Commissioner of Police [2005] WASAT 349
(Page 3)
Summary of Tribunal's decision
1 Ms Heikkinen claimed that her former employer, Edith Cowan University, discriminated against her on the basis of her family responsibilities by failing to return her to her substantive position of employment on a part-time basis on the expiry of her parental leave.
2 The University demonstrated that it frequently employed staff both with and without family responsibilities, in part-time positions, after undertaking its standard assessment of its operational requirements.
3 Several witnesses gave evidence that Ms Heikkinen had expressed a clear intention not to return to her previous position and that she requested that she be given a position with less responsibility on her return from parental leave. The Tribunal accepted that evidence in preference to Ms Heikkinen's contrary evidence. The Tribunal was therefore satisfied that if Ms Heikkinen had sought to return to her substantive position part-time, the University would have followed its usual procedure of assessing the operational requirements of that position. No such assessment was undertaken in this case due to Ms Heikkinen's specific request for a part-time appointment with less responsibility than her substantive position.
4 The Equal Opportunity Act 1984 (WA) requires the Tribunal to apply a notional comparator when deciding if the University's conduct was discriminatory. It found that the relevant comparator was an employee who did not have the same family responsibilities as Ms Heikkinen, and who sought to return to their substantive position on a part-time basis after returning to work from a period of extended leave. The Tribunal found that Ms Heikkinen was not treated less favourably than this notional comparator and that there was no evidence of direct discrimination.
5 The Tribunal also found no evidence to support Ms Heikkinen's claim that the University indirectly discriminated against her by requiring her to return to work full-time in her substantive position after her parental leave.
6 Ms Heikkinen's application was therefore dismissed. The Tribunal awarded costs of $1939.96 to the University.
(Page 4)
Background
7 Ms Heikkinen was employed by Edith Cowan University from September 1999 to May 2005, initially as Mount Lawley campus Student Village housing officer (later renamed housing manager), at Higher Education Work Level 5 (HEW5) pursuant to the Edith Cowan General Staff Agreement (the Agreement).
8 In May 2000, Ms Heikkinen commenced 52 weeks parental leave. Shortly before commencing leave, Ms Heikkinen met with her then manager, Mr Divine, to discuss her return to work on a part-time basis.
9 In March 2001, Ms Heikkinen met with her new manager, Mr Hume, and a human resources representative, Mr Schmidt, to discuss her return to work. Ms Heikkinen requested a part-time HEW5 position. Mr Hume advised that such a position was not currently available but he and Mr Schmidt would both search for a suitable position for Ms Heikkinen.
10 In May 2001, Ms Heikkinen met with Mr Hume and Mr Dunstan, a different human resources representative, to discuss her return to work. Ms Heikkinen was advised that a part-time HEW5 position was not available at that time. Ms Heikkinen signed an application for leave without pay for three months.
11 In August 2001, Ms Heikkinen again met with Mr Hume and Mr Dunstan and signed an application form for a further three months leave without pay.
12 In October 2001, Ms Heikkinen asked Mr Hume about an available HEW3 part-time position in student housing at Joondalup. Ms Heikkinen submitted an expression of interest soon after and was appointed to this position, which she commenced on 22 November 2001.
13 In August 2003, Ms Heikkinen lodged a formal grievance claim seeking compensation from the University for her loss of HEW5 entitlements from May 2001. In January 2004, the University offered Ms Heikkinen a part-time HEW5 position, which she did not accept.
Complaint to the Commissioner for Equal Opportunity
14 In April 2004, Ms Heikkinen lodged with the Commissioner for Equal Opportunity (the Commissioner) a complaint of family responsibilities discrimination in the area of employment against the University. The Commissioner investigated and unsuccessfully attempted to conciliate Ms Heikkinen's complaint. By letter dated 3 October 2006, the Commissioner advised Ms Heikkinen that she was dismissing the complaint as lacking in
(Page 5)
- substance in accordance with s 89 of the Equal Opportunity Act 1984 (WA) (the Act). On 31 October 2006, following Ms Heikkinen's request under s 90 of the Act, the Commissioner referred the complaint to this Tribunal.
The hearing
15 We heard this matter over three days from 2 to 4 April 2007. We had before us the parties' Statements of Issues, Facts and Contentions, and a volume of documents and witness statements from each party. A number of documents were tabled at the hearing. Counsel for both parties made oral opening and closing submissions.
16 Ms Heikkinen filed a witness statement and gave oral evidence and was cross-examined. Ms Heikkinen summonsed one witness, Ms Tammen, having previously filed and served her witness statement.
17 The University called the following witnesses, having previously filed and served witness statements for each of them: Mr McGann, Ms Harford, Ms Copleston, Mr Dunstan, Ms Roza and Mr Hume. Mr Schmidt and Mr Divine were not called.
18 We delivered our decision ex tempore on 4 April 2007 after hearing oral closing submissions. These are our reasons for decision. At the conclusion of the hearing, the University sought an order for costs and each party was given time to file written submissions regarding the costs application. We set out below our decision and reasons for ordering that the applicant pay costs to the respondent.
Direct and indirect discrimination claims
19 Ms Heikkinen alleges in her Statement of Issues, Facts and Contentions and in her witness statement that the University directly discriminated against her on the grounds of her family responsibilities, contrary to s 35(A)(1) of the Act by:
1) refusing to allow her to return to work in a part-time capacity in her position of student village manager HEW5 when the University allowed the other student village manager (at Joondalup) to work reduced hours because of her family responsibilities. The University had evidence that this position could be successfully worked part-time, and it financially disadvantaged her by obliging her to either accept employment on a lower grade following her return to work after parental
- leave or to resign her position;
- 2) failing to comply with the provisions of the Agreement by failing to allow or to offer to allow her to revert to her former position in a full-time capacity following work in a part-time capacity after a period of parental leave;
3) failing to act expeditiously to facilitate her return to work after a period of parental leave; and
4) obliging her to accept employment on a lower grade following return to work after parental leave or to resign her position.
20 Ms Heikkinen claims the loss of financial benefits of $68,261, capped at $40,000. Ms Heikkinen particularised this claim in her Schedule Financial Loss - Wages.
21 During the hearing, Mr Pilgrim, on behalf of Mr Heikkinen, clarified her claim included a complaint of indirect discrimination under s 35A(2) of the Act. Ms Heikkinen submitted that the University required her to return to her substantive position on a full-time basis after her parental leave, and that she was unable to comply with this requirement due to her family responsibilities.
22 The University does not dispute that Ms Heikkinen has family responsibilities within the meaning of s 4 of the Act but denies that it unlawfully discriminated against Ms Heikkinen on the grounds of her family responsibilities or that it treated Ms Heikkinen differently from any other employee, without Ms Heikkinen's family responsibilities, in the same circumstances.
23 The University asserts that it acted properly in searching for suitable alternative part-time positions for Ms Heikkinen at the conclusion of her parental leave, because of Ms Heikkinen's own request not to return to her substantive position. The University also asserts that Ms Heikkinen did not accept the opportunity to apply for part-time HEW5 positions as they became available, and she willingly applied for the part-time HEW3 position to which she was ultimately appointed. Ms Heikkinen retained the option of returning to her substantive position until she commenced work in the HEW3 position on 22 November 2001.
(Page 7)
24 The University also denies that it imposed on Ms Heikkinen a requirement or condition with which she was unable to comply due to her family responsibilities. The University asserts that there was no requirement for any employee to return to work full-time in order to retain their substantive position of employment, and that the evidence clearly demonstrates that it employs many people on part-time employment arrangements for a variety of reasons, including their family responsibilities. Ms Heikkinen specifically requested the University place her in a different position, part-time, which it did.
Relevant legislation
25 Mr Pilgrim indicated in his opening address that Ms Heikkinen alleges both direct and indirect discrimination in the workplace, pursuant to s 35A(1)(a), (b) and (c); s 35A(2)(a), (b) and (c); s 35B(1)(a), (b) and (c); s 35B(2)(a) and (b), and s 35B(2)(d) of the Act.
26 Section 4 of the Act provides:
"family responsibility or family status", in relation to a person means -
(a) having responsibility for the care of another person, whether or not that person is a dependant, other than in the course of paid employment;
(b) the status of being a particular relative; or
(c) the status of being a relative of a particular person;"
27 Section 35A of the Act sets out what constitutes discriminatory conduct on the ground of family responsibility. Section 35A(1) defines direct discrimination and s 35A(2) defines indirect discrimination:
"(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 family responsibility or family status if, on the ground of —
(a) the family responsibility or family status of the aggrieved person;
- (b) a characteristic that appertains generally to persons having the same family responsibility or family status as the aggrieved person; or
(c) a characteristic that is generally imputed to persons having the same family responsibility or family status as 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 who does not have such a family responsibility or family status.
- (2) 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 family responsibility or family status if the discriminator requires the aggrieved person to comply with a requirement or condition —
(a) with which a substantially higher proportion of persons not of the same family responsibility or family status as the aggrieved person comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply." (original emphasis)
"(1) It is unlawful for an employer to discriminate against a person on the ground of the person's family responsibility or family status -
(a) in the arrangements made for the purpose of determining who should be offered employment;
- (b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
- (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibility or family status -
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the access of the employee, to opportunities for promotion, transfer or training or to any other benefits associated with employment;
…
(d) by subjecting the employee to any other detriment.
(3) Nothing in subsection (1) renders it unlawful for a person to discriminate against another person, on the ground of the other person's family responsibility or family status, in connection with employment to perform domestic duties within a private household in which the employer resides.
(4) Nothing in this section renders it unlawful for a person to do an act a purpose of which is to afford persons with a particular family responsibility or family status rights, benefits or privileges in connection with that family responsibility or family status."
What must Ms Heikkinen prove?
29 To establish her claim of direct discrimination, Ms Heikkinen must prove, on the balance of probabilities, that the University treated her less favourably than it would have treated an employee in the same, or not materially different, circumstances as Ms Heikkinen but without her family responsibilities. Ms Heikkinen must then prove that this less favourable treatment was causally connected to her family responsibilities.
(Page 10)
30 In relation to her claim of indirect discrimination, Ms Heikkinen must prove on the balance of probabilities that the University required her to comply with a requirement or condition with which she was unable to comply due to her family responsibilities and which was unreasonable having regard to her circumstances.
The witnesses
Ms Tammen's evidence
31 Ms Tammen gave evidence that she visited the Mount Lawley campus housing office on 27 April 2000 and overheard Ms Heikkinen asking Mr Divine if she could return to her substantive role part-time after taking parental leave. Mr Divine replied that under no circumstances would he make either of the student village manager roles part-time but that there would be another position for her to return to in May the following year.
32 In 2003, Ms Heikkinen contacted Ms Tammen to ask if she recalled the conversation, as she was considering taking action against the University. Ms Tammen signed a witness statement on 8 March 2007.
33 Ms Tammen was not cross-examined.
Ms Heikkinen's evidence
34 Ms Heikkinen gave the following evidence by way of witness statement and oral evidence at the hearing.
35 Ms Heikkinen was employed by the University from September 1999, initially as a level HEW5 student village manager. Her terms and conditions were governed by the Agreement. On 1 May 2000, she commenced 52 weeks parental leave in accordance with cl 45 of the Agreement.
36 Prior to taking leave, Ms Heikkinen says that she told her then manager, Mr Divine, that she wanted to return to her substantive position on a part-time basis. Mr Divine informed her that he would not make the HEW5 student village manager position available part-time but that upon her return from leave there would be another HEW5 position available in which she could work part-time. Mr Divine left the University before Ms Heikkinen returned from leave and did not testify at the hearing.
37 Ms Heikkinen gave evidence that in March 2001, approximately four weeks prior to the expiration of her parental leave, she met with her new manager, Mr Hume, and a human resources officer, Mr Schmidt, at which time she told
(Page 11)
- them she wished to return to work on a part-time basis, the details of which were negotiable.
38 Ms Heikkinen gave evidence that Mr Hume and Mr Schmidt told her that she could not return to her substantive position on a part-time basis and that no other part-time HEW5 positions were currently available, but that they would look for such a position for her.
39 Ms Heikkinen's parental leave expired on 30 April 2001. In May 2001, she attended a meeting with Mr Hume and Mr Dunstan, the new human resources officer, at which time she was given details of an advertised part-time HEW5 position in Governance (also referred to as Chancellery). Ms Heikkinen told the Tribunal that she did not seek appointment to this position as she considered it to be unsuitable. In any event, the position was not ultimately created.
40 At this meeting, Ms Heikkinen was asked to sign a leave without pay form for the period May 2001 to July 2001, which she did. At no time was any offer made to reinstate Ms Heikkinen to her substantive position. She says that it was always her intention to resume this position after a period of part-time employment.
41 Ms Heikkinen and Mr Hume met again in early August 2001. Mr Hume gave her details of an advertised part-time HEW5 position in the Faculty of Mathematics. She did not apply for this position.
42 Ms Heikkinen asked Mr Hume about a temporary HEW3 housing assistant's role at Mount Lawley which she could take until she could resume her substantive position. He told her there were no part-time positions available and asked her to sign another leave without pay form covering the period August to October 2001, which she says she signed because she felt that she had no other option.
43 In October 2001, Ms Heikkinen again met with Mr Hume and Mr Dunstan. Ms Heikkinen gave evidence that she was told she had to either resign or accept a Joondalup HEW3 housing assistant position on a job-share basis.
44 On 22 October 2001, Ms Heikkinen emailed to Mr Hume an expression of interest in the HEW3 position which she described as a "permanent" position. Mr Hume telephoned to tell her that she had got the job. On 1 November, Ms Heikkinen emailed Mr Hume as follows: "Thanks so much for the offer and I certainly accept and look forward to
(Page 12)
- starting again soon." She resigned from her other place of employment, where she had been working whilst on parental/extended leave from the University, and commenced work in the HEW3 position on 22 November 2001.
45 The written Offer of General Staff Appointment - Housing Assistant HEW3 was signed by Ms Heikkinen on 11 December 2001. The contract describes the position as "ongoing" and 50% of full-time.
46 Ms Heikkinen says she only applied for this position because the alternative was termination of her employment by the University. She made it clear at all times that she wished to revert to her previous grading and she considered this a secondment rather than a permanent appointment. The University had allowed other employees to revert to part-time employment following parental leave and it had agreed to reduced hours of work for the Joondalup Student Village manager on the grounds of family responsibility.
47 Under cross-examination, Ms Heikkinen denied that she told Mr Hume both that she was not able to make the level of commitment required to return to her substantive position as student village manager, and that this position was not a role which could be undertaken on a part-time basis. Ms Heikkinen also denied that she had requested a part-time administrative position or that she discussed with Mr Hume the type of work that she would like when she returned from her leave.
48 There were clear conflicts between Ms Heikkinen's evidence and that of the University's witnesses and the documentary evidence. The documentary evidence notably fails to corroborate Ms Heikkinen's central assertion that she requested that she return to her substantive position on a part-time basis.
49 Ms Heikkinen's admission that the University offered her the opportunity to apply for two part-time HEW5 positions contradicts her signed Statement of Issues Facts and Contentions dated 3 January 2007, in which she asserts at paragraph 40:
"Apart from the offer of an unsuitable HEW5 position in January 2004, no part time positions at HEW5 were ever offered to me."
50 Ms Heikkinen's evidence, that she only accepted the HEW3 appointment out of frustration at the delays in getting back to work at the University and because she was told she would otherwise have to resign (or that the University
(Page 13)
- would terminate her employment), is inconsistent with her email to Mr Hume dated 1 November 2001:
"I have had a lengthy consideration of my start date at Joondalup in acceptance of my offer.
THANKS so much for the offer and I do certainly accept and look forward into [sic] starting soon!
However, due to the standard of community involvement and projects of my current position (being the BUSIEST time of the year) I hope to start with Joondalup ECU after the xmas/new year closure.
This will enable me to 'wrap' up these projects and assist in the schemes Southcare has set up for the community being Christmas. (Not to mention the monthly and bi annual reports etc). This will be my way of thanking this organisation.
I hope you will consider my request in starting at Joondalup as Housing Assistant Officer at the commencement of the New Year.
Again thanks again for this opportunity to get back into the Student Village and am looking forward to it!
Have a great Day!"
51 Mr McGann's evidence was limited to his knowledge of a review of the classification of the HEW3 student village roles that was undertaken by Mr Dunstan on behalf of the University in 2003.
Ms Harford's evidence
52 Ms Harford is the manager of Commercial Services at the University. She was responsible for investigating Ms Heikkinen's grievance in 2003. In January 2004, Ms Harford offered Ms Heikkinen a part-time HEW5 position as off campus housing officer, which Ms Heikkinen declined. In cross-examination, Ms Harford confirmed that the position was not ultimately filled and no longer exists.
(Page 14)
Ms Copleston's evidence
53 During Ms Heikkinen's parental leave from May 2000 to April 2001, Ms Copleston was employed on a 12-month contract to act in Ms Heikkinen's substantive position as Mount Lawley student village housing manager. This 12-month contract was extended to October 2001 while Ms Heikkinen was on unpaid leave after the conclusion of her parental leave.
54 Ms Copleston was then appointed permanently to the Mount Lawley student village manager position. She considered that this position was not suitable for a part-time arrangement due partly to the pastoral care requirement and the nature of the student issues which arose. Continuity was an important aspect of the role for both the students and the staff who reported to the manager, all of whom were part-time.
55 Ms Copleston was cross-examined at length on the requirements of this role. She had approval to work extra hours so that she could leave work at 1.30 pm on Fridays for personal reasons but she rarely did so. She felt that it is essential that the manager be present in the student village on a daily basis due to the level of pastoral care and relationship building required to adequately service the student residents. The role also required that she be contactable out of work hours.
Mr Dunstan's evidence
56 Mr Dunstan was employed by the University from 17 April 2001 to 23 September 2005. From 17 April 2001 to 23 September 2003 he was human resources account manager in the Facilities and Services Division, which included student housing. He now lives and works in Melbourne.
57 Mr Dunstan gave evidence that the University provides flexible working arrangements for its staff. Requests for part-time work are initially assessed by the relevant in-line manager, who takes into account the staff member's proposal, the nature of the role and the requirements of the University. On numerous occasions a trial arrangement is implemented. A decision is then made if the role can be worked on the flexible basis requested. If a request for flexible work arrangements is declined, the human resources department may become involved to assess whether the decision is reasonable.
58 Mr Dunstan gave evidence that Mr Hume told him that Ms Heikkinen was on parental leave until 30 April 2001 and that she wished to return to work at the University on a part-time basis. In May 2001, Mr Hume asked him to
(Page 15)
- attend a meeting with Ms Heikkinen to consider her request for unpaid leave. Mr Dunstan did not attend a previous meeting with Ms Heikkinen in March 2001, as Mr Schmidt held the relevant human resources position at that time.
59 In May 2001, Mr Dunstan met with Ms Heikkinen and Mr Hume at the University's Churchlands office. Mr Dunstan says that at the meeting, Ms Heikkinen made it very clear that she requested unpaid leave, that she wished to return to work at the University part-time and that she was only interested in work at the level of HEW5. There was some discussion as to the sort of roles Ms Heikkinen would like to move into. It was clear to Mr Dunstan that she was interested in a role different from her substantive position.
60 Mr Dunstan states at page 3 of his signed witness statement:
"There is no truth in Ms Heikkinen's assertion that she was forced to extend her leave without pay. She made the request to take unpaid leave".
61 Mr Dunstan was cross-examined at length on this point and did not waver. Mr Dunstan told Ms Heikkinen at the meeting that he was not aware of any available part-time HEW5 positions. He testified that Ms Heikkinen seemed pleased that her unpaid leave was extended a further three months.
62 On 2 August 2001, Mr Dunstan sent Ms Heikkinen an email advising her of a part-time HEW5 position which may be available in Chancellery. She was not interested in applying. In any event, the position was not ultimately created.
63 In August 2001, Mr Dunstan attended a further meeting with Mr Hume and Ms Heikkinen. She restated that she wanted to return to work in a part-time position. At this time, no suitable part-time position had been identified. Ms Heikkinen requested another period of unpaid leave. Mr Dunstan states at page 4 of his witness statement:
"(d) I recall that Mr Hume asked her if she wanted to return to her Student Village Manager role. She said No.
(e) Ms Heikkinen did say that she would be interested in other roles at the University apart from HEW 5 levels including a HEW 4 level role. She said that she was interested in administrative roles."
(Page 16)
64 Mr Dunstan encouraged Ms Heikkinen to monitor the University's jobs website and to contact him if anything was advertised on the site which interested her. He also actively looked for suitable positions on her behalf.
65 In October 2001, Mr Hume advised Mr Dunstan that Ms Heikkinen was very interested in a part-time HEW3 position in the housing village team at Joondalup. Ms Heikkinen was appointed to this position in November 2001.
66 Mr Dunstan stated several times during his cross-examination that at no stage did Ms Heikkinen tell him that she wanted to return to her substantive position, part-time or otherwise.
67 Mr Dunstan is no longer an employee of the University and impressed the Tribunal as an impartial witness. He was vigorously cross-examined and gave consistent, credible answers throughout his evidence. We find that he is a reliable and truthful witness and we prefer his evidence where inconsistent with the evidence of Ms Heikkinen.
Ms Roza's evidence
68 Ms Roza has held the position of the University's Employee Relations Officer (Equity and Diversity) since April 2003. Ms Roza gave evidence that Ms Heikkinen's move to the part-time HEW3 position was a permanent move into a different position from that which she previously held. A new contract had issued to reflect the offer and acceptance of the new position.
69 Ms Roza gave evidence of the University's policy on employees returning to work from a period of parental leave. University employees may apply to return to work on a part-time basis under the current Parental Leave Policy and Guidelines, and previously in the relevant Agreement.
70 At page 5 of her signed witness statement, Ms Roza states:
"A request by an employee for flexible working arrangements in their substantive position is not automatically granted. This is because prior to any flexible working arrangement being put in place the relevant manager must consider the employee's proposal in terms of the employee's substantive role and the needs of the University. Often a trial arrangement is undertaken before a final decision is made as to
(Page 17)
- whether the flexible work arrangements can be adopted."
71 Ms Roza gave examples of various applications for flexible working arrangements which have been granted or refused by the University after the completion of the assessment procedure. These examples included employees seeking part-time working arrangements due to family responsibilities, study commitments and for various other reasons. Ms Roza gave evidence that the University undertook the same assessment process for each employee requesting flexible working arrangements.
72 Ms Roza gave evidence that the University employed a HEW5 level student village manager at both the Joondalup campus and the Mount Lawley campus. Ms Heikkinen held this position at Mount Lawley until 2001. At page 9 of her signed witness statement, Ms Roza states:
"The duties at both the Mount Lawley and Joondalup Campuses were the same but in 2001 the Mount Lawley student village was always full and had a more diverse student population including students from interstate and overseas. This meant that the Mount Lawley Student Village manager position had a higher workload than the one at Joondalup."
73 Ms Roza became aware of Ms Heikkinen's grievance on 26 August 2003 when she received a copy of the grievance notice. Ms Roza was responsible for advising Ms Heikkinen on the grievance procedure, assisting with that process and for providing advice to the University as required. She considered it unusual that Ms Heikkinen lodged her grievance two years after the event. The records gave no indication that Ms Heikkinen had any concerns in the intervening period.
74 At page 14 of her signed witness statement, Ms Roza stated:
"In investigating Ms Heikkinen's grievance the records show that Ms Heikkinen was granted an additional six months leave without pay at the end of her maternity leave while vacancies within the University were monitored for potential part-time work opportunities. There was no record of any request by Ms Heikkinen to return to her substantive position in any capacity."
(Page 18)
75 Mr Hume and Mr Dunstan recounted to Ms Roza the circumstances of Ms Heikkinen's return to work in the same terms as their evidence during the hearing.
76 Ms Roza gave evidence that some time after lodging her grievance, Ms Heikkinen became aware that the student manager at Joondalup Campus was on a part-time arrangement. Ms Heikkinen expressed dissatisfaction that a part-time arrangement for the Mount Lawley student manager position was not made available to her in 2001.
77 Ms Roza testified that the Joondalup student village manager had been granted a flexible work arrangement as a result of her request to work 30 hours over five days, due to her family responsibilities. This arrangement permitted daily continuity with the students. The manager worked overtime on many occasions. A similar arrangement was not considered with Ms Heikkinen in 2001 because she expressly sought part-time work in a different position with less responsibilities, for two or three days a week.
78 During cross-examination, Ms Roza explained the process that the University follows when a person returning to their substantive position after a period of extended leave seeks a part-time arrangement. Mr Pilgrim did not put to Ms Roza that the University imposes a condition or requirement that employees must return full-time to their positions.
79 Ms Roza was cross-examined as to the Agreement and agreed that cl 45 provided that someone returning from parental leave could seek a flexible work arrangement by agreement with the University. Flexible working arrangements are commonplace at the University.
80 Ms Roza impressed as impartial and very experienced. We were impressed with her credible and compelling evidence, citing actual case histories, and her evidence that all applications for part-time work are assessed by the University on the same basis.
Mr Hume's evidence
81 Mr Hume testified that he commenced employment with the University as Manager of Commercial Services on 24 July 2000, at which time Ms Heikkinen was on parental leave, which was due to expire on 30 April 2001. He had no handover from Mr Divine.
82 In March 2001, Mr Hume telephoned Ms Heikkinen to arrange a meeting to discuss her intentions at the end of her leave. Soon after, a meeting took place between Ms Heikkinen, Mr Hume and Mr Schmidt. As he was a new
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- manager, he ensured that a human resources representative was present at each meeting. Mr Hume described all of his interactions with Ms Heikkinen as very friendly and amicable, which was why they were not documented. They were both new parents, which they talked about together.
83 At the meeting, Ms Heikkinen advised Mr Hume and Mr Schmidt that she wanted to work part-time, either two or three days a week. Mr Hume testified that Ms Heikkinen stated that the student village manager position that she had previously occupied was not a role that could be undertaken on a part-time basis. She told Mr Hume that she was not able to make the level of commitment required for the role of student village manager. Mr Hume therefore did not pursue this with her.
84 If Ms Heikkinen had wanted to return to her substantive position part-time, Mr Hume says he would have taken steps to assess whether that was possible, based on the operational requirements of the University.
85 During the March meeting, Mr Hume and Mr Schmidt asked Ms Heikkinen what sort of work she liked and what she would like to do. She said she was interested in administrative work, preferably in housing or something similar. Mr Hume agreed to investigate whether there were any part-time HEW5 positions available. Mr Hume gave evidence that Ms Heikkinen appeared happy with these arrangements. Mr Hume then proceeded to monitor vacancies on Ms Heikkinen's behalf over the next six months. He requested that all human resource managers across the University look for part-time HEW5 positions to accommodate Ms Heikkinen.
86 Mr Hume testified that he attended three meetings with Ms Heikkinen. He had no recollection of the date of the second meeting but thought that he would have attended one close to the time when the first leave without pay form was completed, in May. His evidence of relevant dates was very vague but he testified that as he was a new manager, he had a clear recollection of the substance of each meeting. Ms Heikkinen's return from parental leave was one of his first acts as manager so he remembered it clearly. In between meetings, Mr Hume also spoke to Ms Heikkinen on the telephone.
87 On 2 August 2001, a part-time HEW5 position was identified in the University's Chancellery Division which suited Ms Heikkinen's requirements to work two or three days per week. Mr Hume told Ms Heikkinen about this
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- vacancy but she declined to apply for this position as she was not interested in Chancellery.
88 Mr Hume arranged another meeting in late August with Ms Heikkinen and with Mr Dunstan, who had replaced Mr Schmidt. At this meeting, Mr Hume told Ms Heikkinen that no other part-time HEW5 positions had become vacant. Ms Heikkinen told Mr Hume that she would extend her leave without pay while the University continued to monitor part-time HEW5 positions.
89 Mr Hume denied that he coerced Ms Heikkinen into signing leave without pay forms for the period 1 May to 31 October 2001. Her parental leave expired on 30 April 2001 and a suitable part-time position of employment had not been identified. If her leave was not extended, then Ms Heikkinen would have either had to return to work or her position would lapse. The University agreed to Ms Heikkinen's request for leave without pay. In the meantime, Mr Hume was aware that Ms Heikkinen had paid employment with another organisation.
90 Mr Hume and Mr Dunstan met with Ms Heikkinen again in October 2001. Ms Heikkinen asked about an available part-time HEW3 position in the Joondalup Student Village. He remembered very clearly Ms Heikkinen's desire for the HEW3 position, because he had not brought it to her attention. In cross-examination, Mr Hume denied that Ms Heikkinen said she would accept the HEW3 position until such time as she could revert to her substantive position.
91 Mr Hume testified that he asked Ms Heikkinen to provide a written expression of interest in the HEW3 position so that she could be considered for the role. Ms Heikkinen emailed her expression of interest to him on 22 October 2001. In this email, she made reference to securing a permanent HEW3 or 4 position. She never indicated to Mr Hume that she wanted this position on a temporary basis.
92 Mr Hume says he informed Ms Heikkinen on at least three occasions that this was a HEW3 ongoing position and that this would now be her substantive position. This was also in the contract she signed. She was very happy with this as she wanted less responsibility at work. Ms Heikkinen emailed Mr Hume on 1 November 2001 to thank him for the appointment to the HEW3 position. When she accepted the new position, Mr Hume asked her to resign from her substantive position of student village manager. A written resignation was not produced during the hearing.
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93 On 22 November 2001, Ms Heikkinen signed an offer of employment with the University which outlined the terms and conditions of the ongoing appointment to the HEW3 position.
94 Mr Hume denied that he forced Ms Heikkinen to accept this position. Until she expressed interest in this position, he and Mr Dunstan had only sought to identify part-time appointments at a HEW5 level. Ms Heikkinen was happy with the HEW3 position as it was exactly what she had asked for. When Mr Hume became aware in 2004 of Ms Heikkinen's complaint, he was amazed and disappointed.
95 We are satisfied that Mr Hume held an honest belief that Ms Heikkinen did not want to return part-time to her substantive position at the conclusion of her leave. There is nothing to indicate that he treated Ms Heikkinen any differently from any other employee in the same circumstances. Mr Hume's evidence is generally consistent with that of Mr Dunstan.
Relevant legal principles - direct discrimination
96 Ms Heikkinen bears the onus of proof and must prove her case on the balance of probabilities: Dowling v Bowie (1952) 86 CLR 136; for an example see Williams and Commissioner of Police [2005] WASAT 349 at [34]. In the absence of direct evidence the complainant may rely on inferences drawn from primary facts: Cocks MacNish v Biundo [2004] WASCA 194 at [37].
97 It is not necessary for Ms Heikkinen to prove that the University or its employees intended to discriminate against her: Ghockson v Commissioner of Police (Unreported; Equal Opportunity Tribunal; No 92798; 29 November 1995); Purvis v State of New South Wales (Department of Education and Training)(2003) 217 CLR 92.
98 It is also not necessary for Ms Heikkinen's family responsibilities to be the sole or even the dominant or substantial ground for the relevant act in order for unlawful discrimination to be proved; it is adequate if her family responsibility is one of the grounds: see s 5 of the Act.
99 However, the act which amounts to the discrimination must be deliberate; that is, advertent and done with the knowledge of the family responsibilities said to be the ground on which the discriminatory act is performed: Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 265 per Samuels JA.
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100 For a finding of unlawful discrimination to be made out it is necessary to establish a causal connection between the grounds of discrimination alleged and the decision or act complained about: Purvis.
101 The Act must be construed as a whole with regard had to its objectives: Purvis.
102 An employer is vicariously liable for the unlawful acts of an employee which are done in connection with the employment of the employee: s 161 of the Act.
103 The expression "less favourably" is to be given its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found proved in the particular case: Ghockson v Commissioner of Police at 78911; Williams and Commissioner of Police at [38].
104 An omission to tell a person something, to that person's detriment, may be less favourable treatment: Cocks MacNish at [42].
105 Implicit in the notion of the words "less favourably" is the necessity to establish a comparator; for the Tribunal to examine two situations or sets of circumstances, the actual and the hypothesised, so that it can determine by a comparison whether the treatment in the former is "less favourable" than in the latter: Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13 at 19 per Mahoney JA.
106 In considering the appropriate comparator, Demar and Commissioner of Police [2006] WASAT 198 at [61] is a useful guide:
"The identification of what is commonly called a "comparator" is an essential element of the statutory formula of direct discrimination. There will not always be an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is necessarily hypothetical: see, for example, Dare v Hurley [2005] FMCA 844; Mooney v Commissioner of Police, New South Wales Police Service (2003) EOC 93-281. It is not necessary that they be in identical circumstances but there must be a sufficient degree of similarity in the circumstances of the complainant and the actual or hypothetical comparator to form the basis of an appropriate comparison."
107 Ultimately, the question as to who is the appropriate comparator will be a matter for the tribunal of fact: Cocks MacNish at [63].
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Issues relating to claim of direct discrimination
1) Did the University treat Ms Heikkinen less favourably than other employees in the same circumstances?
1.1) Who is the appropriate comparator?
1.2) What is the discriminatory conduct of which Ms Heikkinen complains?
2) If the University treated Ms Heikkinen "less favourably" did it do so because of Ms Heikkinen's family responsibilities? That is, was there a causal connection between the University's treatment of Ms Heikkinen and her family responsibilities?
1) Did the University treat Ms Heikkinen less favourably than other employees in the same circumstances?
108 Ms Heikkinen submits that she was in a less favourable position at work than other employees returning from leave because her family responsibilities prevented her from working full-time in her substantive position and thereafter negotiating a part-time arrangement. In addition, the University employed others on part-time arrangements for reasons including family responsibilities. The Joondalup student village manager had a flexible working arrangement due to her family responsibilities.
109 The University submits that this evidence demonstrates the existence of its fair policy of making part-time arrangements available to employees for family or other reasons, where permitted by operational requirements. Ms Heikkinen was not treated less favourably than any other employee seeking to work part-time. In any event, Ms Heikkinen personally chose not to return to her substantive position after her parental leave.
1.1) The comparator
110 Mr Pilgrim, on behalf of Ms Heikkinen, submits that there is no actual comparator. The notional comparator is an employee returning full-time to their substantive position after a period of leave, with an intention of later applying for part-time work, for reasons other than family responsibilities. Ms Heikkinen had family responsibilities, therefore was in a less favourable position than employees who could initially return to work full-time.
111 Ms Cash, on behalf of the University, submits that the appropriate notional comparator is a person who has taken extended leave and requests that they be allowed to return to their substantive position on a part-time basis
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- working two or three days a week, for reasons other than family responsibilities.
1.2) What is the discriminatory conduct of which Ms Heikkinen complains?
a) repeatedly refusing to agree to her requests to return to her substantive position on a part-time basis at the conclusion of her parental leave;
b) breaching cl 45 of the Agreement by failing to provide her with an opportunity to revert to her former position after a period of part-time work;
c) failing to offer to reinstate her full-time as Student Village manager HEW5 or to make that position available to her on a part-time basis;
d) coercing her to sign leave without pay forms from 1 May to 30 October 2001;
e) issuing an ultimatum in October 2001 that she must apply for a part-time HEW3 position or resign; and
f) omitting to tell Ms Heikkinen of her rights under the Agreement, and in particular the effect on her rights if she accepted a permanent HEW3 position.
113 The University denies that any discriminatory acts occurred. In addition, it says there is no evidence that the comparator would be treated any differently by the University.
2) If the University treated Ms Heikkinen "less favourably" than the comparator, did it do so because of Ms Heikkinen's family responsibilities?
114 The University submits that there is no evidence of any causative link between the University's actions and Ms Heikkinen's family responsibilities.
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Findings in relation to claim of direct discrimination
115 Ms Heikkinen was not an entirely credible witness. Her evidence was sometimes inconsistent and self-serving. Much of her evidence was directly contradicted by other witnesses. The available documents generally do not provide support for her application or corroborate her evidence.
116 Ms Tammen's evidence was limited to an overheard conversation with Mr Divine, who did not testify. Even if we accept that Ms Tammen correctly heard the conversation and correctly recalled it, some years later, that in itself is not determinative of any of the relevant issues. Mr Divine had left that role at the University by the time Ms Heikkinen's parental leave came to an end and Mr Hume stated that there was no handover provided to him when he started in that role. We accept the evidence of Mr Hume that he consulted with Ms Heikkinen on a number of occasions to assist her to return to work in a position that satisfied her requirements. He would have given any request by Ms Heikkinen for part-time work in her substantive position full consideration, based on the operational requirements of the University.
117 Mr Dunstan was a particularly impressive witness with no current connection with the University. He gave very cogent evidence of the meetings with Ms Heikkinen which was consistent with that of Mr Hume. Mr Dunstan recalled that Ms Heikkinen specifically stated that she did not want to work part-time in her substantive position. Where Ms Heikkinen's evidence is in conflict, we prefer the evidence of Mr Hume and Mr Dunstan.
118 Ms Heikkinen claimed that she told the University that she wanted to return to her substantive position on a part-time basis on several separate occasions. None of the emails or other documents of the relevant period support this assertion by Ms Heikkinen. Mr Hume and Mr Dunstan have a clear recollection to the contrary. We find that Ms Heikkinen did not make any request to return to her HEW5 position on either a part-time or full-time basis, at any time during, or at the conclusion of, her parental leave.
119 The University demonstrated to our satisfaction that it genuinely attempted to accommodate Ms Heikkinen's return to work. We find that the University did not force Ms Heikkinen to take leave without pay, but that she applied for it herself. It was essentially an administrative necessity.
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120 We find that Ms Heikkinen communicated to the University that she was interested in a part-time HEW3 position and at no time was she forced to apply for such a position. The HEW3 contract and Ms Heikkinen's emails during this period satisfy us that she was willing to be appointed to the part-time HEW3 position on a permanent basis.
121 We find that Ms Heikkinen did not wish to return to her substantive position after her parental leave and that she specifically requested a part-time position with fewer responsibilities. Mr Hume's and Mr Dunstan's evidence give an accurate representation of the relevant facts.
122 We find that the University sought to accommodate Ms Heikkinen's request for part-time work in a position other than her substantive position and that there is no evidence of any less favourable treatment.
123 Ms Roza demonstrated to our satisfaction that the University assesses all applications for part-time positions on their merits and on the same basis.
124 Much was made by Mr Pilgrim throughout the hearing of the terms of the Agreement. We do not have jurisdiction to determine whether or not the University breached cl 45. Such a submission is only relevant to this application if offered as evidence that Ms Heikkinen was treated less favourably than the notional comparator, and that this less favourable treatment was the result of her family responsibility.
125 We find no evidence to support such an argument. We were not pointed to any evidence which could demonstrate that the University's conduct under the Agreement in regards to Ms Heikkinen was different from its conduct towards any other employee, or that Ms Heikkinen's family responsibilities were causative of any such less favourable treatment. The submissions on the terms of the Agreement are irrelevant to this claim in this jurisdiction and we therefore do not address them in detail.
126 The Tribunal finds that the appropriate comparator is a person without Ms Heikkinen's family responsibilities who has taken extended leave and seeks to return to their substantive position on a part-time basis, working two or three days a week.
127 Ms Heikkinen offers no evidence to support any assertion that she was treated less favourably by the University than this notional comparator. Furthermore, there is no evidence upon which to draw any inference that an act of
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- discrimination on the grounds of family responsibility has occurred.
128 Ms Heikkinen's own evidence provides positive examples of the University's equal treatment of employees seeking part-time work arrangements due to family responsibilities after parental leave.
129 It is not sufficient for Ms Heikkinen to assert that she wanted part-time work in her substantive position and that this did not happen. There is no absolute duty on an employer, either under the Agreement or the Act, to provide an employee with family responsibilities whatever flexible arrangement they request in the workplace. The Act simply requires that employees with family responsibilities are not treated worse than other employees without family responsibilities who are otherwise in the same or similar circumstances. We find that the University treated Ms Heikkinen's application for part-time work in accordance with its standard processes.
130 We find that Ms Heikkinen was not treated less favourably by the University than any other employee in similar circumstances without Ms Heikkinen's family responsibilities, and specifically, she was not treated less favourably than the notional comparator.
131 There being no less favourable treatment, it is unnecessary to consider the second limb of direct discrimination concerning a causal connection between the University's treatment of Ms Heikkinen and her family responsibilities. We therefore also do not need to consider the specific allegations of unlawful discrimination made under s 35B of the Act.
132 We dismiss the claim of direct discrimination.
Relevant legal principles - indirect discrimination
133 To establish a claim of indirect discrimination, Ms Heikkinen must show that a requirement or condition has been imposed with which she does not or is not able to comply.
134 The inability to comply must be either because of a physical inability to comply or because of someattribute or imperative related to the relevant ground. In this case the inability to comply would need to be related to Ms Heikkinen's family responsibility. It is not sufficient if she simply chooses not to comply, as a matter of personal choice or for some other reason: White J in State Housing Commission v Martin
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- (Unreported; Supreme Court of Western Australia; Lib No 90699; 15 October 1998). In Lennon and State Housing Commission [2006] WASAT 344 at [86], Barker J considered indirect discrimination in the context of a racial discrimination claim:
"This particular phrase [requirement or condition] is given a broad, rather than technical meaning: see State of New South Wales v Amery [2006] HCA 14 per Gummow, Hayne, and Crennan JJ at [63], by reference to the Anti-Discrimination Act 1977 (NSW), which is similar in relevant respects to the EO Act and Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 407 per McHugh J.
However, for something to be a requirement or condition in relation to a matter it must be separate from that matter: Waters & Ors v Public Transport Corporation at 361 per Mason CJ and Gaudron J (Deane J agreeing), 394 per Dawson and Toohey JJ.
A person imposes a requirement or condition in providing goods or services when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed: Waters & Ors v Public Transport Corporation, per McHugh J at 407.
Whether a requirement or condition is reasonable is a question of fact to be determined by weighing all the relevant factors, which will differ from one case to the next, in which all the circumstances are to be taken into account: Waters & Ors v Public Transport Corporation per Dawson and Toohey JJ at 395; State Housing Commission v Martin (Unreported, Full Court Supreme Court of Western Australia, 19 October 1998, Lib 980699 per White J at page 19).
The reasonableness of a requirement or condition is an essential element in proving unlawful discrimination, and the onus of proving this element lies with the aggrieved person: Waters v Public Transport Corporation per McHugh J at 411."
1) Did the University impose a requirement or condition on Ms Heikkinen?
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- 2) Was Ms Heikkinen unable to comply with such a requirement or condition because of her family responsibilities?
3) Was such a requirement or condition unreasonable?
1) Was a requirement or condition imposed on Ms Heikkinen by the University?
135 Mr Pilgrim submits that the University generally imposed the requirement or condition that after taking a period of leave, employees seeking to return to their substantive positions must work full-time. Ms Heikkinen was unable to comply with this requirement or condition because of her family responsibilities. She was a sole parent caring for a baby and was unable to work full-time while the child was so young.
136 As a result of the University requirement, Ms Heikkinen asserts that she was unable to return to her substantive position and therefore suffered financial loss.
137 The University submits that there is no evidence at all that the University imposed such a requirement or condition. Ms Heikkinen did not want to return to her substantive position after her return from parental leave. The University referred to Ms Heikkinen's own evidence that the Joondalup Student Village manager was employed by the University on a part-time arrangement in her substantive position at the conclusion of her parental leave. University employment policies and the Agreement both gave support to the University's submission that it was open to part-time work arrangements. Ms Roza gave evidence, including case studies, of the University's procedure for considering applications by employees for part-time work, whether for family reasons or for a variety of other reasons.
138 The parties did not specifically address the Tribunal on (2) and (3) above.
Findings relating to indirect discrimination claim
139 We find no direct evidence that the University imposed a condition or requirement that Ms Heikkinen or any other person must work full-time in order to return to their substantive position after a period of leave. Furthermore, there is no evidence upon which such an inference could be drawn. We are satisfied that there was no such requirement or condition. The University provides a variety of part-time arrangements for employees returning from leave where permitted by the operational requirements of the position.
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140 As set out above, we are satisfied that Ms Heikkinen communicated to her manager and the human resources manager her desire not to return to her substantive position, either full-time or part-time, on her return from parental leave. As a result, the University did not conduct its standard assessment of the suitability of the position for a part-time arrangement for Ms Heikkinen. Instead, it actively searched for suitable alternative part-time positions for Ms Heikkinen. We find that Ms Heikkinen was satisfied with this approach at the time.
141 Having found that there is no relevant requirement or condition, we do not need to consider the remaining issues of whether Ms Heikkinen was unable to comply by reason of her family responsibilities or the question of reasonableness.
142 We dismiss the complaint of indirect discrimination.
Costs application
143 The University applies for an order for costs relating to witness expenses of $1939.96.
144 Section 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides:
"Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal."
145 The relevant enabling Act is the Equal Opportunity Act 1984 which contains no provision as to costs.
146 Section 87(2) of the SAT Act allows for the Tribunal to exercise its discretion to award costs:
"Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35."
147 Section 87(5) of the SAT Act provides:
"The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party."
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148 The University seeks an order for costs pursuant to s 87(2) of the SAT Act and asks the Tribunal to exercise its discretion in its favour, taking into account that it made an offer to Ms Heikkinen, specifically in accordance with r 40 and r 41 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) and that offer was rejected.
149 Ms Heikkinen argues that the Tribunal should not award costs because the making and rejecting of an offer under the SAT Rules is not determinative of the issue and in any event the offer made by the University was "minimal".
150 Rule 42 of the SAT Rules applies if an offer of settlement is made to a party, that offer complies with r 40 and r 41 of the SAT Rules and it is rejected. The University made an offer of settlement to Ms Heikkinen on 28 February 2007. This offer complied with r 40 and r 41 in that:
1) the proceeding before the Tribunal were not proceedings in the Tribunal's review jurisdiction;
2) the offer of settlement was in writing (r 41(1));
3) the offer specified that it was made "with prejudice" (r 40(1)(a));
4) the offer was open for acceptance for a period of more than 14 days (r 41(2)); and
5) the offer was not withdrawn while it was open for acceptance (r 41(3)).
151 The deficiencies in Ms Heikkinen's application were drawn to her attention by the Tribunal prior to the hearing and she was advised of what evidence she would need to put before the Tribunal to substantiate her claim of unlawful discrimination under the Act. Ms Heikkinen did not address these deficiencies, nor bring the necessary evidence before the Tribunal, and her claim was ultimately unsuccessful. The University was put to the expense of bringing a witness from interstate to testify during the hearing, which took place over three days. Other witness expenses were reasonably incurred by the University during the hearing.
152 Although the Tribunal does not generally make awards for costs, we consider in this case there are strong grounds to support the application. We are satisfied that the University's application is reasonable in all of the circumstances and we allow costs for witness disbursements, as claimed.
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Orders
153 We make the following orders:
1. The proceedings against the respondent are dismissed.
2. Costs of $1939.96 are awarded to the respondent payable by the applicant to the respondent by 15 February 2008.
I certify that this and the preceding [153] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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