Ilian v ABC
[2006] FMCA 1500
•17 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ILIAN v ABC | [2006] FMCA 1500 |
| HUMAN RIGHTS – Discrimination – sex and pregnancy. PRACTICE AND PROCEDURE – Standard of proof – whether ‘Briginshaw test’ applies – serious allegation of ‘unlawful discrimination’ – normal standard of proof applies. |
| Sex Discrimination Act 1984, ss.3, 5, 7, 14(2) Human Rights and Equal Opportunity Commission Act 1986, ss.46PH(1)(i), 46PO Maternity Leave (Commonwealth Employees) Act 1973 Workplace Relations Act 1996 |
| TNT Management Pty Ltd v Brooks (1979) 21 ALR 345 Briginshaw v Briginshaw (1938) 60 CLR 336 Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 93 FCR 34 Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 Du Bois-Hammond v Raging Thunder Pty Ltd (2004) EOC 93-341 Bear v Norwood Private Nursing Home (1984) EOC 92-019 Frost v WA Police Service [2005] WASAT 150 Cocks Macnish & Anor v Biundo [2004] WASCA 194 |
| Applicant: | TITA ILIAN |
| Respondent: | AUSTRALIAN BROADCASTING CORPORATION |
| File Number: | PEG 198 of 2004 |
| Judgment of: | McInnis FM |
| Hearing dates: | 12, 13, 14 December 2005 and 9 February 2006 |
| Delivered at: | Melbourne (by video link to Perth) |
| Delivered on: | 17 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Cosentino |
| Solicitors for the Applicant: | Gibson & Gibson |
| Counsel for the Respondent: | Mr T.H.F. Caspersz |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
It be determined that the Respondent be liable to the Applicant in accordance with the judgment of the Court in this matter issued on
17 October 2006 (the Determination of Liability) in respect of the Applicant’s claim of unlawful discrimination under s.7(1)(b) of the Sex Discrimination Act 1984 (Cth) arising out of the Respondent’s failure to return the Applicant to her position upon her return to work following maternity leave.
Costs be reserved.
The Applicant file and serve on the Respondent particulars of any relief claimed in accordance with the Determination of Liability (the Applicant’s claim for relief) by no later than 21 November 2006.
The Respondent file and serve its answer to such particulars by no later than 14 December 2006.
The proceedings be the subject of mediation conducted by Registrar Eaton. By no later than 14 December 2006, each party shall supply the Court registry with the party’s unavailable dates for attending mediation.
The matter be set down for hearing of the Applicant’s claim for relief for 2 days on 12 April 2007.
Evidence in chief at the hearing to be by affidavit.
The parties give each other notice no later than 14 days prior to the commencement of the proceedings as to who they may require for cross examination on affidavits sworn by each of the parties’ witnesses.
The Applicant file and serve any affidavit evidence upon which she intends to rely at the hearing no later than 9 weeks prior to the hearing.
The Respondent file and serve any affidavits on which it intends to rely at the hearing of the matter no later than 6 weeks prior to the hearing.
The Applicant file and serve any affidavits in reply no later than
3 weeks prior to the hearing.
The Applicant file and serve an outline of written submissions no later than 3 weeks prior to the hearing.
The Respondent file and serve an outline of its written submissions no later than 1 week prior to the hearing.
There be liberty to apply.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 198 of 2004
| TITA ILIAN |
Applicant
And
| AUSTRALIAN BROADCASTING CORPORATION |
Respondent
REASONS FOR JUDGMENT
In this application Tita Ilian (the Applicant) claims that her employer the Australia Broadcasting Corporation (the Respondent) has breached ss.5, 7 and 14(2) of the Sex Discrimination Act 1984 (the SDA).
The alleged discrimination in employment is based upon the grounds of the Applicant's sex and pregnancy. It is common ground, however, that in the event that the Applicant is able to establish the claim relying upon s.7 of the SDA then it would not be necessary to then pursue any claim under s.5 of the SDA. In the event that the Applicant fails to establish her claim under s.7 of the SDA then it would follow that the claim pursuant to s.5 of the SDA would fail.
The application in this court is brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act). The Applicant had made a complaint of unlawful discrimination to the Human Rights and Equal Opportunity Commission (the Commission) which was investigated, conciliated and ultimately a Notice of Termination was issued pursuant to s.46PH(1)(i) of the HREOC Act dated 7 December 2004.
The Applicant is a long-standing employee of the Respondent and as at September 2001 held a position referred to as "Production Resources Coordinator". It is sufficient for introductory purposes to refer to the duties of that position as varied administrative duties. It is common ground that at least until May 2001 the Applicant was required to report directly to the head of the Production Resources Department of the Respondent.
There is no dispute that the Applicant was absent from the workplace from 10 September 2001 to 21 January 2004, that is, a period of approximately two years and four months, following the births of her daughter and son. The Applicant claims that this absence consisted of two periods of maternity leave with four months sick leave between the maternity leave.
It is claimed by the Applicant that although she applied for and was paid entitlements for long service leave and recreation leave in the period following the birth of her first child, the reason for her absence was the birth, and it was submitted that that leave should therefore be characterised as "maternity leave" for the purposes of the SDA and the Maternity Leave (Commonwealth Employees) Act 1973 (the MLA). It is further claimed that leave following the birth of the Applicant's second child was "maternity leave", the latter part of which was maternity leave without pay.
In brief terms, the Applicant's claim arises from the alleged conduct of the performance management process prior to her commencement of the first period of maternity leave and events which occurred upon her return to work following the second period of maternity leave.
The Applicant claims that the circumstances amount to discrimination in the terms and conditions of employment afforded to the Applicant in her employment, including denial of access to benefits associated with employment and detriment, as the Respondent had treated the Applicant less favourably than in circumstances that are the same or not materially different the Respondent treated or would have treated a person who had not taken maternity leave.
It should be noted that there is no issue in relation to vicarious liability in this application.
The Applicant relied upon Points of Claim filed 31 August 2005 and in particular asserted that the facts which amount to discrimination are set out appropriately in paragraphs 16 and 23 of that document which provide:-
“16 On 21 January 2004 the Applicant returned to her employment with the Respondent but to different duties and responsibilities to those performed prior to her maternity leave.
Particulars
16.1 Upon her return to work, the Respondent had no role or duties for the Applicant to perform.
16.2 On 21 January 2004 John O’Brien told the Applicant that her job was gone and that Janet Preston was ongoing in her title and position.
16.3 The Applicant was not allocated any job title, workstation or job description.
16.4 Janet Preston had been appointed temporarily to the Applicant’s position of Production Resources Coordinator.
16.5 The Applicant’s office remained occupied by Janet Preston.
16.6 The Respondent allocated ad hoc duties for the Applicant to perform including duties assisting the Production Resources Co-ordinator, assisting Technical Services, training and ad hoc administrative duties.
16.7 The Applicant was given no clear reporting lines and was reporting to all of Janet Preston, Pamela Oliver and Kate Elder and not to John O’Brien.
16.8 Despite the Applicant’s request, the Respondent refused to return the Applicant to the position of Production Resources Co-ordinator.
16.9 The Applicant was not permitted to return to or perform her former duties.
16.10 Janet Preston remained in the position of Production Resources Coordinator.
16.11 The Respondent proposed to perform a performance appraisal the Band 4 job plan given in September 2001 for the period to 26 March 2004 although the Applicant had not performed that job plan.
16.12 Pamela Oliver and Janet Preston intrusively supervised the Applicant in the performance of her duties.
16.13 The Respondent failed to provide clarification or explanations to the Applicant regarding her role.
23. The facts set out in paragraphs 10 to 16 above amount to direct discrimination in contravention of sections 5, 7 and 14(2) of the Sex Discrimination Act 1984 being discrimination in employment on the grounds of the Applicant’s pregnancy and sex.
Particulars
The Applicant repeats the allegations in paragraphs 10 to 16 and claims that the Respondent unlawfully discriminated against her by:
23.1 Denying the Applicant the opportunity afforded by and benefit of the job plan process being conducted in accordance with clause 18 of the ABC Employment Agreement 2000 – 2002 and the ABC Staff Performance Management Guidelines.
23.2 Denying the Applicant the benefit of a return to her substantive position of Production Resources Coordinator upon her return from maternity leave in accordance with clause 44 of the ABC Employment Agreement 2003 – 2006 and the Maternity Leave (Commonwealth Employees) Act 1973.
23.3 Denying the Applicant the benefits of a job title, job description and workstation.
23.4 Imposing terms and conditions of employment that involved intrusive supervision, lack of communication and consultation, and ad hoc duties to perform.
23.5 Denying the Applicant the opportunity to perform to her job plan so that her performance could be fairly assessed.”
The issues identified by the Applicant in support of her claim are:-
(a)Whether there has been a detriment or denial of access to benefit in employment.
(b)Whether that treatment was "less favourable" treatment.
(c)Whether the reason for the less favourable treatment was the Applicant's pregnancy.
Background Facts
Unless otherwise stated I find the following facts most of which I note appear to be agreed between the parties:
·The Applicant was employed by the Respondent from 22 September 1980 and continues to be an employee of the Respondent.
·The Applicant's title and position as at September 2001 was "Production Resources Coordinator".
·In August 2001 the Respondent introduced new rostering software known as "SAP HR" or "SAP rostering" and staff training in that software was conducted through August and September 2001.
·The Applicant was given a job plan set at band 4 level prior to 10 September 2004.
·As at 10 September 2001 the Applicant had not been assessed against her job plan for the performance management cycle to March 2002.
·The Applicant commenced leave on 10 September 2001 for the period until 8 September 2002. This period is referred to as maternity leave by the Applicant and otherwise described as "the first period of leave". Whether it was maternity leave for the entire period is a matter in dispute.
·The Applicant was absent from work on sick leave from 9 September 2002 until 28 January 2003.
·The Applicant commenced a second period of leave from 29 January 2003 to 20 January 2004. Although the period of leave is not disputed, the description of that leave as "maternity leave" is in dispute.
·During the Applicant's absence from work the position of Production Resources Coordinator was filled by Lorraine Sanders and then Janet Preston. The Respondent asserts that the position was filled "temporarily". That description is in issue between the parties.
·Both Lorraine Sanders and Janet Preston were appointed from outside the Respondent's organisation.
·On 13 January 2004 Janet Preston's contract was renewed for a period of five months commencing 21 January 2004 and ceasing on 27 June 2004.
·The Applicant returned to work on 21 January 2004. It is in dispute as to whether or not she returned to work "from maternity leave".
·Upon the Applicant’s return to work, Janet Preston was located at the workstation previously occupied by the Applicant prior to 10 September 2001 and the Applicant was allocated a different workstation.
·On the day of her return to work the Applicant met with John O'Brien of the Respondent.
·The Applicant was directed to train in the SAP program under the instruction of Janet Preston and was directed to familiarise or train to take up the duties of Technical Services, Administrative Support for the Technical Services Department.
·The Applicant met with Pamela Oliver on 21 April 2004.
·The Applicant has not returned to work since 21 April 2004.
There are a number of other allegations of fact of the Applicant which are either not admitted or disputed by the Respondent. Those allegations, in summary form, provide an overview of the Applicant's claim and may briefly be described as follows:
·The responsibilities, functions and duties of the Applicant's position as Production Resources Coordinator as at September 2001 were set out in a job plan as ‘to co-ordinate roster and administer on a daily basis the supply of labour and facilities for WA Production Resources (Exhibit A4).
·The job plan set at band 4 level prior to 10 September 2001 arose from a designation made by John O'Brien, although at the time the Applicant's "manager" for the purpose of the job plan was Fiona Holden (nee Herbert).
·Both the first and second periods of leave should properly be regarded as maternity leave.
·During the course of her employment with the Respondent, Janet Preston was engaged as "Production Resources Coordinator".
·As at 29 March 2004 the performance management process in respect to the Applicant's job plan of September 2001 had not been completed. The Applicant had not been assessed against the 2001 job plan and continued to be paid at band 3 level.
·A reason for the delay in finalising the Applicant's job plan for the 2001 cycle and the non-completion of the performance management process for the 2001 cycle was the Applicant's pregnancy or taking of maternity leave.
·The Applicant did not resume the role of Production Resources Coordinator upon her return from maternity leave or at any time prior to 21 April 2004.
·That the Applicant was told by John O'Brien on 21 January 2004 that her job was ‘gone’, her title was ‘gone’, that Janet Preston was ongoing in her position and that other duties would have to be found for the Applicant.
·That the Applicant was allocated ‘ad hoc’ tasks rather than given responsibility for particular duties on an ongoing basis.
·That Janet Preston limited the Applicant's SAP training and resisted handing over tasks to the Applicant.
·That the Applicant was intrusively supervised upon her return to work.
·That the Applicant was treated less favourably than other employees in similar circumstances.
·That the reason for the treatment was the Applicant's pregnancy or maternity leave.
It should be noted that a further issue in dispute is an allegation raised during the course of evidence by the Respondent that the Applicant made errors in SAP data entry so as to establish that she was not competent in its use.
Standard of Proof
It was submitted on behalf of the Respondent that the matters in issue in this application fundamentally raise questions of fact to be resolved on the evidence. It was submitted the Respondent bears no reverse onus of proof. Further, it was submitted the Applicant must prove all elements of her claim. Those submissions are not particularly contentious and the court has no hesitation accepting them.
In relation to the drawing of inferences, reliance was placed upon the dicta of the High Court in Bradshaw v McEwans Pty Ltd (1951) (Unreported) applied in TNT Management Pty Ltd v Brooks (1979) 21 ALR 345 where the court states:
“Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting evidence of equal degrees of probability so that the choice between them is a mere matter of conjecture ... but if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought, then though the conclusion may fall short of certainly, it is not to be regarded as a mere conjecture or surmise ... “
The preliminary issue concerning the standard of proof arose from the Respondent's submission that in this instance the Applicant's claims of unlawful discrimination may be regarded as serious and connote grave moral delinquency on the Respondent's part, constituting a breach of human rights. It was argued that accordingly, although the standard of proof is upon the balance of probabilities, the Applicant's claim requires resolution by careful examination of testimony, close examination of the facts proved as a basis for inference and a comfortable satisfaction that the tribunal has reached a correct and just conclusion. It was argued that in this instance the court should apply the test from Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw).
Reference was made to the decision of Nicholson J in Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 93 FCR 34 where at page 65 His Honour states:
“206 In my opinion the allegations against the respondents are serious in character. This derives from the fact that the claim of conspiracy is made on the basis that in executing their public duties the respondents, without realising it, unlawfully harmed the applicants. Leaving aside the issue whether an intention to harm is a necessary element of the tort of unlawful conspiracy, the allegation is serious. It also has about it an inherent unlikelihood of occurrence in the absence of an intention to harm. Adverse findings against the respondents would raise an event of "grave moral delinquency": cf Briginshaw at 363.
207 However, there are other factors which I consider more significant. The applicants spent approximately twenty days cross-examining the witnesses of the respondents. The character of the cross-examination was directed to the meaning of and state of mind behind the documents. Questions were phrased with great attention to exactitude. Submissions concerning credibility of a number of the respondent's witnesses were based on a lengthy and detailed analysis of questions and responses. The whole trial was conducted by all parties with great attention to exactitude.
208 In all those circumstances I consider the claims of the applicants require resolution by a "careful weighing of testimony, close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion": Briginshaw at 354 per Rich J. This, however, is still an application of the civil standard of proof on the balance of probabilities.”
Reliance was placed upon the High Court decision in Briginshaw and it is useful to set out the well-known passage from that decision where Dixon J states at pp.361-362:
“ … when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. …”
Counsel for the Applicant submitted that in this instance the claim of unlawful discrimination is not of such significance as to require the application of the Briginshaw test but rather the application should be determined on the balance of probabilities.
In my view each case needs to be determined on its own facts. Clearly there are some allegations which may arise under the SDA which by their very nature involve serious allegations which in another context may amount to criminal or quasi-criminal behaviour. In those circumstances it may well be appropriate to apply and adopt the Briginshaw test.
In the present case, however, it is evident from the overview of the facts, and indeed the summary of the facts alleged by the Applicant which are in dispute, that there is clearly a claim of unlawful discrimination, but it is not in my view a claim which could properly be characterised as one which ought to attract the Briginshaw test. Whilst the unlawful discrimination is undoubtedly serious, I do not accept, as submitted for and on behalf of the Respondent, that in this instance grave consequences would flow to the Respondent and/or the Respondent's witnesses if a finding of unlawful discrimination was made against the Respondent.
In this instance the claim arises out of the employment by the Respondent of the Applicant. The claim does not of itself provide any basis upon which it could be suggested that those acting for and on behalf of the Respondent are guilty of some moral turpitude or that any finding by this court would lead to a conclusion that the Respondent's management have engaged in activity which could be described as constituting moral delinquency.
Hence in my view, on a proper assessment of the nature and extent of the allegations made of unlawful discrimination in the context of the present application, it is not appropriate to apply the Briginshaw test. The claim should be determined on the balance of probabilities.
A Threshold Issue
At the outset a threshold issue was raised by the Respondent which should be determined by the court before considering the claim in further detail.
The Respondent submitted that for the application to succeed, the court must be satisfied that the taking of maternity leave is first a distinguishing feature or quality of pregnant women (or potentially pregnant women). Secondly, it was argued the court must be satisfied that the taking of maternity leave belongs as an attribute generally to pregnant women (or potentially pregnant women). There is no evidence, it was submitted, in respect of these two elements.
In considering the threshold issue it is useful to set out the relevant provisions of the SDA.
Section 7 of the SDA, which operates exclusively of s.5, provides as follows:
“7 Discrimination on the ground of pregnancy or potential pregnancy
(1) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if, because of:
(a) the aggrieved woman’s pregnancy or potential pregnancy; or
(b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or
(c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant;
the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.
(2) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are also pregnant or potentially pregnant.
(3) This section has effect subject to sections 7B and 7D.”
Specific reference was made to s.7(1)(b) which defines one aspect of what constitutes discrimination on the ground of pregnancy; namely, less favourable treatment of a pregnant woman because of a characteristic that appertains generally to women who are pregnant or who are potentially pregnant. It was argued that it is essential to attend to the words of the statute. Reference was made to Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 (Thomson) at [157] and [165] where the court states the following:
“157 I was taken to decisions of the highest authority in Australia and the United Kingdom about the words ‘on the ground of’, ‘by reason of’ and cognate expressions. I do not think it necessary to deal with all of these cases. It is essential to attend to the words of the statute. If (as I have found she was) Ms Thomson has been treated less favourably than a person who took one year’s leave with a right to return ( s 7) or a man who took one year’s leave with a right to return (s 5), then, for that to be unlawful, it must be found that it occurred because of, or by reason of, one or more of the factors relied upon in ss.5(1) and 7(1).
165. In this, the taking of maternity leave, a characteristic that appertains generally to women who are pregnant? I am prepared to work on the basis that taking maternity leave is a characteristic that appertains generally to women who are pregnant. As I have said, no argument to the contrary was put. A physical characteristic that appertains generally to women who are pregnant is that the birth of the child necessitates some confinement and so some inability to work or undertake duties whether in paid employment or otherwise. In some cases the relevant period of time may be short. However, generally, there will be some inability to attend to a usual occupation and so some requirement for leave from that occupation. To that extent, that is absence from a woman’s usual occupation, generally occurs and so can be said to be a characteristic that appertains generally to pregnant women. It is thus able to be said that the need to take, and the taking of, some ‘maternity leave’ is a characteristic of pregnancy. How long that leave might be and its terms are not matters which affect this condition. Thus the Applicant has demonstrated unlawful discrimination for the purposes of pars 7(1)(b) and 14(2)(a), (b), (c) and (d).”
The Respondent submitted that when read with s.14, the elements of s.7(1)(b) of the SDA require satisfaction that the employer did one of the things described in s.14(2)(a) - (d) to a pregnant employee because of:
·A "characteristic" that
·appertains generally to women who are pregnant or who are potentially pregnant (emphasis added).
It was submitted that a "characteristic" is a distinguishing feature or quality. "Appertain" means to belong as an attribute. It was submitted that an "attribute" is a quality or character.
The Respondent submitted that apart from there being no evidence in respect of the two elements that the taking of maternity leave is a distinguishing feature or quality of pregnant women or potentially pregnant women or that the taking of maternity leave belongs as an attribute generally to pregnant women. The Applicant had not cited any binding authority in relation to the issue. Reference was made to distinctions made in Queensland anti-discrimination law between paid and unpaid maternity leave. Further reference was made to a similarity between unpaid maternity leave and "parental leave".
It was argued that the SDA protects a general human right to non‑discrimination in particular areas such as employment but does not confer a right to take maternity leave which arises from other workplace relations and maternity leave laws or by contractual agreement. It was argued that if breached, those laws or the contract are the basis for the enforcement of that right, not the SDA. It was submitted that:
“Common experience suggests that some pregnant employees choose to resign their employment instead of taking maternity leave (paid or unpaid).”
It was submitted on behalf of the Respondent that a right to take maternity leave and the exercise of a choice to do so or not flows from the status of being an employee. It was simply a benefit that is available by choice to a pregnant (or potentially pregnant) woman pursuant to a legal contractual right, and it is available to her qua employee. As such, it was argued, regardless of whether it is an attribute of pregnancy, it is not a characteristic as described by s.7(1)(b) of the SDA in that it is not a distinguishing feature or quality of a pregnant (or potentially pregnant) woman qua pregnant (or potentially pregnant) woman.
It was argued that s.7(1)(b) of the SDA requires more than that the maternity leave be a characteristic of women who are pregnant. It requires the taking of maternity leave to be a characteristic that appertains generally to women who are pregnant or potentially pregnant.
In dealing with the construction of the word "generally", it was argued it should be given its ordinary meaning of "usually, commonly or ordinarily" (see Macquarie Dictionary). It was argued that in a similar vein to the observations made by the Anti-Discrimination Tribunal, Queensland, in Du Bois-Hammond v Raging Thunder Pty Ltd (2004) EOC 93-341 (Dubois-Hammond), it may be going too far to say that a parent generally has a characteristic of parental leave. It cannot be said that the taking of maternity leave is a characteristic generally of pregnant (or potentially pregnant) women.
It was argued that not all pregnant women may choose to avail themselves of maternity leave but rather may resign instead. Also it was argued that many pregnant (or potentially pregnant) women are not employees. The obvious point was made during the course of submissions that an unemployed person has not a job from which to take maternity leave.
During the course of submissions it was conceded that there was no known case where evidence was adduced to establish that the taking of maternity leave is a distinguishing feature or quality of pregnant women or an attribute generally to pregnant women (or potentially pregnant women).
The Applicant submitted that there is authority which establishes that the taking of maternity leave is a characteristic which appertains generally to persons who are pregnant. Reference was made to paragraph 165 of Thomson set out above.
Reference was also made to the decision of the Sex Discrimination Board, South Australia, in Bear v Norwood Private Nursing Home (1984) EOC 92-019 (Bear) where in that case the Board states the following:
“In the Board’s view , in the context in which it appears, the word ‘generally’ means with respect to all or nearly all, as a general rule or commonly. However, the Board is of the view that the word ‘generally’ can be interpreted in two ways in the context in which it is used and that one interpretation may be more preferably than another depending on the circumstances. The first sense in which the word ‘generally’ is used is that it means that the characteristic must apply to all or nearly all of the persons (as a general rule or commonly) of that particular sex. The other sense in which ‘generally’ is used is that the characteristic when it does exist or occur, applies to all or nearly all (as a general rule or commonly) to the persons of that particular sex. …”
It is noted from that extract that the Board referred to the Shorter Oxford Dictionary meaning of "generally" which, amongst other things, refers to the concept of a "general rule" or "commonly".
In my view the Respondent's submissions in relation to this threshold issue are misconceived and without merit.
If the Respondent's submissions are correct then it would deny Applicants such as the present Applicant, who has taken maternity leave, to rely upon what could only be regarded as a significant provision of the SDA. The SDA itself in s.3 includes as part of its objects the giving effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and specifically sets out an objective to eliminate, amongst other things, possible discrimination against persons on the ground of pregnancy or potential pregnancy in the areas of work.
To eliminate from the claims of unlawful discrimination under the SDA a claim of a pregnant woman arising from maternity leave taken from work would in my view be contrary to the spirit and intent of the SDA and specifically contrary to the objects of that legislation.
Moreover, in my view the attempt to analyse the material in the somewhat technocratic manner proposed by the Respondent is indeed misconceived. I apply and adopt the dictionary definition of "generally" referred to by the Sex Discrimination Board of South Australia in Bear and further apply and adopt the reasoning, albeit without argument set out in [165] of the decision of Allsop J in Thomson.
Allsop J in my view correctly identifies the physical characteristic appertaining generally to women who are pregnant; namely that the birth of a child necessitates some confinement and so some inability to work in paid employment. The reasoning leading to the conclusion, even if regarded as obiter and of only persuasive authority, in my view is compelling and should be applied, leading to the conclusion that the taking of maternity leave is a characteristic of pregnancy.
I find that it is a characteristic that appertains generally to women who are pregnant or potentially pregnant as it commonly applies to those women. In fact not only does it commonly apply to women who are pregnant or potentially pregnant, it is a characteristic that is exclusive to women who are pregnant or potentially pregnant and that those women commonly seek and obtain maternity leave.
Hence, on the threshold issue I reject the submissions for and on behalf of the Respondent.
Relevant Statutory Provisions
Apart from s.7 of the SDA set out in paragraph 27 of this judgment it is also relevant to set out ss.5(1) and 14(2) as follows:-
“5(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
…
14(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.”
The Applicant’s Evidence
In support of the application the Applicant gave evidence and also relied upon evidence of Katharine Ann Elder, a Broadcaster and Jocelyn Figliomeni, Production Secretary.
The applicant
The Applicant relied upon two affidavits sworn 30 December 2004 (the first affidavit) and 31 August 2005 (the second affidavit).
Certain deletions were made to the first affidavit mainly as a result of agreement between the parties.
Apart from adopting the affidavits the Applicant in brief terms re-stated those facts which the Court has already found and which appear to be agreed between the parties as set out in paragraph 11 of this judgment.
In her first affidavit the Applicant deposed that as at May 2002 her job was entitled “Production Resources Co-ordinator” and in that position she reported directly to the head of Western Australia Production Resources. She was required to provide administrative assistance to the head of Television Production Resources in Perth. A chart was referred to during the course of the evidence entitled “WA Production Resources”. It was a reporting line which showed that the Applicant’s manager was Stephen Johnston and his position had been taken over by John O’Brien, a witness called for the Respondent. The chart clearly shows that the Applicant had worked in a position where she reported directly to the manager though worked with others in the department.
In her first affidavit the Applicant describes her duties in the following terms in paragraphs 8-10 of her first affidavit:-
“8 1 reported directly to the Head of Production Resources WA. I coordinated bookings, rosters and administration of the daily supplies of labour, facilities and transmission to meet internal and external client requirements, program demands, deadlines and costing for production and assist with news current affairs requirements. I produced reports on resources, and maintained booking schedules, managed seven rosters across several different awards, coordinated and informed staff and management of performance assessment meetings, prepared time tables for professional assessments and the necessary paperwork for assessments, processed and maintained local records. Also provided administration for the Senior Management. This included the Head of Technical Services, Head of TV Transmission, Finance Manager, Manager News/Current Affairs, Studio/Outside Broadcast Manager, Production Managers, Senior Technical Producer and Technical Producers, Production Resources Staff, Technical staff and back up for production unit.
9 I also maintained and coordinated finance, SAP procurements, petty cash, credit card accounts, cab charge, telephone billing, travel expenses, invoicing, salary estimates, general operational expenses, salary reports and mobile phone logistics.
10 I kept records of staff entitlements, leave, ADO’s (days off) and staff contracts. I coordinated work experience programs, provided advice to staff on working conditions and departmental policy and procedures. I provided administrative assistance to the Head of TV Resources including preparation of reports, submissions and correspondence and undertaking special projects. I was the central point for all queries to TV Resources and also fulfilled duties such as filing, mail, typing and assets management.”
The Applicant asserted that her manager in 1999 Mr. Johnston had indicated to her that her role was consistent with that of a Band 5 under what is described as the “1999 Enterprise Bargaining Agreement”.
The Applicant claimed that Mr Johnston had spoken to the Human Resources Manager and was told that he needed to write a report on the Applicant’s job description and then commence a formal process for review of the position. The Applicant claimed that she together with Mr Johnston commenced preparation of a job description but that
Mr Johnston went on leave and left the Respondent to be replaced by Mr John O’Brien. When Mr O’Brien took over as the Applicant’s manager she claims to have told him on a number of occasions that she was aware that her equivalent position was designated “Band 5 in other States” and that she “expected to pursue the process to have her level reviewed as discussed with Mr Johnston”.
The Applicant claims she was due to undergo a performance management process with Mr O’Brien in March 2001 but that did not take place. When she asked Mr O’Brien when it would occur she claims his response was that “he was behind with all performance management”.
The Applicant in her first affidavit then deposed that in about April or May 2001 she advised Mr O’Brien and others at the Respondent that she was pregnant and that on 30 August 2001 applied for what she describes as “a combination of maternity leave, recreation leave, long service leave and leave without pay commencing on 10 September 2001 to 8 September 2002”. The Applicant asserts that at that stage she still “had not undergone performance management or had (her) position reviewed despite numerous requests”.
It is relevant at this point to note that both parties relied upon and referred to the “ABC Employment Agreement 2000-2002” (Exhibit R1). Relevantly, that agreement provides in clause 18.4.3 the following:-
“18.4.3 The job plan will be developed by the manager with the participation of the employee and shall be mutually agreed in writing. In the case of disagreement at this stage, the employee may refer the matter to the manager’s manager and then to the portfolio head , in an attempt to have it resolved.”
A further agreement entitled “ABC Employment Agreement 2003-2006” was also tendered in evidence (Exhibit A17) which relevantly provides in clause 44 the following:-
“44.1.1 Female employees of the ABC are entitled to Maternity Leave in accordance with the provisions of the Maternity Leave (Commonwealth Employees) Act 1973.”
In her first affidavit the Applicant deposes that “finally in September 2001 immediately before I was due to commence leave my performance management meeting was arranged”. Although the Applicant expected Mr O’Brien to attend the meeting as had been the case of his predecessor she found that a Miss Fiona Holden attended. The Applicant referred to a document entitled “Performance Agreement” which had annexed to it a job plan which appears at p.107 of the Applicant’s first affidavit. She claimed to have been handed that job plan in draft form and that this was the first occasion that she knew that Ms Holden was her manager. The Applicant claims that this occurred “one to two weeks before my maternity leave started” (Transcript p.30 line 4).
A number of observations may be made about the job plan draft as it appears with hand writing deleting “Band 4” and inserting “3”.
Also on the draft plan the job title is described as “Resources Liaison Officer” and the words “Liaison Officer” have been deleted and the word “Co-ordinator” inserted in hand writing. The cycle for the agreement is claimed to be “1/07/2001 to 26/03/2002”. The draft job plan has a number of alterations and insertions under the headings “Accountabilities” and “Key Objectives”. Just before the Applicant commenced maternity leave she claims to have been provided with a further job plan which is annexed to her first affidavit at p.111 and in addition to the accountabilities and key objectives in the draft plan also includes an additional objective namely,
“10. Be on call as required for after hours staffing requirements”.
The Applicant claimed that that occurred when asked by Mr O’Brien if she could take over and relieve Ms Holden and other managers from on call duties.
During the course of her evidence the Applicant elaborated on her duties which had been described in paragraph 10 as being “the central point for all queries to TV resources”. The following exchange occurred,
“What sort of queries are you talking about there?‑‑‑Meaning that any kind of bookings that would come through, whether they were for studio, using staff, equipment, resources and making interchange bookings, I would be the first point of call. If they were on a daily booking, I would attend to that from start to finish. If they were a more complicated booking, like an outside broadcast, which the booking's actually done from Central Sydney, I would then pass that on to a manager in which to deal with because there is a lot - technicality involved in putting an outside broadcast. Also - availability of bookings, people would ring up saying, oh, is such and such booked, or can I have it. Staff - enquiries regarding their rosters their pays. Anything to do with the EBA. Basically everything and anything.
Okay. And in relation to the bookings and the enquiries about availability, was there anybody else that people could contact. Who else could people contact in relation to those things?‑‑‑I was the first point of call. There would be John O'Brien or an OB Operations Manager but that would be, oh, you know, if someone would call them, it would be: Oh, hey mate, you know, we're thinking of doing this. But then that booking would always come through me at some point.
Now, I just wanted to deal with some of the documents which are in your complaint form, Ms Ilian. If you turn to page 105 of the affidavit?‑‑‑A letter of approval, maternity leave, is that the one?
Have you seen that document before?‑‑‑Yes, I have.
And when did you see the document?‑‑‑That was sent to me during my - just before going on maternity.
Who sent it to you?‑‑‑Human Resources, pay centre.
Okay and, your Honour, I tender that document. It is - I am not sure what the best way but it needs to be tendered separately.”
(Transcript p.3o line 45 to p.31 line 14)
In the course of her evidence the Applicant referred to a letter dated
4 September 2001 from the Respondent to the Applicant entitled “APPROVAL OF MATERNITY LEAVE”. That letter (Exhibit A2) though referring in the title to “maternity leave” confirms that in addition to the maternity leave the Applicant was to take annual leave from 3/12/2001 to 24/1/2002 “followed by long service leave from 25/1/2002 to 16/6/2002 followed by leave without pay from 17/6/2002 to 8/9/2002”. It is also noted in the letter that if the Applicant was sick during those periods of leave she would need to provide a medical certificate and she was advised that she then had “107.49 days of sick leave full pay available”. Advice was further given to the Applicant concerning leave without pay and a request made of her to forward a copy of her baby’s birth certificate when able to do so.
It should be noted that after commencing maternity leave the Applicant appealed from a decision of Mr O’Brien in relation to her job plan. She lodged the appeal pursuant to clause 18.7.2 of the ABC Employment Agreement and argued in part according to her first affidavit that “the skills set required of my position was in line with Band 5”. Her appeal was unsuccessful and she received correspondence from Mr O’Brien on 27 November 2001 refusing to assess her at a Band 5 level as requested and set her job plan at “Band 4 level”. In the letter from Mr O’Brien the Applicant was advised that she had a further option to refer the matter to HD Resources Southern Region. She did not do so and in her evidence claimed that was due to the fact that she was then “quite sick with post natal depression” and also that she was “out of time” (Transcript p.34 line 35).
The Applicant’s first child was born on 5 October 2001.
The Applicant was due to return to work in September 2002 and according to her first affidavit in the meantime she became pregnant again “as of June 2002”. She claims to have suffered post natal depression and was unfit for work “from September 2002 to February 2003”. She notified the Respondent in November 2002 of her intention to take a further period of maternity leave from 29 January 2003 to
22 April 2004. Her second child was born on 28 February 2003.
Prior to leaving on her maternity leave the Applicant claimed to have trained her replacement a Ms Lorraine Sanders and the training occurred over a 3-4 week period.
The Applicant deposed in her first affidavit that in August 2003 she contacted Mr O’Brien to confirm that she was due to return from maternity leave in January 2004 and to discuss her return to work. It is appropriate to set out the following paragraphs from her first affidavit:-
“25 In August 2003 I contacted Mr O’Brien to confirm that I was due to return from maternity leave in January 2004 and to discuss my return to work. I told him that I was returning to work full time, that I was doing well and was interested in coming in to work before January to look around and see if anything had changed. Mr O’Brien suggested that we should schedule a time in December and told me that he would ask Janet Preston to contact me. However I did not hear from Janet Preston or Mr O’Brien again at all. I continued to ring the ABC leaving messages for Mr O’Brien. I received no response. Finally, in January 2004, about 2 weeks before I was due back at work, I telephoned and spoke with Pam Oliver and she told me not to worry about coming in to work before the end of my leave, but to simply show up on 21 January 2004. She seemed keen to avoid discussing very much about my return to work with me, and I had the impression that there were no real plans in place for my return to work.
26 On 21 January 2004 I arrived at work and had a meeting with Mr O’Brien. The meeting lasted for approximately 1.5 hours. During this meeting Mr O’Brien said to me “your job is gone” and “title is gone” and “we have to find you some alternative duties.” I was completely shocked. I asked Mr O’Brien what my duties would be. I also asked him what my title would be. I was told that my replacement, Janet Preston, was ongoing in my position and tit because I was away on leave for over 2 years. He said “he was only obliged to provide me with a position set and the same level and standing. He told me that I needed to concentrate on the “training” in the new SAP software, however that software had been installed for purchasing and finance as of 1999 three years earlier and I did the training for the new Modual — Human Resources (rostering) in September of 2001.
I was familiar with it and did not require extensive “training”.”
In her evidence in chief the Applicant gave the following evidence in relation to what occurred when she arrived back at work on 21 January 2004 as follows:-
“On my first day back at work I was a little bit nervous and anxious, as I would be. I proceeded through the television reception entry to go to my normal workplace. Once there, I was greeted by some of the staff, being Janet Preston, Fiona Herbert and Ross Haynes, who was one of the technical managers. All welcomed me back, which was very nice. And I was told that I had received some flowers and that they were on my desk, so I proceeded to go to my desk. And they said: No, that is not your desk. Your desk is over here. And when I looked across, yes, my desk was definitely somewhere else. And all it had on it was the computer and, sort of, some files and a whole bunch of flowers. And at that point I thought, I wonder why that is. Also, Pam Oliver was not there to greet me. I remember an email of her sending me saying I can't be there to greet you this morning. She could have been there in the afternoon, but I have no recall of her of that day. Also, John O'Brien had then come in into that area, office area. And said that he would like to meet with me at around 10 o'clock or something to that effect. When that time approached, John came down and got me and we went into his office and we met for about over an hour, almost an hour and a half.”
(Transcript p.35 lines 16-31)
In her evidence the Applicant made further reference to “SAP software” and relevantly stated the following when elaborating on her claim that she was familiar with it and did not require extensive training:-
“… Prior - the SAP software, I had already done the finance component of SAP, finance procurement. Two years - a year - two years prior to me going on maternity leave and just prior to me going onto maternity leave, the week prior, I am pretty sure it was the week prior, they had a course for SAP HR rostering which there was about eight of us in that room and it was conducted by Michael Jackson. The way I can describe SAP HR rostering is in computer, is like going from Windows to Windows XP. The application changes but the actual essence of rostering, knowing the awards and all that, remains the same. It is just where you place it in what box.”
(Transcript p.35 line 41 to p.36 line 3)
In her evidence in chief the Applicant elaborated on her meeting with Mr O’Brien in the following terms:-
“Yes?‑‑‑At the moment, I just want you to concentrate on refreshing and training on the SAP HR rostering system and getting up to speed onto that and requiring, you know, a hundred per cent accuracy on - on getting up to speed with the SAP. I inquired as to what would I be doing. He - he then replied to me that they still had duties to find for me. There was nothing defined and that would come later. He told me that MCR Radio, just one small compartment of radio would be with Resources. That was nothing new and meant no extra work or anything to me as that department would come back and forward over the years under whose - who their manager was. At the time, I asked him about my replacement and he said that Janet was now ongoing and that was due to me and my fault because I was away for so long.
Okay. What did he actually say. You say: I asked about my replacement. What did you actually say, do you remember?‑‑‑Because he - he - he said he - she was ongoing, it was due to being my fault and I replied: well, why would that be? And - and he said: well, because you were gone for so long. He - he never actual - gave - would give definite - he would always be - what's the word - ambiguous. Not quite - give you half an answer, not the whole answer, not the whole picture. He said that my replacement will be ongoing and all he wanted me to do was basically concentrate on SAP. I also brought up with him, saying: well if my job is gone and title and that are gone, I had an outstanding job plan, what - how does that reflect to that. And he said: well that's irrelevant now because the job's gone. That was pretty much what we talked about for that time.”
(Transcript p.37 lines 5 -26)
In her first affidavit the Applicant refers to her tasks upon return to work and stated the following:-
“27 Mr O’Brien was vague and uncertain about what I would be doing. He didn’t appear to have any particular plan in mind. Over the next few weeks I was allocated various miscellaneous and menial tasks. I had insufficient work to fulfil my hours and
I was sent out to other areas and was looking for things to do.
I worked on familiarizing myself with the new software and felt familiar and competent within a few days.”
In her evidence the Applicant elaborated in the following terms,
“… I was basically - Janet was training me in - in the SAP HR module but it was ad hoc. It was sort of - wasn't quite scheduled at first and it was pretty much to what ever she wanted me to do. If it was to do some photocopying or go and get some mail or - it seemed pretty clear in the picture that that's who I - I took instructions from, was Janet.
(Transcript p.37 lines 33 – 36)
In her first affidavit the Applicant made reference to her position in the following terms:-
“28 My job was not ‘gone’. Janet Preston had been employed in my job. Janet commenced employment with the ABC in June 2002 specifically to fill in for me whilst I was on leave. Her title was ‘Production Resources Co-ordinator’. As far as I could observe, she was performing precisely the same duties that I performed before I commenced leave. She reported to Mr O’Brien and she was paid at Band 4 level. I am aware that Ms Preston was engaged on a fixed term contract, initially for a 6 month period, and was re-engaged on 2 further 6 month fixed period contracts, the second of which expired only 1 week before my return to work. This is contrary to what Mr O’Brien told me, that is, that Ms Preston was permanent and ongoing. At no time did Mr O’Brien or any other person assure me that I would or could return to my position as Production Resources Coordinator.”
The Applicant claimed that she would offer to assist Janet Preston and on occasions would receive instructions from her regarding duties.
She produced an email dated 10 February 2000 (Exhibit A6) where
Ms Preston set out certain duties for the Applicant. A further email from Ms Oliver to the Applicant was produced (Exhibit A7) dated
29 March 2004 requiring her to attend for an appraisal on 7 April 2004. In her evidence the Applicant claimed that in discussions with
Ms Oliver she was told, amongst other things, that she had a lack of attention to detail and had fallen into her old habits “away from (her) desk all the time” and that there had been complaints made against the Applicant (Transcript p.41).
In her second affidavit the Applicant elaborated upon the duties the Applicant performed in Technical Services and claimed that she was “frequently interrupted by requests from Pam Oliver and Janet Preston to basically put down what I was doing to attend to something else like booking equipment, finding out where we sourced an urn, calling someone to change their roster times, photocopying, picking something up” (paragraph 5).
Significantly in her second affidavit the Applicant deposes as follows:-
“6. I found it virtually impossible to plan my day because I did not know what my duties were, and was directed to do things by Janet Preston or Pam Oliver often at the last minute. Pam Oliver directed me to check my emails regularly.”
The Applicant also expressed concern about emails from Janet Preston and noted that they were “particularly inappropriate given that her desk was literally metres from mine”. A plan of the office was produced clearly indicating that the desks were adjacent to each other and on the plan which appears at p.320 of the Applicant’s first affidavit reference is made to the Applicant’s workstation as, “ADMIN ASST ILIAN” whilst reference is made to Janet Preston’s workstation as ‘RESOURCE COORD PRESTON”.
In her second affidavit the Applicant referred in more detail to the need to clarify her position and states relevantly the following:-
“8 As to paragraphs 36 and 40 of my previous affidavit, the occasions on which I asked for clarification of my position included:
8.1 Immediately after my meeting with John O’Brien on 21 January 2004 I went to see Janet Pearce, the Human Resources Officer. I told her that John had told me my job was gone. She said that was “probably right.” I also told her I had been told Janet Preston was ongoing in my position. Again she said that was possibly correct, because she had been there for over 12 months. She told me that if my job was gone, I only need to be given a comparable Band 3 position.
8.2 In the first 2 weeks after my return Janet Pearce asked me to have lunch or coffee with her. I asked her whether that was for pleasure or for work. She said it could be whatever
I wanted it to be. During the meeting she asked me how
I was doing downstairs. I said that I enjoyed being back but that I did not understand what was going on, as Janet was still in my job, and there could not be 2 people in the same job. She agreed. I asked whether there was a redundancy. She said that only John O’Brien could answer my questions. I told her I was not getting any answers from John.
8.3 A request sent directly to John O’Brien by e-mail on 4/3/2004. 1 had heard that there was a position vacant on a temporary basis, elsewhere in the organisation. I e-mailed John O’Brien to ask if I could be considered for that position. O’Brien’s response was there would be no requirement for backfill. I was further advised that the project was deferred. O’Brien mentioned in his response, that at best there may be some limited assistance required from both Janet Preston and myself He also remarked if other opportunities arose I would be considered. The catalyst for me looking at other positions within the organisation was that I was displaced from my own role by my substitute.
8.4 In the second month after my return to work I went to Janet Pearce’s office and asked her whether I had done something wrong, and is that the reason why this is happening to me. I noted that Janet was still in my job, it had been about 4 or 5 weeks since my return and I was not being allowed to function properly. Janet told me I needed to talk to John. She again confirmed that Janet Preston was ongoing and that the ABC needed only to give me a position of the same standing.
8.5 After the “whiteboard incident” referred to in paragraph 9 below, I found Janet Pearce outside the building and I told her “I can’t take this any more. I need to know what’s going on.” I hounded her and she tried to calm me down, but again I did not get any explanations or answers.
8.6 In a meeting with John O’Brien to discuss my performance appraisal in the first week of April 2004,
I asked John O’Brien “what is my future with the ABC?” His response was “where do you see yourself?”
I commented that he knew where I would like to be, but he held the cards. He said, “You can do whatever you want” which I found to be a meaningless statement. He never gave me a straight answer as to whether I would be re-employed as Production Resources Coordinator. I told John then that
I still had not been given any definite duties and that Technical Services had given me a clear outline of my duties but that in Production Resources I was not even allowed to photocopy. I also told John that I felt Janet was not training me or showing me things. I also mentioned to O’Brien that the roster codes were confusing as there was no real system and how I could make it more user-friendly for all.”
During the course of her evidence the Applicant produced an email from Janet Pearce to the Applicant dated 22/01/2004. That email was in response to an email from the Applicant to Mr O’Brien which in part seeks to refer to an interest in another position. It was indicated to her that this would not occur. The email from Ms Pearce relevantly states in part the following:-
“ … When you have been on extended leave (leave without pay) when you return to work you either return to the position you were in when you went on leave or to another position of equal standing”.
In her second affidavit the Applicant provided further details about the difficulties she experienced upon her return to work and what she understood to be the usual practice for people taking leave and returning to previous duties. Relevantly she stated the following:-
“9 The confusion over my role became very apparent and unpleasant on a particular day when Janet Preston yelled at me for adding a field booking onto the whiteboard. I added the booking on Pam Oliver’s instructions. Janet came in to the room and yelled “What’s going on? How dare you! Don’t you ever touch that board again. I’m the only one who has authority to do that.” I told Janet that if she had a problem with what I had done she should take it up with Pam Oliver as Pam had instructed me to add the booking. I was particularly upset about this incident because I had helped one of my previous managers construct & introduce the whiteboard booking system 12 years previously, and now Janet was claiming that only she had authority to use it.
10 During this time Janet Preston seemed generally unwilling to hand over any substantive duties to me. If I asked to do a job for her she refused. I could only do the tasks which she at her discretion allocated to me.
11 The ABC is a large organisation and people were frequently going on leave for a variety of reasons including illness, long service leave, travel, and injury. Over the 20 years that I was employed at the ABC I observed this occur on countless occasions. In every instance I can recall, the ABC appointed someone usually from within the organisation but sometimes externally to the employee’s position on a temporary basis. Indeed I filled in or covered for people taking long periods of leave from time to time. When the employee returned from leave, there would be up to a week of transitional hand-over back to the employee, and then the employee returned to their previous position and things quickly went back to normal.
The Applicant was cross-examined in detail concerning her evidence and work undertaken upon return from leave.
She agreed that she had asked for a job plan process to be initiated in March of 2001 (Transcript p.52) and she further agreed under cross-examination that some time prior to that she had discussed with
Mr O’Brien her view that the work she was doing deserved a Band
5 rating. The Applicant was specifically asked questions about a discussion with Mr O’Brien in about May 2001 about long absences from her desk. The following exchange is relevant,
“See, my instructions are that - well, did you have a discussion with Mr Herbert, can you remember? I am sorry, not Mr Herbert. Can you remember having a discussion with Mr O'Brien in about May 2001 about being such long absences from your desk and long chat sessions with a range of people?‑‑‑No. He made a sarcastic remark about me being away from my desk in the office and Fiona was in that office. And as I said to him then, and if I am allowed to say now, that my job as the Resources Coordinator back then, to inform staff of their hours change was not a simple phone call. I had to have a physical paper in which to go and find them, get them to sign off. As you said yourself, we are across many buildings. Now, I would try and - you know, if there is a group of people coming at the same time and all those people had those hours changed, well, of course, that would be easy. But if I have got ten people in ten different areas and sometimes some of them are off location, I have to make sure that I get those signatures. Because they can then turn around - that will take me away from my desk several times a day.”
(Transcript p.53 lines 25-39)
The Applicant agreed that she was made aware that there was a delay in producing job plans and had been told that there had been a delay in respect of all persons in the department though she was not aware of anyone else’s job plan (Transcript p.55). She otherwise agreed that her notification of her first pregnancy was in or about April 2001 which was after the date she had had the discussions concerning the job plan. She agreed that from March 2001 Mr O’Brien would have no basis from discussions with her to think that when she had those discussions she was pregnant because in March she had not announced it to the Respondent (Transcript p.55). The Applicant agreed that once having developed a job plan with Ms Holden that final acceptance would be a matter for Mr O’Brien (Transcript p.57). The Applicant was then cross-examined about her duties which she had referred to as justifying a change of classification. She agreed that she had reached the top of her increments within her classification and had not progressed since the year 2000 to another band. She otherwise agreed that there was no guarantee of an increment at the end of a job plan review.
The Applicant further agreed in cross-examination that when she proceeded to take maternity leave in September 2001 she anticipated that she would return to work in September 2002 and had not then foreseen the fact that she would become pregnant again and require a further period of leave. She acknowledged that before going on leave in September 2001 she received a certain amount of training in the new SAP system which had been introduced in about August 2001 (Transcript p.65).
During the course of cross-examination the Applicant was asked what was the benefit that she was deprived of by not going back to her original desk. She responded, “Well, I was not put back in my job which they said was gone”. She further described how she was sitting in close proximity to Ms Preston and if she wanted to get any documents from a filing cabinet would have to ask Ms Preston for permission and could easily get up and go to own systems (Transcript p.73).
Counsel for the Respondent put to the Applicant certain material from Mr O’Brien’s affidavit. The following exchange is relevant:-
“Now, when you came back from leave you immediately saw that somebody was there doing the duties which you had been performing and that person was Janet Preston and you were told by Mr O'Brien, or Ms Oliver, that you needed to undertake training under the supervision of Janet Preston?‑‑‑By John O'Brien.
Or something of that effect, that was by John O'Brien?‑‑‑Yes, it is.
And that was in the meeting which you had with John O'Brien on 21 January, I think?‑‑‑Correct.
Now, you gave your evidence of what was said, or what you say was said by John O'Brien on that day, can I ask you to comment on what he says he said and that is in his affidavit, have you still got a copy of that? John O'Brien's affidavit?‑‑‑Yes.
At page 17.14 and 15, that is a summary of what he says he said?‑‑‑
At no stage during this meeting did I say your job is gone and we have to find you some alternate duties.
I totally disagree with that because why would I go to Janet Pearce and ask her that question the very same day?
I did not say that Janet Preston was ongoing in her title -
yes, he did -
and her duty's on a permanent basis.
Yes, he did.
Instead what I did say was that over the last few years there have been some changes and that production was taking responsibility for supplying additional admin support to Technical Services.
That is incorrect, he said that we will be taking on MCR Radio which is a tiny small component which has flipped back and forward over the 20 years I've been there:
(a) ScheduALL had been introduced to replace Focus.
Yes, that is correct:
The performance appraisal coordination and the general workload had increased.
I don't remember him saying that at all”
(Transcript p.75 lines 1-45)
It was clear during the course of cross-examination that the Applicant conceded that she had used the SAP program before commencing maternity leave and recognised that it was an important part of her job given that rostering accounted for about 50% of her job. She conceded that training would be required and that it was reasonable for her to be requested to undergo training as a part of resuming all of her duties (Transcript p.77). However, she did not concede that she was being asked to train in order to resume duties then performed by Ms Preston. The following exchange is relevant:-
“You would agree, wouldn't you, that ultimately it was the responsibility of Mr O'Brien as the manager, to determine whether an employee who had come back to the work place after an extended absence, was competent to resume all of their duties after doing the training which was required?‑‑‑Yes, you would assume so.
Yes. And you came back and you were asked to undertake the training in SAP which you knew, even before you had gone on leave, was the new computer program for rostering of personnel?‑‑‑Correct.”
(Transcript p.77 lines 20-28)
The Applicant conceded that some of the duties she was required to perform in Technical Services were similar to duties she had previously performed prior to commencement of maternity leave. She highlighted however differences which included a requirement to take dictation which she had not done for 20 years. The following exchange is relevant,
“… Can I put it to you then that none of the things which you were being asked to do when you came back from leave were in any sense different in nature to the administrative duties which you had done before you went on leave?‑‑‑Yes there is, I never did Tech Services duties in that fashion. I never took dictation, I never did the news letters. I wasn't an editor. The minutes would, you know, were meant to last an hour. When I got there, they were going for two hours and if you're trying to take dictation and not have a dictaphone, on long hand for two hours and then try and transcribe that and then from that, transcribe in that and make a news letter to circulate out on the web, which I am not proficient on the web, no. Not the same.”
(Transcript p.82 line16-25)
Following that exchange there was then the further significant exchange concerning any claimed connection between maternity leave and the requirement to perform duties with Technical Services as follows,
“There was no suggestion that you were asked to do these duties with Technical Services because you had gone on maternity leave or had been pregnant?‑‑‑No.
That is correct?‑‑‑I was - that is correct, I was asked to do these duties because they had no other duties for me.
Can I put it to you that it was not said to you by Mr O'Brien that they had no other duties for you?‑‑‑That would be a lie because he did say that.
Well, when did he say that?‑‑‑He said that at the first meeting.
That was on 21 January?‑‑‑Yes, they had no duties for me. They had nothing planned.”
(Transcript p.82 lines 26-39)
The Applicant appeared resolute when asserting that she had been told by Mr O’Brien that her job had gone and relevantly the following exchange occurred during cross-examination,
“You say that he would be lying if he was suggesting that he didn't say that?‑‑‑He would be lying if he said that - anything otherwise than that, yes. Or then I would be lying and I - I can tell you now that I wouldn't have been going through this for two years on a lie.”
(Transcript p.82 lines 41-43)
Under cross-examination the Applicant elaborated on the complaint she had that upon her return to work she was subject to what she described as “intrusive supervision”. She was asked to explain what she meant by that term and provided the following answer,
“What do you mean by "intrusive supervision"?‑‑‑Meaning that if - if I went to - they had - well, whenever I was training, I would be called up to see if I was there, if I had left there. If I went to the toilet, they knew, when I went to lunch, when I came back, they would walk past, especially Janet. If I would be asked by Pam to do a task, Janet would then email, not ask me, and try and say: Has that task been done, it's been so many days, not knowing that that task had already been done and finalised with Pam. Pam had also responded to Janet on those emails saying, basically: Task done, butt out.”
(Transcript p.84 lines 20-26)
The Applicant conceded that when asked to undertake specific duties as part of her work in Technical Services no one specifically referred to her maternity leave as being the reason for the request.
The Applicant referred to what she described as “menial duties” which she was required to perform on her return from maternity leave.
In cross-examination she was asked to be specific about the menial duties and the following exchange occurred:-
“The menial duties you have given some evidence of, what were they?‑‑‑It could be - menial duties was anything basically that Janet and Pam didn't want to do that they put on to me. I became their lackey. I ‑ ‑ ‑
Can you be specific about exactly what these menial duties were?‑‑‑It could be - I have not undertaken any of my duties from - when I came back from maternity leave, not one of my duties, other than the one, writing on notice boards, I did. I did not have any duties. So I would succumb to whatever it was. Tina, go and get the mail. Tina, go and do that. If you can understand from going from a senior admin person, okay, who worked autonomously, who is being told, go and pick the mail, I became a junior. Do you understand that? Because of my pregnancy and absence, I went - yes, I can understand the training component. And, yes, I had to learn that. But the other side of my duties which I did not have to learn, which have been embedded in me for 20 years were not handed over. And in front of my colleagues and my peers when they would ask me questions to help me, I was not allowed to. I had to - simple questions. Like, Tina, can you tell me how much leave I have? I would have to refer that to Janet or to Pam. Can you understand, going from a senior position to a junior? Menial tasks as photocopying or making a cup of coffee or something. At the end of the day someone has to get a glass of water or do the photocopying or that. But after three months of this, being subjected ‑ ‑ ‑ ”
(Transcript p.90 lines 16 – 31)
The Applicant referred to the fact that prior to taking maternity leave she had worked autonomously rather than receive instructions to do work which she regarded as menial. She agreed however that no other staff member reported to her but rather she worked for Mr O’Brien and Ms Holden.
Significantly the Applicant denied that she had ever been told by
Mr O’Brien that there was never any question that she would be returned to the position of Production Resources Coordinator (Transcript p.105). Further, the Applicant denied that Mr O’Brien explained to her that in her absence there had been changes including responsibility for Production Resources for administrative support to Technical Services and that Production Resources had agreed to supply a level of administrative assistance to Technical Services.
In relation to the Applicant’s performance including preparation of rosters she conceded that she may have made some mistakes but they were subsequently checked and re-checked and picked up (Transcript p.117). The Applicant otherwise denied the perception of Ms Oliver that the Applicant had made a number of mistakes though agreed that discussions occurred about lack of attention to detail and other issues. She agreed it was reasonable for Ms Oliver to get her that type of feedback. She referred to the contact as being a performance appraisal and stated that Oliver “wasn’t talking about maternity leave” (Transcript p.119). Significantly the following exchange occurred,
“… When Liz Oliver spoke to you about what she thought were mistakes you were making on the computer system, there was no suggestion that she thought - well, I withdraw that. There was no suggestion that she did say in any way which is connected with you taking maternity leave?‑‑‑No.
Thank you. And after this discussion on 21 April it is correct, isn't it, that there is no suggestion that the ABC was suspending you for lack of performance?‑‑‑No.
There was no suggestion that the ABC was going to dismiss you for lack of performance?‑‑‑No.”
(Transcript p.119 lines 36 to p.120 line 2)
It is also useful by way of summary to set out the following evidence from the Applicant under cross-examination where she effectively provides an overview of the employment upon her return from leave and just prior to her last day of work on 21 April 2004. The Applicant was asked to agree that she had the opportunity to come back to work the next day and continue to stay and work and perform and the following exchange occurred,
“In fact, there was no suggestion of any disciplinary action at all for lack of performance?‑‑‑No.
And you would agree that you had the opportunity to come to work the next day and continue to stay in work and perform?‑‑‑But what happened was ‑ ‑ ‑
I am sorry, Ms Ilian, could you ‑ ‑ ‑?‑‑‑Yes, but what happened was - is that after my discussion with Pam Oliver it became even - it cemented what I already knew and what was happening through the three months, that no matter how many times I crossed - dotted my i's, crossed my t's, did what I was asked at the desk, being pushed from pillar to post from department to department, that an organisation that I worked for, for 24 years, no matter what I did was not happy and did not want me there and made it clear. Do you understand, that is what took me down. Not disciplinary action, or that Pam yelled at me, it was the impact of the three months of daily, constantly putting up with this. And then to finally have Pam say to me lies about being away from my desk and complaints and couldn't even substantiate that, you tell me how you would feel. Yes, I went down that night, I walked out of there and in that meeting and every day, I was a professional, I did not yell or scream or make waves, I did as I was told. And by doing as I did as I was told I was bullied, I was impeded on and stopping doing my work, all those things. Do you understand, I don't think so. I know that you are there to show something else, but this is what has happened in those three months and what I was subjected to in that final discussion, it was not a disciplinary action, but it was a realisation that an organisation I worked for did not want me. My perception of it, on a daily basis.
(Transcript p.120 lines 4-24)
In relation to the job plan the Applicant agreed that she was told that her job plan would be assessed around March/April 2004 and that she refused to sit the performance appraisal because she did not believe that she had been performing work according to the job plan (Transcript p.121). Whilst acknowledging that part of her work involving the roster was consistent with the plan, she referred to the fact that in her position on return she was “under supervision the entire time” (Transcript p.121). She otherwise denied that administrative duties performed in Technical Services were the same as the duties she previously performed in her other role as Production Resources Coordinator.
The Applicant was cross-examined in relation to paragraph 11 of her second affidavit set out in paragraph 81 of this judgment. She was unable to give precise details of staff who had taken leave and returned though referred to the staff of “200 people”. She did specifically refer to a camera man going on leave and coming back after a long absence as well as other members of staff though could not identify one case that had to take the leave similar to that of the Applicant. She agreed that there were no problems when she had returned to work from an
8-10 week absence in 1999 when she was married.
Ms Oliver otherwise deposed in her affidavit to the return to work of the Applicant and the training required in relation to the SAP program. She claimed that the Applicant did not indicate that she was dissatisfied with arrangements put in place for training and her duties upon return. She otherwise asserted the Applicant was still being trained in the SAP system in April 2004 because “she had not mastered the introductory data entry stage”. She deposed that she would not allow the Applicant to progress to more advanced training including maintenance and management of rosters until the Applicant was capable of entering correct data into the system. She did not appear to become aware that the Applicant was unhappy and did note she had discussions with the Applicant about errors but otherwise indicated that she did not receive any complaints from the Applicant about her work or what are claimed to be menial tasks other than a complaint she received on 21 April 2004 at a meeting with the Applicant where the Applicant expressed difficulties with Ms Preston.
Ms Oliver referred to the supplementary affidavit of the Applicant and in particular paragraph 12 where the Applicant had asserted she had told Ms Oliver that she wanted her old job back. In her affidavit
Ms Oliver simply stated that she did not recall the Applicant asking for her job back but would have recorded this in her notes had the request been made.
The notes dated 21 April 2004 are typed and comprise a list of concerns referred to earlier in this judgment. Specifically reference was made to unaccounted long absences recorded as being raised with the Applicant and the note records, “Tina seemed quite shocked and denied the statement”. The note then records, “I mentioned both John and I had received feedback ie, ‘Tina’s falling back into old habits again’”.
The following notes appear in bullet form under the heading “Concerns”:-
“• Rosters taken for long periods of time, when updates really should only take 15 minutes).
Didn’t address this issue
• Doesn’t appear to have a happy disposition
She alleges she feels pressure from Janet, and can’t predict Janet’s moods. My advise was just to move on and let me know if there were concerns that needed to be resolved.
• Job requirement to he part of the team (strong communication skills a must)
Didn’t specifically address this
• Must be pro-active and contribute to workload (we seem to be achieving less these days)
Explained she shouldn’t wait to be given tasks, she should feel comfortable enough to hop in and just help. I believe she would rather spend time on the phone/computer, and have regularly observed this to be the case
• Concentration lapses towards the latter part of the day
Didn’t address this — seemed a bit trivial — and I guess it happens to us all.”
In the same note under the heading “Outcomes” the following appears:-
“• What role do you see yourself in?
Tina definitely sees herself in her old job. I’ve agreed (email 21/4) that Tina’s daily duties will include
Updating rosters in SAP
Updating rosters on boards
Collecting all OT/amendment slips
Looking after all News/Caff requirements (amendments/bookings/shift changes/advising crew)”
Ms Oliver’s perception of the meeting appears to be encapsulated under the heading “Summary” where she records the following:
“This was an amicable discussion, and I intend to hold another meeting with Tina next week/fortnight to review the above. I think this approach might help Tina feel part of the team, too.”
During the course of her evidence Ms Oliver elaborated in significant detail about her concerns and analysed in minute detail work undertaken by the Applicant. The detailed analysis appeared to arise from what could only be described as an extremely brief period of return to work.
Ms Oliver explained the procedures and terminology used by the Respondent. She confirmed that the Applicant upon return to the workplace did not return to her old workstation. When asked why she stated, “I don’t actually recall specifically why not. But I suspect that it was probably because – we wanted to train her” (Transcript p.240).
Under cross-examination Ms Oliver was taken to that part of her affidavit where she talks about changes that occurred “during the three plus years”. It was then drawn to her attention that the Applicant was not away for “three plus years” but rather “2 year and 4 months”. When it was put to Ms Oliver that her evidence was an exaggeration she stated that it was “my belief”.
During the course of cross-examination Ms Oliver was asked questions about conversations with the Applicant prior to her return to work.
The following evidence was given,
“That is not what I am asking. I accept that it may not have been appropriate to talk about it over the phone. She said she was willing to come in and talk about it. Do you accept that?‑‑‑She may have. I don't recall that.
So isn't it really a question of if she was willing to come in and speak about changes, why did you not think that was appropriate?‑‑‑I didn't think it was necessary and I didn't want to do it over the phone.
You have said that you didn't want over the phone?‑‑‑That is right. And I didn't think it was necessary to ‑ ‑ ‑
It is quite different to what we are talking about?‑‑‑‑ ‑ ‑ discuss what she was - her work that she was coming back to prior before her return date.
Did you ‑ ‑ ‑ ?‑‑‑I wouldn't normally do that with people who have been on leave. We would sit down and talk about it the day they returned.
Okay. So on the day that Ms Ilian returned, you didn't have a discussion with her on that day?‑‑‑I believe I did.
Ms Ilian's evidence is that she didn't discuss anything with you on that day. In fact, I think her evidence was ‑ ‑ ‑ ?‑‑‑What, we didn't speak at all?
‑ ‑ ‑ that she had an email from you saying that you were sorry that you weren't able to meet with her on that day. Would that be correct?‑‑‑I was at work that day. I don't know why I wouldn't have spoken with her that day.
You don't specifically recall speaking with her that day?‑‑‑I wouldn't have ignored her, if that is your inference.
No. I am talking about a discussion about her return to work. Did you speak with her about her return to work?‑‑‑I am sure I would have. I don't recall.
You don't have a specific recollection of speaking with her about her return to work on her first day?‑‑‑No, I don't.”
(Transcript p.249 lines 43-45 and p.250 lines 1-31)
Ms Oliver otherwise gave further evidence under cross-examination about the SAP training which was largely consistent with evidence given by other witnesses. During the course of cross-examination some doubt arose as to Ms Oliver’s belief as to whether she had or had not given to the Applicant a work plan at the meeting on 21 April 2004. Reference was made to evidence she had given in other proceedings before the Administrative Appeals Tribunal though it is not necessary to refer in detail to that evidence save to note that in her affidavit she adopted a statement prepared for the purpose of those proceedings.
It is perhaps unfortunate that a great deal of the content of that statement related more to those proceedings than the current human rights claim. Nevertheless an extract from Ms Oliver’s evidence before the Administrative Appeals Tribunal on 9 November 2005 (Exhibit A18) reveals the following:-
“It may have been developed in Excel but what was going to go into this document, if it wasn't prepared that night, I can't recall whether it was, actually now I think about it, or whether it wasn't. But the contents of what is in that document was discussed with Ms Ilian at that meeting.”
(Transcript p.269 lines 31-34
In answer to questions from the Court Ms Oliver confirmed that she prepared the typed notes of the meeting of 21 April 2004 from hand written notes which she described as being “just pointers”.
She indicated that she had not kept the hand written notes.
The assessment of concerns was then addressed in the following terms:-
“So this is an assessment of concerns within three months of the return to work of this applicant who has been absent for two periods of maternity leave, given birth to two children and you've gone through these items with her after work. Is that the way it should be interpreted?‑‑‑This is the assessment for someone who has been out of the workplace for a considerable amount of time.
And prior to this meeting had you given her any advance warning of these concerns?‑‑‑The - I hadn't. That's what this meeting was about. The concerns - I've, I felt that I needed to allow Tina some time to settle in. I mean, I wasn't going to start raising concerns the day after or the week after or two weeks after. I tried to let her settle in. Janet had - Preston had been going through some earlier errors that Tina had made. This is all part of - part of our system.”
(Transcript p.283 lines 36-48)
Upon further questions from the Court Ms Oliver indicated some of the bullet points on the document had been prepared before the meeting and were not addressed at the meeting with some comments inserted into the document by Ms Oliver after the meeting.
Joyce Frederika Barrett
Ms Barrett describes herself as a Learning Support Officer employed by the Respondent. She adopted an affidavit sworn by her on
5 October 2005 which referred to SAP training wherein she confirmed that the Applicant had attended a course on 11 July 2003 for 3 hours and another on 6 August 2001 for 4 hours.
John Stephen O’Brien
Mr O’Brien adopted an affidavit sworn by him on 3 October 2005.
Mr O’Brien confirmed that he is the Manager of the Respondent’s Production Resources Department.
Mr O’Brien set out in some detail the structure of the department and the procedures in relation to reclassification and the introduction of the SAP system together with the development of the Applicant’s job plan. He specifically deposed in relation to the Applicant’s request for her position to be set at Band 5 level the following:-
“30. The Applicant’s pregnancy or her sex was not a reason in the delay in the development of the Applicant’s Job Plan, or my decision to set her band at Level 4 rather than Level 5. I have refused to agree to Band Levels that were proposed by male employees for their Job Plans.”
He otherwise confirmed that upon making his decision the Applicant did not otherwise pursue the matter any further through her union or in accordance with a dispute settlement procedure.
He verified the leave of the Applicant. He adopted a witness statement he had made before the Administrative Appeals Tribunal wherein he specifically denied saying to the Applicant at a meeting on 21 January 2004 that “your job is gone and we have to find you some alternative duties”.
In his affidavit he referred to the reason why the Applicant did not resume all her duties upon return to the workplace and made reference to the introduction of the SAP system which had commenced prior to the Applicant leaving in September 2001 and the need for the Applicant to receive training in that system before resuming her former duties. He claimed that he thought the training would take about “3 months based on the fact that it had taken Ms Janet Preston about 6-7 weeks to familiarise herself with the system when she first started filling in for the Applicant” (paragraph 51 of Exhibit R9).
In his affidavit whilst asserting that he did not say the Applicant’s job “wasn’t there anymore” he went on to say in paragraph 54 that, “Although I might have said something like ‘the job had changed so much that it isn’t the same job’ as when the Applicant had gone on leave”.
Mr O’Brien otherwise referred to the performance appraisal of the Applicant after her return to the workplace.
For reasons which will become apparent it is not necessary to recite in detail the evidence in relation to the job plan given by Mr O’Brien.
He elaborated on this material in considerable detail during the course of his evidence along with the performance appraisal of the Applicant.
Under cross-examination he referred to what he described as a combination of different leave taken by the Applicant. He agreed that a job plan is developed before the commencement of a cycle but otherwise reasserted that other staff’s job plans had been delayed.
He denied the Applicant’s allegations in relation to the meeting on
21 January 2004 and reasserted in cross-examination that it was always his intention the Applicant would return to her position as Production Resources Coordinator (Transcript p.316).
Whilst not specifically referring to any conversation where he told the Applicant she would return to the position of Production Resources Coordinator he stated in cross-examination in relation to the meeting of 21 January 2004 the following:-
“At that meeting that I held with her on that day when she first came back I told her she was being retrained to resume her duties. That is the same thing surely?”
(Transcript p.316)
When further questioned about the communication of his intention to return the Applicant to her position of Production Resources Coordinator the following exchange occurred –
“You don't think it needed to be stated?‑‑‑Well, it apparently is now, but at the time it didn't appear to be, yes.
So is your evidence that you didn't tell her because you didn't think it needed to be stated?‑‑‑No, I told her she was being retrained to resume her duties, that is the same thing surely?
So did you say that to Ms Ilian on 21 January 2004, or not?‑‑‑Yes, absolutely, yes.
Okay, well, my question then is why have you not indicated that anywhere in paragraphs 40, 41 and 42?‑‑‑It is purely an oversight, it is just a presumption that we had discussed that.”
(Transcript p.316 lines 36-46)
He agreed in cross-examination that the normal expectation of the Respondent is that if a person returns from leave then that person would resume the same position (Transcript p.317). He claimed the Applicant did in fact resume her position. The following exchange then occurred,
“Now, at this meeting - I withdraw that. The application - so the expectation ordinarily would be to resume your duties. In this case Ms Ilian was given a different desk, or workstation. You agree with that?‑‑‑Yes.
In this case when Ms Ilian returned to work there was another person performing the role of Production Resources Coordinator?‑‑‑Yes.
And that was Janet Preston?‑‑‑Yes.
Her title was Production Resources Coordinator?‑‑‑Yes, acting, she was on a fixed term basis.
And prior to Ms Ilian returning to work it had been decided that she would be doing duties in Tech Services, the admin support position, that part-time admin support position?‑‑‑As well, yes.
Do you say that all of that stacks up with an expectation that one would return - would that vary, or have a bearing on the expectation that you would return to your position?‑‑‑She was given the information on the opening day that she was returning - she was being retrained to resume her duties. She was told that we had picked up some additional administrative support.
I explained it to her at her meeting. There should have been no lack of clarity about that.”
(Transcript p.318 lines 1-23)
During cross-examination Mr O’Brien was referred to a minute of a meeting held on 13 January 2004 where reference was made to the Applicant and “her duties are still to be determined”. He responded, “That doesn’t mean anything other than which duties she will pick up first and be able to run with, because clearly it is the training that is going to decide what she will be able to pick up first” (Transcript p.319).
He confirmed that Ms Preston was on a fixed term contract due to expire at the end of the financial year and noted that the Applicant was due to return in January of that year. He claimed to have told
Ms Preston however that she would not have an ongoing role and that he was trying to find alternative work for her. He took issue with the evidence of Ms Elder in relation to the Applicant’s position and statements allegedly made by him. He agreed that at the time when the Applicant recommenced work it was not entirely clear to him how long she would be working in the Technical Services role and claimed that Ms Preston was not providing Technical Services support because both she and the Applicant were not “up to speed” on the SAP.
He confirmed the Technical Services administrative support role was a different role though argued similar to the functions of the Applicant’s position as Production Resources Coordinator.
Mr O’Brien was asked questions about Janet Pearce to whom the Applicant had alleged she made requests for her old job back.
He agreed that he had not spoken to Ms Pearce even though she is still employed by the Respondent and was unable to say whether she had provided a statement to the Respondent’s lawyers (Transcript p.327). The following exchange then occurred:-
“Mr O'Brien, I put to you that if what you're saying about what transpired at the meeting on 21 January 2004 is correct, there would be no need for Ms Ilian to go to Janet Pearce?‑‑‑I don't know what she went to see Janet Pearce about. If she had listened to what I had said, there shouldn't have been a reason.”
(Transcript p.328 lines 19-23)
Reasoning and Findings
Job Plan/Performance Management
In relation to this issue I accept the submissions of the Respondent that the development of the job plan for the Applicant and the dispute over her reclassification were matters unrelated to maternity leave and the pregnancy.
It is clear from an examination of the chronology that the issue in dispute between the parties concerning the appropriate classification of the Applicant had arisen prior to the date upon which notice was given by the Applicant of her first pregnancy.
I am further satisfied that accept the evidence of Mr O’Brien that the consideration of the job plan, albeit unsatisfactorily delayed, was not delayed specifically for this Applicant but rather she was part of an overall delay in the processing of job plans for most of the staff of the Respondent. Regrettable and undesirable though that may be in the circumstances, it is not sufficient to provide any or any adequate basis upon which the Court can conclude that in this instance the consideration of the job plan issue for the Applicant could be regarded as related to any claim of unlawful discrimination.
Likewise in my view the performance management process whilst to some extent impeded as a direct result of the Applicant’s absence was not delayed or adversely affected as a direct consequence of the Applicant commencing maternity leave.
Some care should be taken to ensure that redress sought by an Applicant in relation to what she regards as an unsatisfactory classification should not be permitted to form part of a human rights claim alleging unlawful discrimination unless it can be established that there is a connection between that complaint and a provision of the relevant human rights legislation.
In this instance I accept the submissions of the Respondent that the appropriate question to consider is whether the Applicant was subjected to less favourable treatment then that of a comparator in respect of the job plan. In this instance the comparator would also need to have been subjected to the same delay in the consideration of the job plan and accordingly I am unable to find that the Applicant has been treated less favourably. In relation to this part of the claim I am not satisfied that the Applicant’s pregnancy was a relevant factor at all in relation to the alleged failure to deal with her job plan.
It is relevant to note that s.7(1) of the SDA clearly required a causative link between the alleged less favourable treatment and pregnancy. As I have indicated I am not satisfied having regard to the chronology of the events that the treatment, albeit unsatisfactory of the Applicant by the Respondent in relation to her job plan was in any way connected to her pregnancy and taking of maternity leave.
Essentially I agree with the Respondent’s submissions that in this instance there is no evidence that the development of the Applicant’s job plan was delayed any more than that of the comparator. Despite the development of a job plan between the Applicant and Ms Holden, it is clear in my view on the evidence that it was well known that
Mr O’Brien had the ultimate say in determining the Applicant’s appropriate classification merely because the Applicant is not content with the decision of Mr O’Brien or his assessment that the position was not appropriate for a Band Level 5 classification. Mr O’Brien appropriately conceded that it was desirable to complete the assessment before leave commences for a staff member and that when the Applicant returned from maternity leave her performance assessment against the job plan developed in 2001 was clearly overdue. However, that does not lead to the conclusion that failing to prioritise the assessment and job plan for the Applicant was related to her maternity leave and/or pregnancy rather than simply related to the fact that she was on leave which as with any other comparator would make the assessment less urgent. A common factor resulting in lower priority would seem to be the existence of leave for a staff member rather than the type of leave. I am not prepared to find that Mr O’Brien in relation to this issue engaged in conduct which in any way could be related as constituting unlawful discrimination as alleged. I otherwise accept his evidence in relation to this issue.
Failure to restore Applicant to her former position
In my view this part of the claim is most significant. I accept as submitted by the Applicant that a denial of a right to return to an employee’s substantive position clearly constitutes a detriment for the purpose of equal opportunity legislation (see Frost v WA Police Service [2005] WASAT 150 at 981).
In relation to this issue I accept the evidence of the Applicant which to some extent was corroborated by the evidence of Ms Elder whose evidence in relation to the statement of Mr O’Brien I accept. I accept that Mr O’Brien said something like, “Her job’s not here any more” which is consistent with the Applicant’s claim that upon arriving at work on 21 January 2004 Mr O’Brien told her “Your job is gone” and “title is gone” and ‘we have to find you some alternative duties”.
To some extent that version of events which I accept from the Applicant and Ms Elder is also consistent with the conduct of
Mr O’Brien who although insisting that the position had not been taken away from the Applicant, agreed that he had not specifically conveyed that information to the Applicant and had not made any arrangements to relocate Ms Preston whose contract was to continue until the end of the financial year.
The Applicant further had her perception confirmed in relation to her position when she returned to work to find, for reasons which were not adequately explained in my view, her workstation had been shifted to a position adjacent to Ms Preston who was standing in for the Applicant. The supervisory role of Ms Preston and the Applicant together with inconveniences established in relation to a filing cabinet would have led the Applicant to reasonably form the view that what she had been told by Mr O’Brien was correct.
When the Applicant was then allocated other duties and when a plan of the work area referred to her designation as “Admin Assist” rather than “Resource Coord” then that in my view would further support the conclusion that the evidence of the Applicant and Ms Elder in relation to the comments of Mr O’Brien are correct.
The failure to communicate clearly and accurately to the Applicant the view now apparently held by the Respondent that her position remained is sufficient evidence that in fact that was not the view of the Respondent.
In addition, I am satisfied that the catalogue of concerns listed by
Ms Oliver in her type written memo which in part was prepared after a meeting with the Applicant was an endeavour to demonstrate lack of performance by the Applicant and was not consistent with a desire or intention that the Applicant should return to her original duties.
In my view where a staff member returns from extended leave then consistent with the evidence of both the Applicant and Ms Elder it would be usual practice for that person to return to the previous position. Where the person has, as in this case, taken what I regard to be substantially maternity leave then consistent with the spirit and intent of Part VIA of the Workplace Relations Act 1996 (WRA) found in clause 12 of Schedule 14 the employer must employ the employee in a position she held immediately before she began maternity leave. Whilst it may be accepted that some of the duties required of the Applicant upon her return from maternity leave were similar to those duties she performed in her position as Production Resources Coordinator, the performance of those similar duties does not of itself constitute a return to the former position.
Although I have referred to the Workplace Relations Act it should not be thought that that legislation necessarily determines the outcome of this application relying as it does on a claim of unlawful discrimination. Nevertheless it is an indicator of the intent and purpose of provisions relating to maternity leave which in my view clearly indicates that the person taking maternity leave should not suffer a detriment upon return.
The fact that the Applicant in this instance has given birth to two children requiring significant absence and the use of a combination of leave including maternity leave does not detract from the fundamental principles and obligations employers have towards pregnant women who seek leave, which as in this instance I am satisfied is primarily attributable to her pregnancies and birth of the two children. I note that in this instance the Applicant has referred to the Maternity Leave (Commonwealth Employees) Act 1973 which incorporates the minimum conditions set out in the WRA. Further, it is noted that the 2003 Agreement which came into force on 13 March 2003 by clause 44 set out earlier in this judgment incorporates the entitlements under the Maternity Leave (Commonwealth Employees) Act 1973 and I am satisfied that it governed the Applicant’s entitlements upon her return from the second period of maternity leave. I accept as submitted by the Applicant that the object of the legislative provisions is to eliminate disadvantage to employees who take maternity leave. I further accept that whilst the Court is not concerned to determine whether there has been a breach of the minimum conditions, it does at least put into context the significance of the complaint of discrimination in the present application.
I find as matter of fact that the Applicant was either prevented or precluded from returning to the position of Production Resources Coordinator and up until her last day at work did not resume that position. It was indeed unfortunate that she was treated in what can only be described as a somewhat insensitive manner by unnecessarily relocating her next to the person who had been employed on a temporary basis in her place and then having been required to be supervised closely in the manner the Applicant describes, which in part involves, as indicated by the Applicant, the performance of what
I accept to be a variety of menial tasks.
I do not accept the excuse offered by witnesses for the Respondent and in particular Mr O’Brien that the Applicant could not be restored to her former position due to the requirement for training. Initial refresher training could have been provided and then further support given to the Applicant to ensure that she was able to adequately perform the tasks required of her as a Production Resources Coordinator. There is no evidence before that any significant attempt was made over a three month period to ensure that the Applicant was returned to her former position. That in my view constitutes a significant detriment.
I found the evidence of Ms Oliver to be less than helpful in relation to the significant issues before the Court. Her notes in my view clearly indicate a dissatisfaction on the part of the Applicant and yet she produced what I can only conclude to be a somewhat sanitised summary of that meeting. To present a staff member with a catalogue of complaints and then describe the outcome as being “amicable” in my view cannot possibly resemble the reality of the circumstances which are more accurately recorded in the Applicant’s evidence.
As indicated earlier, I am satisfied the Applicant was told at her meeting on return with Mr O’Brien that her job had gone, her title had gone and that other duties would need to be identified. On the evidence before me it is clear that some effort was made to provide other duties but that those efforts could only be described as an ad hoc approach to providing suitable tasks for the Applicant and not surprisingly she reacted adversely to these proposals. I accept that she complained to Ms Pearce in the manner she described and note that the failure of the Respondent to call Ms Pearce should lead to a conclusion that that evidence would not have assisted the Respondent.
I am satisfied that the failure to restore the Applicant to the position of Production Resources Coordinator clearly amounted to a detriment.
Although I am not prepared to find that the delay in finalising the job plan was of itself related to taking maternity leave, it is clear that the failure to restore the Applicant to the position of Production Resources Coordinator further impeded the progress of her performance assessment and finalisation of the job plan thereby creating a detriment arising out of the failure to restore her to her former position. Further detriment arose I accept as submitted by the Applicant in the creation of confusion in the mind of the Applicant as to her role and duties and she was exposed to what I regard as intrusive supervision by
Ms Preston who ironically became, I accept, in part one of the supervisors of the Applicant. Hence, she returned to work to find a temporary staff member still placed at the Applicant’s former workstation, giving the Applicant directions and requiring the Applicant to perform ad hoc duties. Hence, the Applicant’s perception of a demotion was well founded particularly having regard to the duties she was required to perform and her designation and placement in the workplace.
I am further satisfied that despite the Applicant’s attempts to discuss arrangements for her return to work there was no plan in place to accommodate the transition from maternity to full time duties. Whilst Mr O’Brien may have felt that he satisfactorily communicated to the Applicant her correct standing I am satisfied on the evidence recited earlier in this judgment that even on Mr O’Brien’s own evidence he did not satisfactorily communicate what he claimed to be the reality of the situation, that is the decision by the Respondent to return the Applicant to her former position. In fact as indicated both the words uttered by him at that meeting and in the presence of Ms Elder combined with the conduct of the Respondent and its officers reasonably led the Applicant to draw an alternative and correct conclusion that she was not to be returned to the position she held prior to commencing maternity leave.
Lest there be any doubt I accept the submission made for and on behalf of the Applicant that the leave taken by the Applicant ought properly be characterised as maternity leave for the purposes of the SDA.
As indicated earlier despite the fact that there are other forms of leave including long service and recreation leave they were taken along with some sick leave in the context of pregnancy and confinement over a period of approximately 2 years and 4 months during which time the Applicant gave birth to two children, the first on 5 October 2001 and the second on 28 February 2003. It would be unduly technical to characterise the total absence as anything other than relating to the two pregnancies and births.
In my view the facts and circumstances arising from the findings that the Respondent failed to restore the Applicant to her former position are sufficient to constitute unlawful discrimination for the purposes of s.7 of the SDA. I accept that the Applicant was treated less favourably than a comparator on the ground of her pregnancy. For the present purposes I accept as submitted by the Applicant that the selection of an appropriate comparator is a matter for the Court and depends upon the circumstances of the case (see Cocks Macnish & Anor v Biundo [2004] WASCA 194 at [63]). It is noted that in Thomson Allsop J suggested possible comparators according to the Applicant’s submissions he had remained at work but had not taken parental leave or a person who had taken extended leave with the consent of the employer wanted to return or a person who had taken extended leave and who had an entitlement to return equivalent to the parental leave entitlements.
It was submitted by the Applicant that she need not adduce specific evidence of a comparator or how a Respondent would have treated him or her (see Bear). It was argued that in the absence of evidence by the Respondent that they would treat a person in a similar position and with similar experience no differently to the alleged treatment of the Applicant the Court may infer that the treatment was discriminator (see Dubois-Hammond). I agree with those submissions.
It should be noted in the present case that the Applicant and also
Ms Elder and Ms Figliomeni had identified other employees who had been absent from the workplace for various reasons though not for the period experienced by the Applicant. They had all been able to return to their previous position.
I further accept as submitted by the Applicant that in finding an appropriate hypothetical comparator the Court should have regard to those characteristics including a long standing employee of the Respondent with the experience, performance record and terms and conditions of the Applicant. The person does not necessarily have to take the same extended period of leave of the Applicant but simply an extended period of leave and should include a person who then has returned to the original position notwithstanding the introduction of operational changes.
In my view the reference to operational change and in particular the introduction of the SAP software program, which I note had been introduced before the commencement of the Applicant’s maternity leave, does not of itself provide any or any proper basis upon which the Applicant’s return to work to duties other than her former duties can be distinguished from the comparators. It is not necessary for the Applicant to provide precise direct evidence of a comparator absent for the same or similar period to that of the Applicant. It is sufficient for the Court to find as it has found that the Respondent’s usual practice for employees who have taken leave of an extended nature is that they return to their previous duties. I do not accept that there are any significant operational changes apart from the introduction of the SAP software which required deviation from that course.
The SAP program albeit perhaps difficult simply required initial refresher training with ongoing assistance via helpdesk or other appropriate support mechanism. I am satisfied as submitted by the Applicant that upon the evidence that it is appropriate to find that the Respondent would not have treated another comparable employee without the characteristic of pregnancy in the way the Applicant was treated and hence the Respondent in my view has contravened s.7(1)(b) of the SDA.
Conclusion
In my view therefore the Applicant in relation to the failure of the Respondent to restore her to her former position has unlawfully discriminated against the Applicant in treating the Applicant less favourably than if the circumstances were the same or not materially different in which the Respondent treated or would have treated a person who had not taken maternity leave. There has been a detriment of the kind described earlier in this judgment and treatment which I regard as less favourable treatment. The reason for the less favourable treatment was the Applicant’s pregnancy and the taking of maternity leave. As indicated in this judgment I am satisfied that the taking of maternity leave is a characteristic which appertains generally to women who are pregnant.
It is unfortunate that a long standing staff member who as a result of two pregnancies is required to take extended leave which properly can be characterised as maternity leave of a period of just 2 years and
4 months should find herself returning to work and treated in this manner contrary to the SDA.
In this application it is clear that there has been an extended absence from employment by the Applicant. However, that would seem to be inevitable where the Applicant has given birth to two children over a short period of time. The manner in which employers treat employees who take maternity leave and/or other leave associated with pregnancy and in this instance the birth of two children should not alter simply because, as in this instance, the absence has been somewhat longer than usual maternity leave for the birth of one child. I do not see any reason why a woman should be prejudiced by virtue of the fact that she has been absent due to the birth of two children. I am not aware of any authorities which suggest that women in that situation should not have the same entitlements as other women who may only give birth to one child and then return to work for a significant period of time before giving birth to other children.
Having found that the Respondent has contravened s.7 of the SDA it is not necessary for the Court to further consider any claim pursuant to s.5 of the SDA as indicated earlier in this judgment
I shall consider submissions from Counsel in relation to the orders made including directions for the further hearing of any loss or damage which is yet to be determined by the Court. It may be appropriate to consider referring the parties to mediation to resolve that issue rather than incur further expense associated with assessing loss and damage.
I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 17 October 2006
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