Iliff v Sterling Commerce (Australia) Pty Ltd
[2007] FMCA 1960
•3 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ILIFF v STERLING COMMERCE (AUSTRALIA) PTY LTD | [2007] FMCA 1960 |
| HUMAN RIGHTS – INDUSTRIAL LAW – Alleged discrimination on grounds of maternity leave – right to return to work provisions in WR Act – redundancy payment and entitlements. |
| Sex Discrimination Act 1984 Workplace Relations Act 1996 Disability Discrimination Act 1992 |
| Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 Purvis v State of New South Wales (2003) 217 CLR 92 Hyhonie Holdings Pty Ltd v Leroy (2003) NSWSC 624 Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FLR 449 Finance Sector Union v Commonwealth Bank of Australia [2005] 224 ALR 467 Automated Fire Sprinklers v Watson (1946) 72 CLR 435 Byrne v Frew (1995) 185 CLR 410 Riverwood International Australia Pty Ltd v McCormick [2000] 177 ALR 193 |
| Applicant: | BELINDA ILIFF |
| Respondent: | STERLING COMMERCE (AUSTRALIA) PTY LTD |
| File number: | MLG 833 of 2006 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 23, 24, 30 & 31 August; 21 September 2007 & 12 November 2007 |
| Date of last submission: | 12 November 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 3 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Millar |
| Solicitors for the Applicant: | Foster Harris Lawyers |
| Counsel for the Respondent: | Mr T. Jacobs |
| Solicitors for the Respondent: | Baker & McKenzie |
THE COURT DECLARES AND ORDERS:
DECLARES:
That the Respondent has contravened Clause 14(2) of Schedule A of the Workplace Relations Act 1996 for the reasons set out in these Reasons for Judgment.
ORDERS:
That a penalty of $33,000.00 be imposed on the Respondent for the above contravention, and that the said sum be paid to the Applicant.
That the Respondent additionally pay the Applicant $22,211.54 less tax of $2,119.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 833 of 2006
| BELINDA ILIFF |
Applicant
And
| STERLING COMMERCE (AUSTRALIA) PTY LTD |
Respondent
REASONS FOR JUDGMENT
In mid‑April 2004 the Applicant Belinda Iliff told Michael Vulcan, her superior at work, that she was pregnant. She ultimately went on maternity leave on 10 December 2004.
Before she left, Ms Iliff had told Mr Vulcan that she proposed to return to work initially on 4 April 2005 on a part-time basis, leading eventually to full‑time recommencement of work in December 2005.
It was also arranged that Ms Paula Matthews would be retained on a contract basis to do the work that Ms Iliff would otherwise have done.
When Ms Iliff sought to return in March and April 2005 Mr Vulcan told her that her position no longer existed and that she was to be made redundant on a date to be advised.
It is common cause that Ms Iliff was not allowed to recommence work. The Respondent said, and continues to say, that her position had disappeared and a new position had been created. Ms Iliff says that she should have been re‑employed in her original position or given the new position.
Leaving aside disputes as to the facts, which I will have to determine, the issues that arise in this case are:
a)
whether the conduct of the Respondent in not allowing Ms Iliff to re‑start work breached the Sex Discrimination Act 1984
(“the SDA”);
b)whether the Respondent's conduct in not allowing Ms Iliff to return to work breached the obligations imposed on the Respondent by the right to return to work provisions contained in the Workplace Relations Act 1996 ("the WR Act") ;
c)whether Ms Iliff has ever been dismissed and whether in any event she should be paid on an ongoing basis up until the present;
d)if Ms Iliff has been dismissed, she claims damages for breach of contract and payment of a redundancy payment.
The facts
Ms Iliff started to work for the Respondent, which is a software and solutions company (see Mr Vulcan’s affidavit at paragraph 4), in March 2002. She had previously been employed at Telstra in a variety of positions from 1994 to that time. According to her, she had been employed in the marketing industry since 1998. From an examination of her curriculum vitae (exhibit R2) it is plain that at least from 1998 onwards Ms Iliff started to perform at least some duties that involved marketing. The extent of these duties expanded during her time with Telstra.
Ms Iliff had obtained a Bachelor of Arts from the University of Melbourne in 1997 and a Bachelor of Business (Marketing) from RMIT in 2002.
To begin with, the Applicant was employed on a part‑time basis at a salary of about $50,000.00 per annum. Although the Applicant in her affidavit described herself as a marketing assistant, I am satisfied, from the evidence of Ms Everett and the Respondent's evidence generally, that Ms Iliff was performing duties of essentially a subordinate clerical nature together with some incipient marketing initiatives.
It should be noted that although the Respondent had previously employed a person whose position was in marketing, at the time of the appointment of Ms Iliff they had no-one in that capacity. Indeed, for an offshoot of a multinational and sophisticated worldwide company, one cannot avoid the impression that its marketing initiatives to that time had been underdeveloped and inept.
I accept that in April 2003 Ms Iliff was promoted to the position of Marketing Manager. The letter that appointed her is exhibit BI-1 to her affidavit. It confirmed that Ms Iliff would commence on
14 April 2003, that the employment was terminable on four weeks' notice, and an annexed job description described her role as Marketing Specialist - Australia.
The job description provides a series of aims and functions. The minimum qualifications described in the job description (which is dated 24 October 2003) are:
“Bachelor degree in Marketing / Business / Communications / Computer Science or related field, or equivalent education and experience.”
and minimum experience of
“at least six years in a corporate environment, 3 of which were in a marketing capacity - preferably B2B marketing.”
The salary for the new position was $80,000.00, a substantial increase from the prior position, and one which I have no doubt reflected satisfaction with Ms Iliff's performance of her duties up to that point.
Ms Iliff produced a sales plan for the Respondent in February 2004 (exhibit MV-6), this being the first such document prepared, as far as the evidence goes, for the Respondent. This was clearly regarded as satisfactory, because on 1 April 2004 the Respondent increased
Ms Iliff's pay to a package of $86,400.00 composed of a base salary of $82,000.00 with a target incentive of $4,400.00. She was, in addition, entitled to superannuation at the rate of 9 per cent of her base salary
(i.e. $7,380.00 per annum).
As I have already said, it is agreed that in about mid 2004 Ms Iliff told Michael Vulcan that she was pregnant. On 15 September 2004 Ms Iliff met Mr Vulcan in his office and discussed her proposed maternity leave arrangements.
Mr Vulcan was generally supportive of Ms Iliff going on maternity leave and even undertook to bring certain items back from the United States for her in this regard.
Ms Iliff encapsulated the discussion in an email (exhibit BI-4 to her affidavit) dated 15 September 2004. The essential points that emerged from the email, which I accept reflect the discussions that the pair had had earlier in the day, were that:
·a Marketing Coordinator would be employed to work four days per week on a six‑month contract basis from January to June 2005, in effect to replace Ms Iliff; and
·Ms Iliff proposed to return to work for a maximum of one to two days per week in April to June 2005, and
·then increasing so that by the end of December 2005 she would be back at work full-time.
Mr Vulcan replied to that email by email on 19 October 2004 (exhibit BI-5). It contained in principle approval of Ms Iliff's proposal, although Mr Vulcan's approval was qualified; he said he would be happy to accommodate her requests wherever he reasonably could and went on to say:
“However, I will need to continue to evaluate this proposed arrangement against the ongoing and changing needs of the business. For example, as you are aware, in 2005 we will have a new APO Marketing Director commence with us. In those circumstances, I cannot presently anticipate what, if any, changes will occur in relation to the structure of our marketing operations. Accordingly I would ask that you contact me at least four weeks before you intend to return to work, so that we can re‑evaluate the situation and discuss a suitable structure for your return to work at that time.”
The delay in reply might be slightly surprising but for two things. First of all, this was Mr Vulcan's first experience of maternity leave as an employer. Accordingly, it is more probable than otherwise that he was not particularly familiar with any legal obligations that maternity leave might involve.
Second, and this is once again perhaps slightly surprising with such a large and otherwise sophisticated global organisation, the Respondent has no human resource dedicated employees. Its invariable practice is to consult its lawyers, whether internal, such as Mr Soughan in Hong Kong, or Baker & McKenzie. A Mr Harris Reichman, who has some passing involvement in this proceeding, is no more than the paymaster.
Mr Vulcan took legal advice before his e-mail of 19 October 2004. (See P-10 30 August 2007). I have little difficulty in inferring that the qualified nature of Mr Vulcan's reply was based on legal advice he had received in the interim.
Ms Iliff responded to Mr Vulcan's email on 26 October 2004 [exhibit MV-8]. That reply purported, amongst other things, to assert that, if agreement could not be reached, Ms Iliff proposed to return to her work in exactly the same position and on the same hours as those she presently occupied. I have little doubt, from the slightly tendentious tone of the email, that Ms Iliff had already made herself aware of the relevant statutory provisions in relation to maternity leave, although I should say that I do not regard this as being a matter proper for criticism.
Mr Vulcan did not reply to that second email.
Before Ms Iliff went on maternity leave, she and Mr Vulcan interviewed Paula Matthews and it was agreed that Ms Matthews would commence work as a contractor, which she did in early December 2004 (see Mr Vulcan’s affidavit at paragraph 75).
Mr Vulcan's email had not lied when it asserted that change was in the wind. Towards the end of 2004 and at the beginning of 2005 a number of changes were under way. In particular, the Respondent had decided to branch out into the financial services industry, not just in Australia but throughout the entire Asia‑Pacific region. This region is referred to by the Respondent as APO.
This initiative arose, at least in part, out of the difficult financial situation in which the Respondent found itself. It seems, however, that the difficulties were more APO than Australia‑oriented. Australia had made its budget for the relevant financial year, ending on
31 December 2004, but APO overall had not. It seems reasonably clear that this situation caused concern and led to a decision by the Respondent to target the financial services industry as an area for its product.Ms Iliff was in fact initially involved in this exercise and indeed met Simon Lacey who was employed by the Respondent as an expert in that industry. Notwithstanding this, matters with Mr Lacey had not developed to any significant extent before Ms Iliff went on maternity leave on 10 December 2004.
Thereafter the parties heard nothing from one another until well after the birth of Ms Iliff's child on 9 January 2005.
In the interim much else had occurred. Paula Matthews was, on any view, a more highly‑qualified marketing person than Ms Iliff. The extent to which this was so is a matter of dispute. When one comes to her curriculum vitae, the disparities are not perhaps as great as clearly ultimately perceived to be by the relevant officers of the Respondent.
Ms Matthews' curriculum vitae shows that she completed a Bachelor of Science in 1991 at Monash University, followed by a Bachelor of Business, Marketing at Swinburne University in 1995. That was some seven years before Ms Iliff completed a similar degree.
Ms Matthews was employed from 1994 until 1999 by Hewlett Packard in what Ms Matthews rightly described as numerous roles. She commenced in quality assurance but plainly moved into marketing at a relatively early stage. It is fair to say that the curriculum vitae of
Ms Matthews does suggest a more well‑qualified and experienced person in marketing than does that of Ms Iliff. Nonetheless, and bearing in mind that hyperbole tends to find expression in curriculum vitae, these are, to an extent, matters of degree and emphasis.
One thing that does clearly stand out from Ms Matthews' curriculum vitae, however, is her experience with Vignette Corporation Pty Ltd between 1999 and 2002, which clearly involved extensive experience both in the finance sector and in the Asia‑Pacific region. It should be noted, however, that this was, as far as I can see, her first experience in this capacity and her success must have involved at least some period of training and familiarisation in these new fields.
According to Ms Matthews, she found it easy to perform Ms Iliff's work and did so comfortably within the time allotted to her. I accept that this was so, not least because of the contemporaneously-expressed enthusiasm for her performance from Mr Vulcan: “Paula is great, she does in one day what Belinda used to do in a week” (see affidavit of Albert Visscher at paragraph 77).
It was this perceived superiority on the part of Ms Matthews that gave rise to the controversy now before the Court.
Ms Matthews has deposed that from early in 2005 onwards she started to do work for Albert Visscher, who was a Marketing Manager based in Singapore and at that time employed by a Singaporean subsidiary of the global Sterling group.
By early February, Mr Visscher had been alerted to Ms Matthews
and had decided he wanted to employ her (see Visscher affidavit at paragraph 55, and exhibit AV-28). Mr Vulcan fully agreed (exhibit
MV-32).
It seems clear beyond any doubt that by February ‑ March of 2005 both Mr Vulcan and Mr Visscher very much wished to employ
Ms Matthews, not only in her capacity as a replacement for Ms Iliff but in a number of additional areas.
These additional areas arose out of the initiatives I have earlier described whereby the Respondent expanded its activities into the finance sector and on an APO‑wide basis.
I accept that this expansion took place in the ordinary course of business and would have occurred whether or not Ms Iliff went on maternity leave.
Nonetheless, the various changes that took place at this time do not seem to me to fully meet the description that the Respondent has sought to give them. The Respondent moved to incorporate what was said to be BDMs (Business Development Managers) on a vertically‑integrated basis. It described the reorganisation of its functions at this time as going functional.
What this meant in terms was that, whereas people in the organisation previously reported on a geographic basis - so that, for example, all of the Australian based employees reported to the Australian supremo - thenceforth they reported based upon the function they performed - so that, for example, all marketing people in the APO region reported to the marketing supremo.
From March 2005 onwards Mr Visscher was formally appointed to be the marketing head of APO, albeit that he plainly started work on the functions that that position involved prior to that date on an acting basis. Indeed it was in that capacity and for that reason that he wished to engage Ms Matthews.
I am comfortably satisfied on the evidence that if Ms Iliff had not gone on leave her employment would have continued, notwithstanding the changes which occurred.
It seems clear beyond doubt to me that Ms Iliff had done well in her job up to that time and that the only reason she subsequently fell out of favour, in the sense that the Respondents have subsequently sought to belittle her expertise and experience, was because Ms Matthews presented such a stark contrast.
Nonetheless, Ms Iliff was a very hardworking and enthusiastic employee who had, at least up to that point, been able to accommodate every activity of a marketing sort required of her by the Respondent. The Respondent sought to make much of the alleged simplicity of the tasks she had performed. This was referred to, with poorly‑concealed contempt, as marcom - in other words, marketing and commerce.
While it may be that Ms Iliff's prior activities had been relatively unsophisticated, turning on event management and the like, I have no doubt that I should accept her evidence that in substance she was performing marketing duties at at least a reasonable level of sophistication. The evidence of Ms Springs (P-5 24.08.2007) and
Mr Jennings (P-14 24.08.2006) suggests she was qualified to an extent that she could have been appointed to the new position that the Respondent says emerged.
Ms Iliff's formal qualifications were the same as those of
Ms Matthews. There was no disparity between them. Rather, Ms Iliff had less experience, both in terms of time as a marketing employee and in the scope of her activities.
Nonetheless, one particularly telling answer was given by
Ms Matthews. When pressed as to whether or not Ms Iliff could have undertaken the tasks that Ms Matthews undertook in relation to
Mr Lacey and the APO finance sector, she replied
[P-3 31 August 2007] "Because without the experience I would have had to effectively be learning on the job, and that would have cost Sterling money".
In reality, however, Ms Matthews must herself have learnt on the job when she was at Vignette, and/or at some prior point.
Axiomatically, it is not possible to get experience if you are not given the opportunity. I think it is more probable than otherwise that Ms Iliff would indeed have been able to learn whatever she needed to learn in order to perform the expanded duties that came into play as a result of the going functional decision made by the Respondent.
Ms Matthews had commenced work in December 2004, and the contract was due to be reviewed in April 2005.
By January 2005 the vertical integration/BDM process was well and truly under way (see exhibit MV-30) and by February 2005
Mr Visscher was well and truly embarked upon his road shows throughout the APO region (see exhibit MV-31).
Relevantly, a number of those road shows were to be run by Simon Lacey. Mr Vulcan and Mr Visscher wanted to give Mr Lacey appropriate support, and there seems no reason to doubt Mr Vulcan's assertion (paragraph 104 of his affidavit) that in late January/early February 2005 he discussed with Mr Visscher using Paula Matthews in this capacity.
No later than 7 February 2005 Mr Vulcan was emailing Mr Visscher about extending Ms Matthews' hours of work in that role, and it appears to have been agreed that she would perform an extra one to two days per week for a period of about three months. It should be noted, however, that the further engagement of Ms Matthews raised, even at an early stage, the question of Ms Iliff's employment.
On 25 February 2005, when Mr Visscher emailed Mr Vulcan with a query about Ms Matthews' rates and observed that "I am thinking of three months a couple of days a week," Mr Visscher went on to say in the email, "When is Belinda coming back?"
By the beginning of March 2005 Ms Matthews, who played her cards coolly and well at all times in all negotiations she entered into with the Respondent, had been engaged on a contract that would employ her until 7 June 2005.
I do not appear to have been provided with a response by Mr Vulcan to Mr Visscher's question as to when Belinda was coming back. The overwhelming impression I get is that the Respondent was faced with a pressing and present need in about February‑March 2005 for support for Mr Lacey. Ms Matthews was on board and was clearly very well regarded by Mr Vulcan, and, as a result of that admiration, Mr Visscher was keen to take her on board as well. Ms Iliff simply never entered into their thoughts at this time.
Ms Iliff of course had not just disappeared.
On 15 March 2005 Ms Iliff met Mr Vulcan at his office and told him she wanted to return to work four days per week rather than three days per week. Mr Vulcan told her there had been a restructure and the Marketing Manager position had changed reporting arrangements. He said that Mr Visscher would contact her with regard to her return‑to‑work arrangements.
The change in reporting arrangements was true. The announcement of the going functional decision took place in March 2005, and
Mr Visscher was confirmed as director of marketing APO at the end of that month.
There is some dispute between Mr Vulcan and Ms Iliff as to exactly what was said on 15 March 2005. The version contended for by
Mr Vulcan at paragraph 113 of his affidavit reads in a rather stilted way, to me. It is fair to say, however, that, on any view, Mr Vulcan told Ms Iliff there had been a restructure and that he or Mr Visscher would discuss further with her what the impact of that restructure would be at some future point.
It was actually on 15 March 2005 that the organisation announcement of going functional took place. Mr Vulcan cannot recall whether he had received that email before or after the meeting with Ms Iliff.
On 16 March 2005 Mr Vulcan sent Mr Visscher and Mr Soughan
an email recounting his discussions with Ms Iliff the day before (exhibit MV-39). I suspect that this is an accurate description of their discussion because it is so closely contemporaneous to the events
it describes. It is interesting that even at this early stage Mr Vulcan felt it necessary to copy the document to legal counsel. It seems clear
to me that Mr Vulcan must have had some understanding that the course of conduct upon which he was embarked might give rise
to legal difficulties.
The email confirms that it was a matter for Mr Visscher, after his forthcoming appointment, to discuss Ms Iliff's future with her.
It is clear from paragraphs 116 to 118 of Mr Vulcan's affidavit that after his meeting in mid‑March 2005 he paid no attention to Ms Iliff until the end of the month. On 30 March 2005 he sent another email to
Mr Visscher (exhibit MV-40). He indicated he needed to talk to
Mr Visscher, amongst other things, about Belinda and Paula. These were clearly interrelated issues in Mr Vulcan's mind.
Notwithstanding that Ms Iliff had expressed a perfectly understandable desire to return to work at the beginning of April 2005 the Respondent did not contact her until 26 April 2005. By that stage Mr Vulcan had clearly formed the view that he did not want Ms Iliff to return to work but wanted to keep Ms Matthews on instead. This was because he felt that she was better qualified, both in absolute terms and, more particularly, in terms of the role of supporting Mr Lacey in the financial services area of APO (see paragraphs 121‑122 of Mr Vulcan's affidavit).
Mr Vulcan was also restricted as to number of people he employed at that time. It appears that what is described as head count is strictly controlled from America. He could not employ two people to do what, in any event, he regarded as one person's work.
At some time in early April 2005 Mr Vulcan discussed this with
Mr Visscher and they agreed that Ms Matthews should be the person to be retained. Although Mr Vulcan has asserted at paragraph 126 of his affidavit that, "It was never a foregone conclusion that Paula would take on the more senior position that Albert and I had discussed," it was always a foregone conclusion that they would offer it to Ms Matthews and that they wanted her to take it.
As I have earlier indicated, Ms Matthews' correspondence at all times with the Respondent shows a certain sureness of touch. She managed to indicate to the Respondent on more than one occasion that she had many other demands on her time and other offers available to her. I see no reason to doubt that that was so. But, in any event, at all times
Mr Visscher and Mr Vulcan were under pressure to keep Ms Matthews.
On 20 April 2005 Ms Iliff sent an email to Mr Vulcan indicating that she intended to return to work one day per week beginning May or June 2005 (exhibit MV-41).
Mr Vulcan forwarded that email to Mr Visscher and Mr Soughan (exhibit MV-41). Once again it is clear from the terms of that email that Mr Vulcan had been under the impression that there were potential difficulties with Ms Iliff's return to work; and it is noteworthy once again that the further employment of Ms Matthews was seen by
Mr Vulcan as being directly interrelated with Ms Iliff's return.
Although one could read the email's two paragraphs as being disjunctive, it seems clear to me that Ms Iliff's indication that she wished to return one day per week in May or June and then four days per week from 18 July 2005 took off pressure on the Respondent and enabled it more actively to consider the further employment of
Ms Matthews, whose three‑month contract was due to end in June.
On 26 April 2005 Ms Iliff met Mr Vulcan again in his office.
Once again there is some element of dispute as to exactly what was said, but the different versions of the events put forward by the two persons present, in my view, reflect little more than their differing perceptions.
It is clear that Mr Vulcan told Ms Iliff that her position was to be made redundant under the proposed restructure. Mr Vulcan clearly told
Ms Iliff that there would be a new position. Mr Vulcan sent an email the same day to Mr Soughan and Mr Visscher and others (exhibit MV-43), which I accept is probably a reasonably accurate description of the meeting. He stated, amongst other things, that:
“The outcome was that Belinda would like a copy of the new position description along with information about how she would apply for such a position, along with information about the redundancy of her current position.”
I do not accept that Ms Iliff was not upset with the situation presented to her by Mr Vulcan (see Vulcan affidavit paragraph 130); there was no earthly reason for her not to be upset.
While Ms Iliff denies that redundancy was mentioned, it seems clear to me that it must have been mentioned at least. Nonetheless, it is clear from Ms Iliff's later email to Mr Vulcan that the certainty, as it were, of her redundancy did not impact upon Ms Iliff.
Mr Vulcan was too busy doing other things to be bothered about
Ms Iliff and did not get back to her. He did, however, have time to email Mr Visscher (MV-44) on 4 May 2005 asking Mr Visscher to let Ms Matthews know of his, Mr Visscher’s, intentions about further work because she was likely to accept a different role that it appears was open to her.
At about the same time, the Respondent was preparing a new job description for what was felt to be the new job.
On 17 May 2005 Ms Iliff sent Mr Vulcan a further email about her return to work (exhibit BI-6). It is of course possible that this was completely disingenuous and self‑serving, but I see no reason to conclude that it was. Ms Iliff’s evidence was sometimes wrong,
(for example in the controversy between her and Ms Everett as to when
Ms Iliff accessed her computer – as to which I accept Ms Everett’s inherently probable accounts) but I found her generally an impressive witness. She responded directly and cogently in cross-examination. She was a witness of truth.
In her e-mail Ms Iliff complained that she had heard nothing for three weeks about the proposed restructure. That was a correct assertion. She then went on to assert that she wanted to return to work under the original arrangement – i.e., one day per week to begin with, followed by four days per week from late July. She asked that
Mr Vulcan and/or Mr Visscher contact her.
Contact was swift. On 17 May 2005 Mr Vulcan wrote to Ms Iliff telling her that she was redundant. The letter stated that:
“It has been determined that the position of marketing specialist is no longer required and will be made redundant with effect from Friday, 3 June 2005.”
The letter went on to say that there were no other suitable roles for her, but referred to the new position of "Marketing Manager, Financial Services Solutions APO."
The letter invited her to apply for the role, albeit that it made it clear:
“I do not consider the role of Marketing Manager, Financial Services Solutions APO to be a suitable alternative position for your current role.”
The letter indicated that Ms Iliff would be paid a redundancy payment of $22,211.54 gross, less tax, but then went on to state:
“This offer is conditional upon you signing a release in terms suitable to Sterling Commerce which confirms that you have no further claims against Sterling Commerce and that you have returned all company property.”
The letter went on to request a further meeting.
This letter was, on any view, somewhat offensive. If Ms Iliff was indeed redundant, there was no reason why she should not be paid a redundancy payment.
On 18 May 2005 Ms Iliff responded to Mr Vulcan, seeking clarification. She asked whether the position or any other position in the new marketing structure was part‑time/job share eligible and asked for a breakdown of the proposed termination payment. The answer was that none of the positions were part‑time, and a breakdown was given of the proposed termination payment.
On 1 June 2005 Mr Vulcan wrote again to Ms Iliff and repeated that her position "is to be made redundant". The letter noted that Ms Iliff had not responded to requests for a meeting and went on to provide a final opportunity for her to meet with him. The letter went on:
“Unfortunately, if you elect not to take advantage of this opportunity, I will have no option but to formally advise you of the fact that your position has been made redundant and effect a termination. Obviously, if this decision is made, you will be paid appropriate termination payments and any statutory entitlements.”
It was that letter which led to the first letter dated 2 June 2005 to
Mr Vulcan from Ms Iliff's solicitors.
That letter set off a chain of correspondence in which
Ms Iliff articulated what is essentially the position she now advances in this Court. There was no direct contact between Ms Iliff and
Mr Vulcan after 1 June 2005.
Notwithstanding the assertions made by Mr Vulcan no termination payments were ever made to Ms Iliff and she was never formally notified that her employment had ceased. Indeed both parties, in the rather self‑serving correspondence that followed between the solicitors, asserted from time to time matters that would suggest that Ms Iliff's employment was still continuing. It plainly was not, save perhaps in a technical sense, because she never went back to do any further work for the Respondent.
It is plain, on any view, that Ms Iliff did not ever execute the release and her employment was not ended by the letter to her from Mr Vulcan of 17 May 2005, because she did not accept the conditions set out in it.
Ms Iliff did not apply for the new position. That was eminently reasonable, given that it had been made plain to her that she would not get it. Indeed, once the lawyers had been cleared away to an extent, the Respondent, which had gone on employing Ms Matthews in any event in the interim, entered into a formal contract with her as an employee. This took place in late August 2005 (exhibit PM-29), and she started as an employee on 1 September 2005 (affidavit of Ms Matthews – paragraph 70).
The new job description, to which I have referred, was created first by Mr Visscher. As late as 1 April 2005 an organisation chart was being issued by the Respondent (exhibit AV-16) in which, following the going functional decision, Ms Iliff was still shown as being in situ as the marketing specialist for Australia reporting directly to Mr Visscher. It was not therefore the restructuring per se that got rid of her position.
On 5 May 2005 Mr Visscher sent to Mr Vulcan a proposed Sterling Commerce job description for the position of Marketing Manager – Australia (exhibit MV-45). This had a number of differences from the job description earlier given to Ms Iliff. The minimum qualifications were a degree in marketing or seven to 10 years of related experience, both of which Ms Iliff possessed.
The job description also included the requirements in relation to the finance sector APO role that had already evolved.
When Mr Vulcan replied (exhibit MV-46) he said:
“Looks good…to make this more of a change to the existing do we need to make more of an emphasis including the title around this being a regional role and not just an Australian role…
I know you mention both.”
The Applicant submitted strongly that I should infer from this email that the Respondent was at this time actively seeking to dishonestly differentiate the new job description from that formerly undertaken by Ms Iliff. It was submitted that this was in effect a conspiracy to buttress the Respondent’s position in the event of forthcoming challenge by Ms Iliff.
The Respondent by way of contrast pointed to the changes in the job description and submitted that the document meant no more than it said and had an innocent explanation.
These are significant matters to which the principles applicable in Briginshaw & Briginshaw apply. Nonetheless, it is an assertion to be judged on the balance of probabilities.
I think that Mr Vulcan was consciously seeking to distinguish the new job description from Ms Iliff’s former one. While I accept that the new job description reflected a different set of tasks, that was in my opinion just part of the evolving role the position, which would have happened whether Ms Iliff went on maternity leave or not.
The use of the phrase:
“To make this more of a change to the existing” (emphasis added)
is telling. There was no need for the job description to be different from the previous one. It merely had to reflect the role on the ground.
I have already shown how the engagement of Ms Matthews was regarded as being closely interrelated with Ms Iliff’s return or otherwise. I have no doubt that while Mr Vulcan was seeking to ensure that the new job description accurately reflected what Ms Matthews was going to be doing, equally it was in his mind to differentiate the two job descriptions. This was because it is clear by this stage
to the Respondent that Ms Iliff was likely to take issue with what was happening to her.
This does not mean however that I am prepared to find that the change in the job duties was fabricated after the event. It was not a conspiracy in that sense.
As I hope I have made clear the real dynamic that underpinned everything that happened was that Ms Matthews came on board by chance at a time were her greater experience was particularly relevant to the tasks that the Respondent wanted carried out. I do not accept that the changes that took place in what the Respondent was doing
(i.e. relevantly the finance sector APO business) is some sort of ex post facto invention to justify Ms Matthews employment. Rather she was in place and well qualified to perform those tasks.
Nonetheless, the conduct of Mr Vulcan in seeking to emphasise the difference between the two roles was in my view on the evidence clearly designed to buttress the Respondent’s position in any claim that might eventuate and does him and Mr Visscher (who responded uncritically to Mr Vulcan’s e-mail) no credit.
I think that the email from Mr Vulcan to Mr Visscher in which he suggests that the job description be changed to make it more different from the old one means what it says. It was not just an endeavour to accurately reflect the new role. It was also a conscious effort on the part of Mr Vulcan to differentiate the role being performed. The fact that the role was clearly somewhat different, at least on one view, is not inconsistent with that intention.
From the constant copying of documents to Mr Soughan and from the evidence given by Mr Vulcan about the way in which the company deals with personnel issues, it is clear that the Respondent regarded its treatment of Ms Iliff and its interrelated dealings with
Ms Matthews as being likely to give rise to legal difficulty.
The suggestion of changes to the job description was, at least in part, activated by a desire to produce a document that would sustain the Respondent against legal challenge, which I think Mr Vulcan realised might be forthcoming.
Discrimination on the grounds of maternity leave or parenthood
I find that if Ms Iliff had not gone on maternity leave it is more probable than otherwise that she would have continued in employment unremarkably, notwithstanding the various changes that took place in early 2005 to the way the Respondent conducted its business.
While the changes brought in by the Respondent were of some considerable moment, when looked at in the light of the overall history of the Respondent, they were merely a short‑term change of emphasis. The reporting changes (the going functional) did not remove Ms Iliff's job. She is still there in the organisation chart of 1 April 2005.
There is no logical reason why reporting to Mr Visscher should have meant that Ms Iliff's job would disappear.
What did change of course was the nature of the duties being required. Rather than those duties that Ms Iliff alone had herself previously performed, the role expanded to involve giving support to Mr Lacey in his role as BDM in the finance sector APO area.
That initiative, however, did not last long. Once Ms Matthews was employed, she really only continued to do those functions until the end of 2005. By 2006 Mr Lacey had moved on, and Ms Matthews did not get on as well with his successor, a Mr Marks (Matthews affidavit – paragraph 74).
The Respondent embarked upon a new venture, namely the takeover of a company called Yantra, and Ms Matthews in effect was transferred to dealing predominantly with that (Matthews affidavit – paragraph 75 and Visscher affidavit – paragraph 112).
From 2007 a new employee has taken over what might be described as the remains of Ms Matthews' former role, and the job description shows a considerable similarity to Ms Iliff's.
Although the person appointed in 2007, a Ms Julie Christie, appears to be somewhat more experienced than Ms Iliff was at the time of her maternity leave, I have no doubt that Ms Iliff could have performed the duties now being performed by Ms Christie, for the reasons given earlier at paragraphs 43-46.
The reason Ms Iliff was not permitted to return by the Respondent was that the Respondent, in the persons of Mr Vulcan and Mr Visscher, had the good fortune to come across Ms Matthews. Almost from the beginning of her employment, Ms Matthews impressed them as being a superior employee to Ms Iliff.
Mr Vulcan and Mr Visscher were keen to turn the APO business of the Respondent around. They felt they needed somebody with
Ms Matthews' skills to enable them to support Mr Lacey and to achieve that end they grabbed her as quickly as they could.
Although they knew that this must inevitably impact upon Ms Iliff, and although they had some passing unease – albeit that it was scarcely clearly articulated – the reality is that they did not care too much what happened to Ms Iliff. She emerges as a kind of voice‑off in the process whereby Ms Matthews was engaged and retained.
When Ms Iliff ultimately pressed the point as to her return, the Respondent simply dismissed her, but refused to make her any payment, in effect because she had contacted lawyers and insisted upon her rights at law as she saw them.
Nonetheless, while I have no doubt that Ms Iliff would not have been dismissed if she had not gone on maternity leave that does not mean necessarily that the reason for her dismissal was the fact that she was on maternity leave. This brings us to the vexed question of the comparator.
I have been provided with a substantial amount of authority by the parties on the law in this area. I have read all the authorities and had careful regard to them, but the two cases that seem to me to be of the greatest assistance are Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 (“Thomson”) and Purvis v State of New South Wales (2003) 217 CLR 92 (“Purvis”).
In Thomson, Allsop J had to deal with a set of circumstances that bears some similarity to those in this case. At [121] his Honour dealt with the issue of the comparator in these terms:
“As I said above, the relevant person the treatment of whom is to be compared with the treatment of Ms Thomson, is someone who is not pregnant, "in circumstances that are the same or are not materially different". The effect of that phrase, requiring equivalence, throws up the following possibilities here:
(a) a similarly‑graded account manager with Ms Thomson's experience at Orica who did not take any leave (in this case the equivalence being limited to the relevant status of account manager);
(b) a similarly‑graded account manager with Ms Thomson's experience who, with Orica's consent, took 12 months’ leave and wanted to return (in this case equivalence being the status of the account manager and taking 12 months' leave and returning); and
(c) such a person as in (b) but who had a right to return on the same basis as Ms Thomson.”
His Honour went on in Thomson to say that it was the person identified in (c) who was the proper comparator. His Honour went on to find on the facts of the case that the treatment of Ms Thomson did indeed breach the SDA, but it will be noted that that was a decision that turns on the facts of the case.
Applying his Honour's judgment, in this case the comparator would seem to me to be a person who went on unpaid leave in December 2004 with an enforceable understanding that they were entitled to return to work, following the end of that leave, in 2005.
I appreciate that the correspondence from Mr Vulcan to Ms Iliff before she went on leave purported to make her return conditional, but, in my view, the entitlement to return was one that can be fairly said to arise out of the return‑to‑work provisions, to which I will turn in due course.
In Purvis, the High Court dealt with the question of comparators.
The case of course turned on a very particular set of facts involving a violent adolescent who had been excluded from school. The majority of the High Court – Gleeson CJ, in a separate judgment, and Gummow, Hayne and Heydon JJ together with Callinan J - were clearly of the view that the Disability Discrimination Act required a comparison of how the discriminator treated or would have treated a person without a disability in the actual circumstances of violent behaviour attending the relevant treatment of the disabled person.
In the decision of Gummow, Hayne and Heydon JJ their Honours said at [236] (in dealing with the question of an examination of intention and motive):
“For present purposes, it is enough to say that we doubt the distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably, was it "because of", "by reason of" that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".”
While Purvis was a case turning on the terms of the Disability Discrimination Act, not the SDA, those observations seem to me to be applicable here.
Applying the observations of the High Court, it is my view that the real reason why Ms Iliff was not permitted to return to work was because the Respondent wanted Ms Matthews to do the work instead. This was not because Ms Iliff was on maternity leave, although it could not have happened if she had not been; rather, it was because the Respondent formed the view, through Mr Vulcan and Mr Visscher, that
Ms Matthews was a better employee for the job in hand than Ms Iliff.
Once they had formed that view, they were clearly confronted by the problem that Ms Iliff was surplus to requirements. It is clear that the Respondents were well aware that the employment of Ms Matthews was to an extent interrelated with that of Ms Iliff. As I have already said, I think that the tinkering with the job description was designed, at least in part, to protect the Respondent in the event that Ms Iliff challenged the reorganisation that led to Ms Matthews' appointment.
Nonetheless, while that conduct does the Respondents no credit, it does not go to the point of turning the reorganisation and the concomitant employment of Ms Matthews into a sham, as Ms Iliff asserts.
To assert a sham is a serious matter, even where it does not amount to fraud (per Young CJ in Equity in Hyhonie Holdings Pty Ltd v Leroy (2003) NSWSC 624 at [90], quoting Lockhart J in Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FLR 449 at [461]) and I am not satisfied that that claim is made out. I accept that the change of emphasis to concentration upon finance sector APO was bona fide, in the sense that it was not manufactured after the event.
The extra and more complicated duties that arose from that initiative were not manufactured in order to enable Ms Matthews to be employed; rather, Ms Matthews was employed because that demand was already there and she was perceived to be ideally suited to meet it.
In light of these findings, it is clear that while the conduct of the Respondent, through Mr Vulcan and Mr Visscher, was insensitive to Ms Iliff's circumstances and in a very real sense dismissive of her as a valued employee, it was not conduct that took place because of the fact that she was on maternity leave. The fact that she was on maternity leave was what led to Ms Matthews’ coming into view, and it was
Ms Matthews’ coming into view in the way that she did that led to Ms Iliff's position not being offered to her upon her return.
It is not Ms Illif’s sex that caused the Respondent not to let her return to work. Rather, it was the emergence of another employee whom the Respondent wanted to employ instead. It would have done so if
Ms Iliff had been on study leave, or if the person in her job had been a man on unpaid leave, even if such leave had involved, as maternity leave did, a right to return to work.
I should also note that although Mr Visscher wanted a full-time employee (31 August 2007 P-28 Line 25), Ms Illif’s part-time proposal was not the reason she was not allowed to return. Rather it was the perceived superiority of Ms Matthews. If Ms Matthews had not been in the picture, I have no doubt Ms Iliff and Mr Visscher would have sorted out the hours of work issue.
In these circumstances, the sex discrimination claim fails.
There is however another aspect to the case, which is the failure of the Respondent to pay the Applicant a redundancy payment and her other entitlements unless she signed a release.
I return to this issue later in this decision because it was a separately articulated claim, but it also falls to be considered in my opinion under the area of sex discrimination.
For the reasons disclosed by Thomson see [116]-[139] and [149]-[170]. I accept that the treatment of Ms Iliff by the Respondent would contravene the SDA if it was treatment caused by her being on maternity leave. This view has been adopted elsewhere (see for example Dr-Bois-Hammond v Aries and Others [2004] QADT 27 at [133]-[134]).
The Respondent indeed did not argue to the contrary. It is not therefore necessary to traverse the terms of the SDA in any detail.
The letter that Mr Vulcan wrote to Ms Iliff on 17 February 2005 plainly contemplated that Ms Iliff was redundant and that she would be paid a redundancy payment. For reasons which I will come to later I have no doubt that that was the Respondent’s uniform policy in such situations.
Ms Iliff was not however paid her redundancy payment nor indeed was she even paid the payments in lieu of notice to which she was entitled.
Rather the Respondent required Ms Iliff, if she wished to access these payments, to sign a release.
I have no doubt that the reason the Respondent imposed this condition on Ms Iliff was the fact that she was on maternity leave, and the fact that she had an arguable entitlement to return to work as a result of the return to work provisions in the WR Act.
The Respondent has not chosen to go into evidence as to a state of mind at the relevant time in May-June 2005. It has claimed legal professional privilege for the communications between Mr Vulcan and Baker & McKenzie that occurred at that time.
I do not know therefore whether the Respondent acted in contumelious disregard of Ms Iliff’s right to return to work or whether the Respondent proceeded on the basis that the construction for which it has contended in this proceeding was correct and that its conduct did not in fact breach the legislation.
Applying the test set out at [125] above namely what was the real reason Ms Iliff was the subject of a requirement that she enter into a release to access a redundancy payment and payment in lieu at notice to which she was otherwise clearly entitled, I have no doubt that the reason was her sex. If she had not been a woman she would not have been on maternity leave and if she had not been on maternity leave the Respondent would not have required a release from her.
On one view the Respondent might be thought to have been likely to have sought a release from any employee with an enforceable entitlement to return to work who had ended up in dispute about that return. Nonetheless, it seems to me that the return to work provisions in the WR Act, involving civil penalties as they clearly do, is more probably than not the reason why the Respondent required a release from Ms Iliff. Even if it was not the only reason, it was clearly part of the reason, and this is enough (s.8-SDA).
This conduct plainly in my view contravened the SDA.
The Respondent treated Ms Iliff less favourably than they would have a person who was not a woman in the same or similar circumstances and the true cause of that treatment was her sex.
The remedy that should be granted to Ms Iliff is the payment of the monies withheld to her because of the Respondent’s discriminatory conduct namely $22,211.54 gross, less tax, as indicated in the correspondence sent to Ms Iliff.
The right to return to work statutory provisions in the WR Act
I accept the proposition advanced in the submissions filed by the Applicant, pursuant to Orders I made on 21 September 2007, that:
“The proper approach is that both sets of obligations can operate together and should be jointly applied. There is no inconsistency which arises which would ensure that one schedule must operate to the exclusion of the other.
(Applicant's supplementary submission, paragraph 5).”It is clear that breach of schedule 1A of the WR Act (the provisions relating solely to Victorian employees) is a penalty provision (see s.506). Schedule 1A required the employer to appoint Ms Iliff either to the position she held immediately before commencing leave, or, if that position no longer existed and there were other positions available for which the employee was qualified and capable of performing, then appointment to that position.
I have already found, and repeat that I have no doubt, that Ms Iliff could have performed the duties performed by Ms Matthews. Accordingly, even if her original job had disappeared, she could and should have been appointed to the position that Ms Matthews filled.
I appreciate that Mr Vulcan and Mr Visscher were not of the view that Ms Iliff could do that job. However, their conclusions in that regard were informed by a vivid subjective judgment made in circumstances of some haste and pressure. Looking at all of the evidence, the one thing that is clear is that the Respondent was not driven in any significant way by any obligations imposed on it by the WR Act.
If the employer had considered its position in terms of the legislation, it would have come to the view that Ms Iliff should be reinstated in her former position and her duties expanded, were that necessary, to those performed by Ms Matthews.
I do not accept the position contended for by the Respondent which was that both schedule 1A and the obligations in schedule 14 of the WR Act only come into life when an employee actually returns to work.
To construe this legislation, which is legislation for a social purpose, in this limited way would be to defeat its operation. It would mean that in every instance an employer could simply refuse to have an employee back after a maternity leave absence and thus evade at one stroke any of the obligations that the legislation imposes. That is not what the legislation was designed to achieve and a fair and purposive reading of it does not, in my view, produce that result.
It should be noted that an employee on unpaid maternity leave is still at work, in the sense that they are still an employee. Plainly, an employee cannot exercise any entitlement until it actually is devolved to them. Accordingly, the phrase in schedule 1A, "on returning to work after adoption leave," and indeed the phrase in the schedule 14, "when an employee returns to work after a period of schedule 14 maternity leave" must mean and can only be sensibly taken to mean the stage at which an employee properly exercises or seeks to exercise their entitlement to do so.
It follows that the employer has breached, in my view, both schedule 1A and schedule 14.
Because I was unable to understand the written submissions of the parties, I sought further submissions on 12 November 2007 about what penalties the Court might have the power to impose.
Both counsel addressed me, in most helpful submissions, on the basis that the Court was primarily concerned with breach of schedule 1A.
As the submissions developed, it is apparent that there is only one difference of interpretation between the parties in this aspect of the matter.
Both counsel agreed that, because of the terms of s.506(2) of the WR Act as it stood at the relevant time, clause 14(2) of schedule 1A was a deemed award condition to which s.178 of the WR Act in its then form applied.
That would give rise, given that because s.178 of the WR Act has been amended, to a maximum penalty of $33,000.00.
Counsel for the Respondent submitted however that because s.489 of the WR Act expressly defined sub-clause 14(3) of schedule 1A of the Act as a penalty provision to which s.533 of the WR Act in its then form applied, and because s.533 penalties have not been subsequently increased, then the maximum penalty of $10,000.00 for a breach of sub-clause 14(3) applied.
By way of distinction, counsel for Ms Iliff submitted that any breach of schedule 1A, whether of a penalty provision or not, attracted the operation of s.506(2) of the WR Act.
It was submitted therefore that the applicable penalty for a breach of either sub-clause 14(2) or 14(3) would give rise to the agreed maximum penalty of $33,000.00 set out in s.178(4)(b) of the WR Act.
I think that the terms of s.506(2) of the WR Act are clear. There is no question that we are concerned in this case with a contract of employment within the meaning of s.506(2). The section says:
“If a contract of employment …with an employee in Victoria does not at any time comply with a minimum term or condition of employment applicable under s.501, s.178 and s.179 applies if that minimum term or condition were a term of an award binding the parties to the contract.”
There is no exemption in respect of penalty provisions. While I accept that the legislation is far from perfectly drafted, there is no reason in my view to give the terms of s.506(2) any limited application. It is legislation for a social purpose and should be construed beneficently.
Were it necessary to do so, I would indicate that on the facts of this case as I have found them the better view is that the Respondent breached the terms of clause 14(2) of schedule 1A. As I have said earlier, Ms Iliff’s position was still in substance there when she sought to return. While the duties had expanded and changed somewhat, the job Ms Matthews was doing was in my view merely an evolved version of that formerly performed by Ms Iliff. Consistent with my description of the events, I think that Ms Iliff’s position was still there and she was not reinstated to it as should have been.
If I am wrong, however, and there was a new position, I would be satisfied this was another position available for which Ms Iliff was qualified and capable of performing. Thus there would be a breach in any event of clause 14(3).
I therefore accept the submissions of Ms Iliff that the penalty provision gives rise to a maximum potential penalty of $33,000.00 and I accept also that such penalty should be imposed.
It is clear to me that the Respondent knew of Ms Iliff's maternity leave entitlements. It had taken legal advice from the start. Mr Vulcan and Mr Visscher, who were senior employees, elected not to give them force, for reasons wholly unrelated to any misconduct or inadequacy on the part of Ms Iliff. It made its decision as a commercial decision in order to increase its profit, and, one might reasonably infer, to improve the career prospects of Mr Vulcan and Mr Visscher thereby.
Ms Matthews had been engaged as a contract employee. There was no impediment to not continuing her employment other than the manifest desire of the Respondent to do so, for the reasons I have described.
Merkel J in Finance Sector Union v Commonwealth Bank of Australia [2005] 224 ALR 467 at [72] said that “any light handled approach that might have been taken in the past to serious wilful and ongoing breaches of the industrial laws should no longer be appropriate.” I respectfully adopt those observations.
This is conduct that should be the subject of severe penalty. I think the maximum penalty should be imposed. The effects upon Ms Iliff have been dramatic. She has not progressed in her career and nor has she made any money since the time she went on maternity leave. She had every reasonable anticipation that her career would have progressed and that she would have made an income for at least a substantial part of the time from 2005 till now.
I note in passing that Ms Iliff was not at all times contented. She was plainly disaffected with her employment at times (see exhibit R3 for example). Nonetheless, the way in which she conducted herself at the time of going on leave and thereafter all suggest to me, and I accept that it is the case, that she was keen to continue in her employment and further her career with the Respondent. She would doubtless have been even keener to do so if the additional duties that came into play for Ms Matthews had been made available to her.
Further, the Respondent did what it did to Ms Iliff deliberately. It was no oversight.
It was also conscious in that in the correspondence to which I have referred Mr Vulcan and Mr Visscher clearly saw Ms Iliff’s return to work as being interrelated with their capacity to engage Ms Matthews in employment.
The Respondent also sought to an extent to hide its tracks by the manipulation of the new job description.
The Respondent has shown no contrition and has expressed no meaningful regret for the conduct on which it embarked, subject to some remarks by Mr Visscher.
While Mr Visscher overtly displayed some measure of contrition for the outcome of events upon Ms Iliff in the witness box, he chose to do so only under cross-examination. Mr Visscher’s remorse did not seem to me to be particularly sincere and to the extent that it was it was an emotion that could have better informed his actions at a more operative point while Ms Iliff was still employed.
Counsel for the Respondent did not seek to suggest that remorse or contrition formed any part of his client’s position and notwithstanding Mr Visscher’s remarks, I do not propose to give the Respondent the benefit of any discount for that.
I am of course conscious that this is so far as I am aware, a first contravention by the Respondent. Nonetheless, it was a curiously unattractive and in part dishonest course of conduct.
The right to return to work provisions enshrined in the WR Act are intended, in my opinion, to advance the circumstances of women generally by preventing a certain form of conduct being visited upon them, namely not being allowed to return to work after maternity leave. It is important legislation.
The penalty that I am imposing is designed to deter both the Respondent and employers generally from breaching their obligations imposed by this legislation. I will order that the sum of $33,000.00 so imposed be paid to Ms Iliff.
Was Ms Iliff dismissed and should she be paid for the time from 2005 until now?
Ms Iliff was not dismissed by the letter to her of 17 May 2005 (exhibit MV-47) from Mr Vulcan. That letter was plainly an offer to pay her about $20,000.00 in redundancy pay, provided she signed a release, which she refused to do.
The letter to Ms Iliff dated 1 June 2006 (exhibit MV-50) plainly treats the employment as ongoing because it is threatening, in a prospective sense, to end it. Thereafter the lawyers became involved and the Respondent's direct control over its employment of Ms Iliff effectively slipped into limbo.
Notwithstanding references in subsequent correspondence to the prospect of ongoing employment by Ms Iliff, it is clear that from June 2005 onwards she has never done any work for the Respondent. She has not at all times been ready, willing and available to do so, because she had another child during the period between then and now.
It is not possible to say when Ms Iliff's employment came to an end because no unequivocal act other than the filing of the Respondent's defence has ever repudiated her contract of employment with it. Nonetheless, it is clear the employment is at an end, and, if it had not ended previously, I find that it ended when the Respondent filed its defence in which it clearly articulated the proposition that the employment was at an end.
I do not think, however, that Ms Iliff is entitled to payment either for the period up to that point or thereafter. The judgment of the High Court in Automated Fire Sprinklers v Watson (1946) 72 CLR 435 (“Watson”) is heavily against this proposition. Judgments of the Court made observations to the effect that, if you wish to be paid, you have to work (see Latham CJ at 450-452 Starke J at 461, Dixon J at 465 and Williams J at 476).
Watson was a case that turned on specific statutory regulations. Even that result has itself been doubted more recently in the High Court decision in Byrne v Frew (1995) 185 CLR 410 at 428, per Brennan, Dawson & Toohey JJ.
In my opinion, the state of the authorities does not permit Ms Iliff to recover salary (apart from termination entitlements) for the period from 2005 until now, either in whole or in part.
The alternative claims for termination and redundancy pay
The paragraphs that follow are not strictly necessary in view of my earlier findings about the discriminatory imposition of a release. Nonetheless, the claims were separately put and should be addressed.
The Respondent could and should have given Ms Iliff proper notice of termination and/or pay in lieu thereof and an appropriate redundancy payment.
Mr Vulcan was quite clear in his evidence. He said that in circumstances such as these the Respondent would consult their lawyers and make payment. The reference to consulting the lawyers was plainly a reference to making sure that any such payment complied with any legislative minimum as he said: “if we make them redundant we gave them redundancy payments’ (P.77-30 August 2007). His letter of 17 May 2005 was, subject to the discriminatory requirement of a release, entirely consistent with this oral evidence.
Indeed the correspondence to Ms Iliff dated 1 June 2005 also makes it clear that a redundancy payment would be made.
I find, on the basis of Mr Vulcan’s unequivocal evidence and the
1 June 2005letter, that there was a clearly established custom and practice such that it can be properly said that it was the Respondent’s policy to pay all redundant employees their redundancy payment.
In my view, this policy was an enforceable term of Ms Iliff’s contract of employment. She was aware of the redundancy payment paid to
Ms Everett, (albeit that the redundancy of Ms Everett was somewhat contrived), and indeed had been informed by the Respondent that it proposed to make her a redundancy payment.
On the evidence before me and most particularly that of Mr Vulcan, I am satisfied that the policy of the company was sufficiently widely adhered to and disseminated that I can properly find that the parties and most particularly the Respondent intended the payment of redundancy payments to employees to be a term of their contract of employment. The judgment of the Full Federal Court in Riverwood International Australia Pty Ltd v McCormick [2000] 177 ALR 193, while turning on different facts, supports this conclusion as do the observations of Allsop J in Thomson at [146].
Further, albeit that the decision in Thomson turned again on different facts, much of what his Honour said at [141] – [148] supports the proposition that the breach of redundancy policy (in Thomson a family leave policy) was such as to repudiate Ms Iliff’s contract in employment. Such repudiation would, in the alternative to the contractual point above, entitle Ms Iliff to succeed in an action for damages to enforce the contract and have redundancy payment paid to her in any event.
For these reasons, I find that the Respondent is obliged to pay to
Ms Iliff the payments it should have made and which amount to $22,211.54 less applicable tax. This covers both redundancy pay and four weeks in lieu of notice.
I should conclude in respect of this aspect of this case by making it clear that I do not accept that Ms Iliff was entitled to a redundancy payment pursuant to the terms of the Victorian Award governing clerks. Ms Iliff was a marketing executive, not a clerk. The award does not extend to cover the employment of a person performing Ms Iliff’s sort of work.
Conclusion
Accordingly, in my opinion, the Applicant is entitled to succeed in her claims for imposition of a civil penalty in respect of the breach of the schedules of the WR Act and in respect of her claim for redundancy pay and pay in lieu of notice. Her claims otherwise fail.
There will be orders requiring the Respondent to pay to the Applicant the sum of $22,211.54 less tax of $2,119.00 and also the penalty of $33,000.00. I will hear the parties on the questions of interest and costs.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 3 December 2007
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