Kelly v TPG Internet Pty Ltd

Case [2003] FMCA 584

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KELLY v TPG INTERNET PTY LTD [2003] FMCA 584
HUMAN RIGHTS – SEX DISCRIMINATION – Family responsibilities – where applicant received a promotion on an acting basis and not in a permanent capacity allegedly because of her pregnancy – whether this constituted direct discrimination on grounds of pregnancy – where applicant sought to return to work after maternity leave on a part time basis to allow her to fulfil her family responsibilities – whether as a worker with family responsibilities the applicant was the subject of indirect discrimination because her employment was contingent on working full time – whether applicant constructively dismissed as a result of respondent’s refusal to vary contract – whether breach of contract necessary to find constructive dismissal – whether it is appropriate for the court to adopt a ‘sex plus’ approach and consider criteria of family responsibilities when deciding whether indirect discrimination has occurred – whether request for part time work amounted to the applicant seeking benefit of positive discrimination under Sex Discrimination Act.

Sex Discrimination Act1984 (Cth), ss.5, 7, 7A, 7B, 14

United Nations Convention on the Elimination of All Forms of Discrimination against Women 1979

Mayer v A.N.S.T.O [2003] FMCA 209
Western Excavating v Sharp [1978] 1 QB 761
Thomson v Orica Australia Pty Ltd [2002] FCA 939
Escobar v Rainbow Printing Pty Ltd (no 2) [2002] FMCA 122
Gardiner v NSW WorkCover Authority (Unreported, NSWADT 021126)
Waters v Public Transport Corporation (1991) 173 CLR 349
State of Victoria v Schou (2001) 3 VR 655
Hickie v Hunt & Hunt [1998] HREOCA 8

Applicant: REBECCA KELLY
Respondent: TPG INTERNET PTY LTD
File No: SZ 474 of 2003
Delivered on: 15 December 2003
Delivered at: Sydney
Hearing date: 13, 14 October 2003
Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Patricia Lowson
Solicitors for the Applicant: Turner Freeman
Counsel for the Respondent: Chris Ronalds
Solicitors for the Respondent: Muggletons

ORDERS

  1. The Court declares that the respondent unlawfully discriminated against the applicant in breach of ss.7(1) and 14(2)(a) and (b) SDA by appointing the applicant to the position of customer service and billing manager in an acting capacity. 

  2. The Court orders:

    (i)That the respondent pay to the applicant the sum of $7,500.00 by way of damages.

    (ii)That the parties may approach the court in relation to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 474 of 2003

REBECCA KELLY

Applicant

And

TPG INTERNET PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

  1. These proceedings have been brought by the applicant against her former employer claiming in her application that she was discriminated against contrary to ss.5(2), 7(2) and 14(2)(a) and (b) of the Sex Discrimination Act1984 (Cth) (“the SDA”) by imposing the condition that her promotion from corporate billing supervisor to customer service and billing manager be offered and accepted on an acting, instead of a permanent basis. The applicant claims that the reason that the condition was imposed was because she was pregnant. She claims that the…

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Details
AGLC
Kelly v TPG Internet Pty Ltd [2003] FMCA 584
Case
[2003] FMCA 584
Decision Date

CaseChat Overview and Summary

In the matter of Kelly v TPG Internet Pty Ltd, the applicant, Ms Kelly, brought an action against the respondent, TPG Internet Pty Ltd, asserting that they had unlawfully discriminated against her under the Sex Discrimination Act 1984 (Cth). Ms Kelly claimed that her appointment to the position of customer service and billing manager in an acting capacity was discriminatory, constituting a breach of sections 7(1) and 14(2)(a) and (b) of the Act. The respondent contested the claim, arguing that there was no evidence to establish that women per se were disadvantaged by a requirement to work part-time, a necessary element for indirect discrimination under the Act.

The court was tasked with determining whether the evidence supported Ms Kelly's claim of indirect discrimination based on sex and whether the family responsibilities criterion could be incorporated into the operation of the indirect sex discrimination provisions. The respondent contended that adding family responsibilities as an extra criterion was incorrect and contrary to the intention of Parliament. The court examined the distinctions between the case at hand and previous cases such as Hickie, Escobar, and Mayer to ascertain whether the respondent’s actions amounted to unlawful discrimination.

In delivering the judgment, the court found that the respondent had indeed discriminated against Ms Kelly in breach of the Sex Discrimination Act. The court accepted that family responsibilities could only form a constituent of discrimination in the limited area of dismissal under section 14(3A) and that discrimination by other means, such as scheduling training seminars at inconvenient times, could be discriminatory but not unlawful. The court distinguished the present case from Mayer, noting that the respondent's refusal to allow Ms Mayer to work part-time was unreasonable and constituted a breach of the Act. The court concluded that the requirement to work full-time disadvantaged women, who often have greater family responsibilities during their children's early years.

The court ordered that the respondent pay Ms Kelly the sum of $7,500.00 by way of damages and allowed the parties to approach the court in relation to costs.

Orders

Orders of the court

1.

The Court declares that the respondent unlawfully discriminated against the applicant in breach of ss.7(1) and 14(2)(a) and (b) SDA by appointing the applicant to the position of customer service and billing manager in an acting capacity.

2.

The Court orders:

(i) That the respondent pay to the applicant the sum of $7,500.00 by way of damages.

(ii) That the parties may approach the court in relation to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is the respondent’s case that Driver FM was in error in Mayer and that it is an essential element of the indirect discrimination provisions that the evidence must establish that “women per se are disadvantaged by a requirement that they work part time”. The respondent says that the addition of the family responsibilities criteria is an incorrect approach and is not supported by the quotation of the second reading speech to which Driver FM referred at [72] of Mayer. The applicant’s approach, it is said, seeks to blur the distinction between sex as a factor and the “sex plus” approach of adding family responsibilities as an extra criteria. This is contrary to the intention of Parliament to include family responsibilities only as a limited ground in s.7A for dismissal on the ground of direct discrimination. The ground cannot be incorporated into the operation of the indirect sex discrimination provisions in s.14(2) by mere assertion only. I accept that family responsibilities can only form a constituent of an act of discrimination in employment in the very limited area of dismissal under s.14(3A), so that there is no unlawful conduct in discriminating against a person by reason of family responsibilities in some other way. For example, by holding a training seminar at a time when it could be clearly established that persons with family responsibilities could not attend. That might be discriminatory in that it subjected such persons to a disadvantage contrary to s.7A(b)(i) but not unlawful because it did not amount to dismissal. I think there are clear distinctions to be drawn between the case currently before me and those upon which the applicant relies. In Hickie, which is the point of departure, the applicant was already working part time by agreement with the respondent. It was clear that there was then imposed upon her existing situation a number of detriments arising out of the part time arrangements. In Escobar the applicant was dismissed because it was made clear to her that no job full or part time was available. This allowed Federal Magistrate Driver to conclude that the dismissal was made on the grounds of the applicant’s family responsibilities and was in breach of s.4(3A). Mayer is a case much nearer to the facts of the one before me. There the applicant sought to return to work from maternity leave on a part time basis. At [75] Driver FM found:“The conduct of the respondent to refuse any part time work was not reasonable. It is clear from the Bailey e-mail that, contrary to Dr Carr’s evidence, suitable part time work was available for Ms Mayer. This was different work to that which the applicant had been doing, but it was important work that the applicant was able to do and needed to be done.” His Honour had previously found at [74] that the respondent’s conduct breached s.14(2)(c) because the applicant was constructively dismissed by reason of her sex. It will be recalled that His Honour found that Ms Mayer had abandoned her employment under duress. He found the discrimination which the applicant suffered fell under 5(2) and was established because the respondent insisted upon the applicant working full time against her wishes which was a requirement that disadvantaged persons of the same sex as the applicant, namely women. It disadvantaged women, His Honour found, because women had a greater requirement than men to work part time during the early years of their children’s lives.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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