Kelly v TPG Internet Pty Ltd

[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 condition has or is likely to have the effect of disadvantaging persons of the same sex as herself namely women who may become pregnant. She says that the disadvantages include that she was deprived of the certainty and consequent terms and conditions of holding a position on a permanent basis including the right to return to that job after her maternity leave.

2. The applicant claims in the alternative that the respondent discriminated against her contrary to ss.7(1)(b) and 14(2)(a),(b) (the characteristic being the taking of maternity leave) or (c) (the characteristic being that women do not return to work after maternity leave) by offering the promotion position on an acting basis and thus treating her less favourably. The applicant also claims that the respondent discriminated against her (contrary to s.7(2)) by imposing conditions (i) that she take 12 months maternity leave and (ii) that she return to work full time being conditions that disadvantage women who (a) take maternity leave and (b) who have the primary care of children.

3. The applicant also claims that when she attempted to return to work following her maternity leave in September 2003 the respondent refused to provide her with any employment and continued to do so until December 2002 which was a detriment pursuant to s.14(2)(d). She also argues that the respondent’s refusal to vary her contract by offering her part time work was not reasonable in all the circumstances and that her acceptance of this refusal constituted constructive dismissal contrary to s.14(2)(c).

4. These allegations are denied by the respondent which claims in regard to the promoted position that it was always being offered on an acting basis and in regard to its conduct upon the applicant’s return from maternity leave that she was offered full time employment in her previous position but that she made it clear to the respondent that she wished for part time employment at a rate of salary higher than that she was previously receiving. The respondent argues that it was reasonable for them to decline to provide her with part time employment because of the nature of the duties that were carried out by a customer-billing supervisor and that thus the respondent was entitled to the benefit of the exemption against indirect discrimination found in s.7B of the Act.

The case for the applicant

Evidence of Rebecca Kelly

1. The applicant provided two affidavits, the first dated 6 June 2003 and the second dated 10 August 2003 in response. The applicant commenced work with the respondent in 1999 as a customer service representative in the subscription call centre. She answered calls from new subscribers and people with problems with accounts. As the company grew so did the responsibilities of her position and eventually a new position of corporate billing supervisor was created for her. In this position she reported to the customer service-billing manager whose name was Michelle Rex.

2. In May 2001 Ms Rex had decided to leave the company and informed the internet services division manager Mr Vitek Piestrzynski of that fact. Mr Piestrzynski had asked Ms Rex to recommend persons in the section who might be able to undertake this job and one of those two persons was the applicant. It is the applicant’s evidence that in late May 2001 Ms Rex told her that “Vitek wants to speak to you about filling my position.”

3. It was the applicant’s evidence that she had two meetings with Mr Piestrzynski. In the first meeting she was offered the position which Mr Piestrzynski told her that he considered her most suitable for. She asked for some time to consider the matter and that was given to her. She telephoned her friend Sarah Baker and told her. She deposed to the fact that the next day she had a further meeting with Mr Piestrzynski at which the position and the salary was discussed. She asked for a salary of $50,000 a year which was considerably more than the $34,000 a year she was earning as the supervisor. Mr Piestrzynski agreed to discuss this with David Teoh, the proprietor of the business. The applicant says that she then told Mr Piestrzynski that she was pregnant.

4. According to the applicant about two or three days later Michelle Rex approached her and told her that Mr Piestrzynski had intimated that the position which was being offered to her was only an acting position. She said that she then organised a meeting with Mr Piestrzynski and asked him why this had happened and he responded that the job had never been offered as a permanent position, it was only ever acting and told her that he was sorry if she had misunderstood. The applicant deposed to having a conversation in which she asked Mr Piestrzynski what would happened if she declined the position and he told her that she would have to apply for the permanent position along with everyone else. She said:

   “I thought that was what you were offering me, seeing as Michelle is leaving. I thought it was because of my continuity of service and good performance. We even discussed the salary package and how superannuation would be structured. What will happen to all of that if it’s just an acting position.”

   Mr Piestrzynski told her that he would speak to Mr Teoh about these matters but the applicant said that if he had done so she was never informed of it.

5. In the event the applicant took the acting position details of which were set out in an agreement dated 25 June 2001. The relevant parts of this agreement which she signed are set out below.

   “Dear Rebecca,

   Re:  Employment with TPG Internet Pty Ltd

   1.   We are pleased to confirm your present employment with TPG Internet Pty Ltd (hereinafter referred to as “the Company”).  We would ask that you sign this letter as an acceptance of the terms and conditions of your employment.

   Position

   2.   Your position is that of Corporate Billing Supervisor.  In addition to your day to day duties, you are temporarily appointed as the Acting Customer Service and Billing Manager, and you may be called upon to perform other tasks as nominated by Management, as and when requested.  Your acting position will be reviewed based upon your performance.  A loading of $306.86 per week will be paid to you upon the satisfactory performance of your acting role of Customer Service and Billing Manager.  Meeting your performance targets defined by your Management is a requirement of your employment.

   Reporting Structure

   3.   You are currently required to report to the Internet Services Manager.  Along with business changes, the reporting structure may change in the future.

   Remuneration

   4.   The total annual remuneration package for your position is as follows:

   (a)     Salary $34,000.00 per annum which includes the 17.5% holiday pay loadings;

   (b)     Superannuation contributions (currently 8% of salary);

   5.Payment will be made fortnightly into your nominated bank or building society account.

   6.Working days are normally Monday to Friday with a total of 38 hours of work excluding lunch breaks and the normal working hours are between the hours of 9.00a.m. and 5.30p.m.

   7.The company’s policy is to review, but not necessarily change, remuneration packages between 01 June and 31 July each financial year.  Increases or decreases are made based on the employee’s performance and general financial conditions.

   Commencement of Employment

   8.The commencement date for your position is 25 June 2001.

   Place of Employment

   9.Your place of employment may change with business requirements, but is currently: 65 Waterloo Road, North Ryde, NSW 2113.

   Employment Conditions

   General

   10.This contract supersedes all previous contracts made whether orally or in writing.  Any variation or amendment to this contract in the future must be in writing and signed by both parties.”

6. The applicant stated in her evidence under cross-examination that she accepted the position on an acting basis because she believed that she would shortly receive the performance review referred to in paragraph 2 and would then be made permanent. She said that no such review was ever undertaken.

7. On 24 September 2001 the applicant states that she gave Mr Piestrzynski a letter outlining her intention to take maternity leave and she says that she provided him with a second letter on 27 November 2001 informing him that she proposed to take 40 weeks leave commencing on 14 January 2002. The applicant took annual leave from 27 December 2001 to 11 January 2002. The respondent accepted this arrangement.

8. During her time as acting customer service and billing manager the position was advertised. It is the applicant’s claim that she thought the person who was going to take this job (Mr Bugden) was doing it temporarily until she returned from maternity leave. She was to assist in training him and this she did. She completed her training of Mr Bugden about a week before she was due to leave. At the end of that period on 17 December 2001 she sent an e-mail around. The contents of the e-mail were as follows:

   “Subject: My last day as boss lady

   Hi Guys

   Well that time has come. The reins have officially been handed to Bob. I will be here for the rest of the week working on a project for Vitek. Please direct all questions to Bob from now on. You have all been wonderful to work with – THANK YOU!!!!!”

9. The applicant then commenced her leave. Her baby was born in early January. On 9 January 2002 she received a letter from Mr Piestrzynski in the following form:

   “Dear Rebecca

   Re Employment with TPG Internet Pty Ltd

   We would like to thank you for your time at TPG Internet Pty Ltd as acting customer service and billing manager. Your temporary position as the acting customer service and billing manager has been terminated effective today. Your current position is corporate billing supervisor as indicated in your contract.”

   The applicant had been paid as the acting manager until this time.

10. The applicant did not respond to that letter. She stated in re-examination that she had had the baby shortly after getting the letter and was busy after that. She said that she didn’t raise it later because she thought she would be offered a position similar to that of the manager which had ceased.

11. The applicant returned to TPG from time to time with her new baby on a social basis. She says that on 23 July 2002 she e-mailed Mr Piestrzynski to advise him that she would be returning from maternity leave in October and she wished to come in and discuss employment conditions with him at a suitable time. She says that she wanted to talk to TPG earlier than this so that she could work out a suitable part-time arrangement that would allow her to continue to care for her child.

12. By this time Michelle Rex had returned as the manager. Mr Bugden had left the company. The applicant went in to see Michelle in either very late July 2002 or early August 2002 and told her that she would like to work two days per week preferably Monday and Wednesdays from 21 October 2002. Michelle told her that she would be taking annual leave at that time so that it would be best if the applicant came back a little bit earlier so that they could make sure that the contract was in place before Michelle left. The applicant agreed with Ms Rex that she would return to work on 23 September 2002. The applicant states that Michelle said to her words to the effect:

    “The position of corporate billing supervisor doesn’t really exist any more – it has moved in a different direction. We will have to discuss what sort of role you will be coming back to. I will negotiate with Vitek for you.”

    The applicant then stated that she wasn’t really sure what to expect on her return so she left it at that for the time being.

13. On 12 August 2002 the applicant e-mailed Ms Rex asking if she had any news on the return to work and Ms Rex responded immediately that she was in negotiations with Mr Piestrzynski. Ms Rex’s e-mail then went on to refer to the applicant returning on a casual basis until her maternity leave expired. There was obviously some confusion here because that appeared to be based on an assumption that the applicant’s maternity leave expired in December 2002. However, the applicant explained to Ms Rex that she had only ever asked for 40 weeks maternity leave. Another e-mail was sent on 2 September 2002 requesting information. Ms Rex replied apologising for the delay and said that she would speak to Mr Piestrzynski as soon as possible. On 10 September 2002 the applicant went to see Ms Rex.

14. Under cross-examination the applicant agreed that she had told Ms Rex that she wished to return to work on Mondays and Wednesdays only, that she wished to be paid more than she had been paid as the supervisor and that she was not interested in returning to the call centre. There had been some correspondence between them concerning a possible job in the accounts department. The applicant indicated that she would be interested in that provided she remained in Michelle’s team.

15. At the short meeting on 10 September 2002 Ms Rex said to the applicant words to the effect:

    “I have spoken to Vitek. Things don’t look good for the salary you are asking for but Vitek is still keen to give you a casual contract.”

    The applicant says that she replied:

    “I need to organise child care. I need to know exactly what they are offering me. I can’t do anything until I know what is being offered.”

    The applicant says that Michelle was rushing away and before she left said:

    “Don’t worry I will have an offer to you by the end of the week.”

16. She received nothing by the end of the week nor had she received anything by close of business on 16 September 2002, one week prior to her proposed return date. On 17 September 2002 the applicant telephoned Ms Rex and told her that she hadn’t received anything, she hadn’t received a job offer and she was calling to let her know that she proposed to take the matter further. On 17 September 2002 the applicant filed a complaint with the Human Rights and Equal Opportunity Commission. The respondent wrote to the applicant on 27 September 2002 in the following form:

    “Dear Rebecca

    I refer to your recent telephone conversations and confirm that TPG Internet would like a formal request from you in relation to your intentions to return to work either on or before 23 December 2002.

    Please advise any changing conditions which you would like to return to work, if this varies from your existing permanent contract as corporate billing supervisor, in order that we may consider these. We would like to remind you that we are under no obligation to vary your normal terms of employment to suit your present circumstances. I await your reply.

    Regards…”

    The applicant did not respond to this letter when she first received it.  A further copy of this letter was sent to her in November.  She responded to that copy by advising Mr P Piestrzynski that she had placed the matter in the hands of HREOC and wished to deal with the company through the conciliation process.  

17. In cross-examination, the applicant agreed that she had not applied for the advertised position but stated that she was not aware that Mr Bugden was a permanent although she said that she knew that the permanent position had been advertised as a permanent position and that he had got it. She agreed that she had never asked the company for a specific job on her return and she did not recall any conversation which suggested that the corporate billing supervisor job couldn’t be done on a part time basis. She agreed that she had not discussed the position with the respondent after 17 September 2002 other than in the context of the HREOC conciliation process. She said that she thought that a job share for the customer billing supervisor position was possible without undue expense or risk of upsetting any of the customers. She believed that this could be done because a lot of the work involved responding to customer billing queries which she believed could be solved in a day although she accepted that sometimes there would have to be interaction with engineers and that would take more than a day and that the billing system which had been prepared in-house was not the best and could sometimes cause delays.

Sarah Baker

1. Ms Baker is a friend of the applicant.  Her affidavit deals with a number of conversations which she had with the applicant.  The witness said that Ms Kelly told her that she had been offered the job as customer services manager and that she had asked for some time to think about it because she was a bit nervous about taking it on.  In another conversation the applicant told her that she had had a second meeting with Mr Piestrzynski and that he had said to her that he was going to discuss her salary with the managing director.  At that meeting she told the witness that she had told Mr Piestrzynski about her pregnancy.  The witness deposed to a conversation in which the applicant told her that Michelle Palaci (Rex) had told the applicant  that the position was being offered to her on an acting basis.  At a later time the applicant told the witness that she had accepted the contract because she had been told that if she did not do so she would have to apply for the permanent position with everyone else and that she did not think she would get it because she was pregnant. 

1. The affidavit deals with conversations concerning the applicant’s replacement Mr Bugden and her receipt of the letter of 9 January 2002 terminating her acting position.  The witness stated that she told the applicant not to get upset and not to deal with the letter because her baby was due.

2. Further conversations are deposed to relating to the applicant’s communication with the respondent concerning her return to work.  There is one conversation dealing with events on 16 September when the applicant allegedly said to the witness:

   “TPG are not going to offer me a position.”

   The applicant told the witness that she had already sought legal advice and proposed to take the matter to HREOC.

3. A further conversation to which the witness deposes indicates that the applicant said to her words to the effect that she would accept back her old position as corporate billing supervisor but sometime later she said:

   “TPG have five positions but they are all full time and they know I can’t accept because I have to look after >

   The witness deposed to the affect that the ongoing problems with the respondent were having on the applicant which was causing her stress, worry, concern and financial uncertainty.

The case for the respondent

Vitek Piestrzynski

1. Mr Piestrzynski gave evidence that he was the internet services manager of the respondent.  He indicated that in about May 2001 Ms Rex had given two weeks notice.  He asked her whether she could recommend anyone from the current staff to replace her.  Ms Rex made two recommendations, the applicant and a Ms Jill Cheshire.  The witness stated that Ms Rex said to him that the applicant was reluctant to take the position and so the witness asked whether Ms Rex could organise a meeting to discuss the applicant’s suitability.  According to the witness this meeting took place.  Ms Rex was there at the beginning but left.  He stated that the applicant told him that one of the reasons she was reluctant to take on the job was because she was pregnant and she did not wish to have any additional stress.  He states at [3]:

   “I underlined to Rebecca the responsibilities associated with the position and we started to talk about what salary would be associated with the position.  I said to her:

   “How much would you want to take the position?”

   Rebecca replied:

   “I would want $50,000.00 per annum.”

   I said to her:

   “I cannot make a decision in relation to that figure and your appointment until I have approval from David.”  (Meaning the manager director David Teoh.

   The witness deposed to the fact that Mr Teoh agreed that the applicant could take the acting position at a salary of $50,000.00 per annum.

2. The payroll officer of the respondent prepared a written contract of employment which Mr Piestrzynski handed to the applicant.  The relevant terms of that contract have already been set out.  Mr Piestrzynski asked the applicant to read through the document, sign it and give it back to him.  He said that she asked him when the permanent position would become available and he said that he would advertise it in a couple of weeks.  He deposed to saying:

   “If you wish you can apply for the permanent position as everyone else.  Management experience gained in the acting position will improve your chances.”

3. Under cross-examination Mr Piestrzynski agreed that he had not done anything about advertising the permanent position “in a couple of weeks”.  In fact no advertisement was placed in the newspaper until late October.  Mr Piestrzynski said that a notification of the advertisement was placed on the intranet so that current staff could consider applying.  He said that the applicant did not apply although one of the team leaders from customer services and billing, Jill Cheshire, did so. 

4. A Robert Bugden answered the advertisement and was appointed to the position on 5 November 2001.  Mr Piestrzynski says that he was introduced to the applicant as the permanent manager.  He asked the applicant to train Mr Bugden and she did so.  He told the applicant in mid December that he wanted Mr Bugden to take over the position during her last week there so that he could see how Mr Bugden was handling it.  The applicant had already made arrangements to go on annual leave from about 21 December and then commence her maternity leave in early January.  The arrangement proposed by Mr Piestrzynski occurred and the applicant sent the email previously set out.

5. Mr Piestrzynski deposes that prior to her leaving the applicant said to him that she might be interested in some part time work during her maternity leave.  Some work did occur in March 2002 and she was contacted by Ms Willa Gorton for that purpose.  The applicant declined to take up the offer.

6. At paragraph 9 of Mr Piestrzynski’s affidavit he says this:

   “Rebecca approached me in July 2002 about a part time position during her maternity leave.  I passed her request to Michelle, the manager of customer services and billing, who had rejoined the company after Bob Budgen had left.”

7. This is the first piece of evidence of a misunderstanding on the part of the respondents through Mr Piestrzynski of the applicant’s position concerning her maternity leave.  Mr Piestrzynski appears to have been under the impression that all maternity leave was for twelve months and that no obligation existed to provide a person on maternity leave with their own job back until that twelve months had expired.  That he held this view of the matter is corroborated by the letter that he wrote on 27 September and which is exhibited to his affidavit.

8. Mr Piestrzynski gave the responsibility for organising the applicant’s return to work to Michelle Rex, by then Michelle Palaci, and there followed a series of e-mails, which have been discussed under the evidence of the applicant.  He deposed that he was told by Michelle that the applicant wished to return to part time two days a week preferably Monday and Wednesday and was looking for a salary commensurate with that which she had been earning when she went on maternity leave.

9. Mr Piestrzynski gave evidence that Jodie Smith was employed as acting manager of the help desk for a year from 2001 to 2002 and the recent appointment of a help desk manager was on acting basis for four weeks.  He produced some statistics in his second affidavit which included a table at paragraph 8 setting out the number of staff divided between full time and part time male and female between January 2002 and September 2003.  This table indicated that more males than females worked part time.  Under cross-examination the factors which went into the chart were revealed.  There are no actual permanent part time positions in the company.  A part timer was described as anybody working less than twenty hours a week.  Most of the people who worked less than twenty hours a week worked in the call centre and most of them are male students.

10. The second affidavit also set out the respondent’s reasons why the position of corporate billing supervisor could not be job shared or undertaken on a part time basis.  The tasks were set out and Mr Piestrzynski sought to argue that many of them were customer based and could not be completed within a day.  This meant that the customer may well have to speak to more than one person about the same matter and this would cause customer dissatisfaction in a highly customer orientated and very competitive business. 

11. Under cross-examination Mr Piestrzynski said that he had only been given two weeks notice of Michelle’s departure and that he needed someone to take over her position so that the customers could have continuity.  He said that he only remembered one meeting with the applicant although he agreed that they did talk every day and that what the applicant described as a meeting may have been what he would have described as a casual discussion.  It was his evidence, even under cross-examination, that the applicant explained to him that she was pregnant at the only meeting in which the position was discussed.  Perhaps more importantly he stressed that no offers were made at the meeting.  He regarded the meeting as a negotiation between himself and the applicant following which he would have a discussion with Mr Teoh and then would present to the applicant for her acceptance or rejection a proposal.  Mr Piestrzynski said that he always told the applicant that the position was temporary because he regarded it as a stepping stone to a full time position.  He needed someone speedily, the applicant appeared to be suitable and she would be an excellent stop gap until the position was advertised.  He did agree that he never raised any performance issues with Ms Kelly during the time in which she performed the position.

12. He also said that he had told the applicant that the position was going to be advertised shortly before that happened but he did not ask her to apply.  He said this was because he did not want it to appear that he was favouring the applicant.  He claimed that he was under the impression that the applicant had not yet made up her mind whether she wished to return to work at all after maternity leave.

13. Mr Piestrzynski was cross-examined about the references to the performance review in the contract.  He said that this was usual in the company’s contracts but he was shown three contracts in which it did not appear.  He said this was because the contracts were not acting contracts.  He claimed that the meaning of the phrase in the applicant’s contract was that if she did not perform in her acting position it would be taken away from her but he agreed that it could have been interpreted in another way.

14. Mr Piestrzynski  told the court that when the applicant was put in to her new position her old position as supervisor was filled on a permanent basis by someone known as Phil Barton. Mr Barton had intimated that he would be leaving after about a year to take up a position as a missionary Mr Piestrzynski  said that he would always have taken the applicant back as a full time supervisor but he did not offer that position during the time that she was negotiating with Michelle.  He said that he thought that the applicant wanted the part time supervisor’s job at the salary of a manager and he didn’t understand this demand.  He also said that he wanted the applicant to take a casual job for the remainder of her maternity leave and then take back her permanent job on a full time basis.  He said that the offer of casual employment in the call centre (at her supervisor’s pay) was the only job that was available to her part time. 

15. Mr Piestrzynski posited that if the supervisor’s job had been turned into a job share it would involve an error rate of approximately 10% in the sharing of information between the two persons carrying out the work.

Willa Gorton

1. Ms Gorton was Mr Piestrzynski’s PA at the relevant time.  Her evidence concerned the offer of a part time position to the applicant during the course of her maternity leave which the applicant declined.  She says at paragraph 4 of her affidavit:

   “I have been shown documents from Rebecca Kelly stating that she was unaware that Robert Budgen had been hired as the customer service and billing manager.  I have personally witnessed many meetings between Robert, Rebecca and Vitek concerning the running of the internet section which took place at the conference table in front of my desk.  I was aware that Robert had been hired to take over Rebecca’s role and was being groomed by her for that position.”

Michelle Palaci

1. Ms Palaci (formerly Ms Rex) deposed to having recommended the applicant for the position of billing manager after she left.  She was unable to give any evidence about the nature of the contract that was to be negotiated between the applicant and Mr Piestrzynski but stated that she did recall being made aware that the position would be offered under an “acting contract”.  However, it is not clear that this information came to her prior to the applicant having her discussions with Mr Piestrzynski.  She did say that she was not aware of anyone working in an acting position before the applicant was employed in her position on that basis.  She said that she thought that the applicant could have done the job permanently from the beginning.

2. Ms Palaci confirmed that she had been given responsibility for dealing with the applicant’s request to return from maternity leave and commence work by Mr Piestrzynski.  She was clear that she told the applicant that her current position of corporate billing supervisor was available to her full time.  She confirmed that the applicant in fact wanted a part time position and she wanted to be paid at a salary which was higher than that of a corporate billing supervisor.  She said that the applicant did not want to come back and work in the call centre even at her previous salary.

3. Ms Rex explained to the applicant that she did not have anything that would fit her requirements but would look around the office to see whether anyone else had.  She made some enquires in the accounts department where a position seemed a possibility.  There followed the e-mails between her and the applicant concerning this position but it never seemed to have got very much further than Mr Parker agreeing to discuss the possibility with Mr Teoh.  It was Ms Palaci who suggested that the applicant come back before she went away on leave for five weeks for her wedding.  In response to a question from me Ms Palaci that she never gave any thought to the applicant coming back and working in her position for at least five weeks.  She gave that responsibility to Jill Chesher who combined it with her own position as customer service team leader.

4. Ms Palaci gave evidence that in her view the corporate billing supervisor job could not be done part time for the same reasons as expressed by Mr Piestrzynski.  She agreed that the vast majority of registrations which was an important part of the position could be done within two hours and most complaints could be dealt with within one call and that it was their best practice to respond to enquires within four hours.  She indicated that most e-mails which were received after 3.00p.m. on a particular day would not be dealt with until the next day.

Findings of fact

1. There are a number of areas in which the evidence of the parties differs and it is important to find certain facts.  The first matter is the circumstances under which the applicant took over Ms Palaci’s position.  Having listened to both the applicant and Mr Piestrzynski

   
   

   I have come to the view that neither of them were completely accurate in their recollection.  I am satisfied that Mr Piestrzynski was left with an urgent problem when Ms Palaci gave him two weeks notice.  I am satisfied that this company had a policy of internal promotion.  This is evidenced by what occurred to the applicant herself and also what has occurred to Ms Palaci, Ms Chesher and other members of staff.  I am satisfied that the applicant is correct that there was no discussion of the job being an acting one at the first interview.  I am satisfied that the parties had more than one meeting.  I am also satisfied that the applicant told Mr Piestrzynski that she was pregnant before the negotiations had been completed.  I do not think he responded to her at the time. He then decided that the position should be acting and produced the contract accordingly.  It was when he produced the contract that he had the conversation with her concerning her ability to apply for the full time job when it was advertised.  It was in that conversation that he told her that taking the position on an acting basis would stand her in good stead for the permanent position. 

2. I am satisfied that the applicant was perfectly capable of doing the manager’s job and this is confirmed by the evidence of Ms Palaci.  It is also confirmed by the fact that Mr Piestrzynski did not ever take up any issues with her about her position although he says he assisted her, which I accept.  He also asked her to train Mr Budgen when he appeared on the scene.  I believe the fact that the company continued to pay her the salary that she had been earning in her acting position was indicative of their gratitude to her for a job well done.  I am of the view that had the applicant not told the respondent that she was pregnant she would have been offered the position permanently.  I say this because I do not accept that it was the practice of the company to give people acting positions, because it was in fact the practice of the company to promote internally and because the company was quite obviously satisfied with the work which the applicant was undertaking.  This is evidenced by the fact that it took some months before it got around to advertising the permanent position so that it would be taken up at about the time the applicant went on maternity leave.

3. I find that the applicant did not apply for the permanent position when it was advertised.  I have no evidence which would enable me to make a finding one way or the other as to whether the applicant would have been awarded the position.  I think that the decision to offer the applicant an acting position evolved.  Whilst it was strongly influenced by the applicant’s pregnancy it does not follow that Mr Piestrzynski was not sincere when he told her that her experience would stand her in good stead if she made an application for the permanent position when it was advertised.

4. I find that the applicant did ask Mr Piestrzynski  to let her know if there were any part time positions available whilst she was on maternity leave and that he acted upon this request when such a position did become available.

5. I am satisfied that Mr Piestrzynski misunderstood the applicant’s rights in respect of maternity leave and the company’s obligations.  I believe that he genuinely held the view that any obligation to provide her with her former job commenced on the anniversary of the date on which she left the position to take up maternity leave.  On the other hand I think that Ms Palaci knew that the applicant could choose her own time to return from maternity leave and that the company’s obligations commenced then.  I accept Ms Palaci’s evidence that she offered the applicant her original position of billing supervisor on a full time basis.  I say this because I find that Ms Palaci was a witness of truth even though I do not necessarily agree with her views as to the nature of that position.  This is not a disagreement on fact.  I would find that the position could be held on a job share basis.  I find that the applicant only wanted to return to work on a part time basis and that she was looking for a salary in excess of that which she had previously been earning as the corporate billing supervisor.  I accept that she did not wish to return to the call centre. 

6. I would find that this work was not commensurate with the managerial duties she had undertaken prior to going on maternity leave.  I find that no part time work was offered to the applicant apart from the work in the call centre although I find that such work was offered to her at the rate of salary she was earning as the supervisor before she was promoted.  I find that Ms Palaci did make an effort to see whether  other jobs were available but that she was not actively assisted in this by the company.  I find that no real thought was given to the possibility of making the corporate billing supervisor position a job share position.  By this I mean that to the extent that any consideration was given by either Mr Piestrzynski or Ms Palaci to the matter, it was quickly dismissed. 

7. I find in respect of this position that approximately 25% of the time is taken in registering corporate customers and that from responses given to me by Mr Piestrzynski and Ms Palaci little of that work involves direct communication with the client.  It is only in the exceptional case that the work cannot be completed in a day.  I find the billing of corporate customers which used to be an important part of the task has now been automated and what has been left is the answering major customer’s billing and administration queries.  I find in respect of this task that most work can be undertaken and completed within a day although there are occasions upon which queries may continue or where a customer is not satisfied and telephones again.  I find the debt collection has now been given to the accounts department and that cancellation of corporate services is a mechanical function which does not require communication with the client.

1. I find that the applicant made her first request concerning return to work by e-mail dated 23 July 2002 and that she accepted Ms Palaci’s suggestion that she return in late September prior to Ms Palaci going on leave for five weeks leave for her wedding.  I find that with the exception of the oral offer for the applicant to return to her full time position as customer billing supervisor or to return to part time in the call centre at the billing supervisor pay rate no other offer was made until the matter had been placed in the hands of HREOC.  I am not prepared to find that the applicant would have returned to her original full time position.  I think the stronger evidence is that she did not believe she could make appropriate arrangements for the care of her child if she did this.  There does not appear now to be any dispute that the letter offering the applicant positions within the company was sent and received by her shortly after 27 September 2002 and was sent again in November because she had not responded to it.

2. The applicant was questioned about her attempts to find another position.  She gave evidence that she had looked at positions on the internet but had not applied for any because she did not believe they were suitable.  I accept the respondent’s evidence that the managerial positions within the company from Corporate Billing Supervisor upward were all occupied on a full time basis. 

Reasoning

The “Acting” position

1. The facts which I have found at [47] and [48] are sufficient to establish that because of Ms Kelly’s pregnancy the respondent treated her less favourably than, in circumstances that are the same or are not materially different, the respondent treated or would have treated someone who was not pregnant. The treatment referred to was the employment of her in an acting position as Customer Service and Billing Manager in breach of s 7(1) and s 14(2)(a) and (b). The comparator in this case is Mr Barton who was appointed to the Corporate Billing Supervisor position on a permanent basis notwithstanding his intention, known to Mr Piestrzynski, to leave or to take leave in order to undertake Missionary work in Vietnam. If it is argued that I am wrong about this I would say that the comparator is Ms Palaci who was appointed full time and who was not pregnant. In this regard I believe she is entitled to general damages for hurt and humiliation. The more difficult question is whether she has any further entitlement.

2. The applicant argues that if she had not been discriminated against unlawfully she would have been given the position on a full time basis which would have carried with it the right to return to that position. She argues that there should be included in her special damages for loss of earnings some additional element over and above the amount of loss she claims she suffered by not being given a position even at a billing supervisor level. Against this it is argued that the applicant knew full well that the job was being advertised on a full time basis and made a decision not to apply for it. At that stage she lost any opportunity she might have had to claim those special damages. It seems to me that this argument overlooks the fact of the unlawful conduct. Whereas I can see that at some stage there may well be an abandonment by an applicant of a continuing right to damages I do not think that her failure to apply for a job which, but for unlawful conduct, would have been hers amounts to that. I think the facts indicate that Ms Kelly abandoned any claim to the Manager position when she sought to return. Here was an applicant quite aware of the provisions of the SDA and of the employer’s obligations to her, who sought to come back part time in the position which her contract stated her to be holding (Billing Supervisor) albeit at a higher salary which took into account her previous experience as Manager. I propose to leave the calculation of any damages to be awarded on this basis to the final section of these reasons.

Discrimination in respect of the refusal of a part time position

1. There are two grounds on which the applicant seeks relief in respect of this situation. Firstly she claims she is the subject of indirect discrimination because the respondent imposed or proposed to impose a condition, requirement or practice (the requirement to work full time) that has, or is likely to have, the effect of disadvantaging persons of the same sex as the applicant (because women are said to have the preponderance of responsibility for child care and therefore statistically a preponderance of the need for part time work). She said that by doing this the respondent has breached s 14(2)(a) of the SDA. As an alternative it is argued that the respondent treated the applicant less favourably than it treated, or would have treated a person without family responsibilities in circumstances that are the same or not materially different and that the less favourable treatment (being the constructive dismissal of the applicant) was by reason of her family responsibilities or a characteristic that appertains generally to persons with family responsibilities or a characteristic that is generally imputed to persons with family responsibilities namely the inability to work full time whilst her child was in its early years. This becomes a breach of s 14(3A) when, it is said, the refusal to offer her part time employment constituted constructive dismissal. The applicant argued that the respondent refused to offer her any employment but I have found as a fact that it did offer her the opportunity to return to her old job on a full time basis.

2. The applicant relies on what fell from Driver FM in Mayer v A.N.S.T.O [2003] FMCA 209 at [74] where His Honour said:

   “The respondent’s conduct breached s 14(2)(c) because the applicant was constructively dismissed by reason of her sex. It was a condition of Ms Mayer’s contract of employment that she work full time. That condition was maintained when the contract was extended. Ms Mayer’s request that her contract be varied so that she could work part time three days a week was rejected. So was her proposal that she work the balance of the week at home. Ms Mayer was unwilling to return to work full time following the birth of her child, and the refusal of the respondent to vary the contract made it impossible for Ms Mayer to return to work at all. The respondent required Ms Mayer to adhere to the full time employment term of her contract, which Ms Mayer was unwilling to do. Ms Mayer abandoned her employment under duress. I see no material distinction between a resignation made under duress and the abandonment of employment under duress. This constitutes constructive dismissal: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; Allison v Bega Valley Council  (1995) NSWIR Com 175. It is not necessary in my view, for me to find a breach of contract in order to find a constructive dismissal. It is sufficient that the respondent forced the applicant to abandon her employment by its refusal to vary the contract.”

3. With respect to His Honour Driver FM I am not in entire agreement with his suggestion that it is not necessary to find a breach of contract in order to find a constructive dismissal. The concept of constructive dismissal was seminally defined by Lord Denning in Western Excavating v Sharp [1978] 1 QB 761 at [769A] where his Lordship said:

   “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”

4. In Australia, the Federal Court in Thomson v Orica Australia Pty Ltd [2002] FCA 939 commented at [141]:

   “Constructive dismissal is an unlawful termination of the contract of employment in circumstances where the employee leaves, without an express act or enunciation of ‘dismissal’ by the employer. It will be taken to be a dismissal (hence the word ‘constructive’) if the employer has behaved towards the employee in a way that entitles the employee to treat the employment as at an end. …

   Olson J (sitting at first instance) in Blaikie v South Australian Superannuation Board (1995) 65 SASR 85, 102-106 and (sitting on the Full Court, though in dissent) in Easling v Mahoney Insurance Brokers Pty Ltd [2001] SASC 22 at [99], if I may say so, expressed the principle with clarity. The principle expressed by Olsen J in Easling at [99] was not the subject of any criticism from the majority (Doyle CJ and Bleby J). His Honour said:

   “ …Suffice to reiterate that the notion of constructive dismissal implies the existence of conduct on the part of the employer which is plainly inimical to a continuance of a contract of employment according to its express or implied terms. The authorities establish the concept that there is implied in a contract of employment a term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. An intention to repudiate need not be proved. Rather, it is a manner of objectively looking at the employer’s conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”.”

5. The point may be moot in relation to this type of case because if an employer wrongfully discriminates against an employee then that very discrimination constitutes a repudiation of the contract which the employee is entitled to accept. This would constitute constructive dismissal.

6. It follows from the discussion above that there is no escape from making a finding as to whether or not the actions of this employer in not offering the applicant an opportunity to take up part time employment upon her return from maternity leave constituted direct or indirect discrimination.

7. In an article in the Law Society Journal November 2003 [40-41] Mr J Catanzariti considered three recent decisions; Escobar v Rainbow Printing Pty Ltd (no 2) [2002] FMCA 122, Mayer v A.N.S.T.O [2003] FMCA 209 and Gardiner v NSW WorkCover Authority (Unreported, NSWADT 021126) in his conclusion he stated:

   “These decisions emphasise the need for employers to take reasonable steps to accommodate employees with family responsibilities. …

   Both Escobar and Mayer show that relying on s 66 Industrial Relations Act 1996 (NSW), which requires that employers provide employees who take maternity leave with the position held immediately before proceeding on that leave, will not be a defence to a complaint of discrimination on the ground of family responsibilities which is brought as a result of unreasonably being denied access to flexible working arrangements.

   It is clear that the law is increasingly imposing requirements on employers to examine the various structures in their organisation and to make the necessary changes and arrangements to accommodate employees with family responsibilities.”

8. Before considering the orthodoxy of these decisions and the approach which the court should take when faced with decisions of a fellow member bearing heavily on the facts of the case before it, it is worth noting the caution sounded by Brennan J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 372 referred to by Harper J in State of Victoria v Schou (2001) 3 VR 655 at 659:

   “The provision of needed services and the protection against adverse and unjust discrimination are distinct but related means of securing the welfare and dignity of the disabled. This litigation seems to me largely misdirected, for it invokes the Equal Opportunity Act 1984 (VIC) (“the Act”) and alleges unlawful discrimination when the true remedy which is sought is an enhancement of the services which are available to the disabled. Anti discrimination legislation cannot carry the traffic it was not designed to bear. The beneficial operation of such legislation is prejudiced by invoking its assistance to achieve remedies which can be achieved only by straining the legislative language …anti discrimination legislation should be liberally construed but not as though it were the only, or even the principle, means by which the disadvantages of the disabled or of other minority groups are to be alleviated.”

   Harper J went on to say in Schou at [161]:

   “A term of a contract of employment, compliance with which is reasonably adapted to ensure that the employee provide to the employer that standard of service that the employer reasonably requires and the employee is paid to provide, will not be caught by s.9 of the Act. It is not the aim of the legislation to deny employers the rights given to them by a lawful and reasonable contract of employment. If workers who are disabled, or who are parents or carers, or who carry some other relevant attribute, cannot do the job, the Equal Opportunity Act does not require their employment in spite of their inability to fulfil those terms of their contract of employment which govern the performance of the very tasks which they are employed to carry out.

9. The starting point for the line of authorities upon which Mr Catanzariti drew his conclusions was Hickie v Hunt & Hunt [1998] HREOCA 8 a decision of the Honourable Elizabeth Evatt sitting as a Commissioner. The applicant in that case was a partner in a firm of solicitors, who prior to going on maternity leave, carried on both a plaintiff and defendant practice. During the course of her maternity leave the members of staff who she had left in charge of her work resigned. Upon her return to work on an agreed part time basis, the partnership determined that Ms Hickie should no longer act for plaintiffs and that part of her practice was removed from her. Later her partnership contract was not renewed.

10. Evatt C held that the decision to remove the whole of Ms Hickie’s plaintiff practice in December 1995 was an act of indirect discrimination within the meaning of the Act in that it imposed on her a condition or requirement that in order to maintain her practice she must work full time. She further found that the imposition upon Ms Hickie of a condition or requirement to work full time resulted in detriment to Ms Hickie within the meaning of s.17(3)(c) SDA and was an act of indirect discrimination within the meaning of the Act. Finally she found that the non-renewal of Ms Hickie’s contract resulted from the imposition on her of a requirement to work full time to maintain her position in the firm and was an act of indirect discrimination within the meaning of the Act. At 6.17.7 – 6.17.12 of the judgement the Commissioner made some important observations.

11. Firstly she observed that one of the partners in the firm had made it clear that he was unwilling to accept Ms Hickie as the second CTP partner in his area while she continued to work on a part time basis, other than in the short term. His statement that he saw her inability to commit to a date to return to full time work as “a major hurdle” was sufficient for establishing he was imposing a condition upon her. The Commissioner went on to say at 6.17.9

    “The respondent argues the complainant led no evidence to show that women were likely to be disadvantaged by the requirement or condition, and no statistical evidence to show that more men than women can work five days a week. The Commission, it is submitted, cannot take judicial notice of these matters. Therefore there is no basis for a finding that the requirement would result in such disadvantage.

    16.17.10 Although no statistical data was produced at the hearing, the records produced by Hunt & Hunt suggests that it is predominantly women who seek the opportunity for part time work and that a substantial number of women in the firm have been working on a part time basis. I also infer from general knowledge that women are far more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work after maternity leave, in order to meet family responsibilities. In these circumstances I find that the conditional requirement that Ms Hickie work full time to maintain her position was a conditional requirement likely to disadvantage women. …(emphasis added)

    16.17.12 The question of reasonableness of the requirement has to be considered in light of the nature and extent of the disadvantage, which in this case is clear and obvious. The imposition of a condition, requirement or practice that a partner work full time would inevitably disadvantage women practitioners, especially those who are, or who are aspiring to be partners. To regard this as a reasonable requirement would perpetuate and institutionalise indirect discrimination against women lawyers. Insofar as it is argued that the condition is reasonable in its application to Ms Hickie, it has not been established that Ms Hickie could not perform all her functions without working five days a week, and this was not raised with her in cross-examination. The respondent has put forward no material under s.7B(2)(b)or (c) concerning the feasibility of overcoming this disadvantage or as to whether the disadvantage is proportionate to the results sought by them. It would be difficult for them to do so, given their experience with part time work. It has not been established that the condition, practice or requirement to work full time, imposed on Ms Hickie was reasonable in the circumstances. 

12. Driver FM relied on these findings in Mayer when he said at [70]

    “Contrary to Mr Lloyd’s submissions, I need no evidence to establish that women per se are disadvantaged by a requirement that they work full time. As I observed in Escobar v Rainbow Printing and as Commissioner Evett found in Hickie v Hunt & Hunt, women are more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work after maternity leave, in order to meet family responsibilities.”

13. The respondent argues that you cannot read the SDA to say that the requirement to work full time is discriminatory against women who, as primary caregivers, are likely to be disadvantaged by the requirement, subject to reasonableness. It is said that this proposition flies in the face of the primary objective of the Act, to give effect to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women and to “eliminate, as far as possible, discrimination against persons on the grounds of sex” s.3(a),(b) SDA. It is endeavouring to create a right which is not at all in accord with the approach of the legislation. The respondent argues that the outcome of the applicant’s approach is that all women can demand the right to work part time and require employers to create a position for them as a part time position. The extra component of primary care givers is a “sex plus” criteria and should not be accepted as it is not part of the statutory formulae. In this case the applicant wanted to dictate her salary as well as her hours of work under the guise of eliminating sex discrimination.

14. 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.

1. 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.

2. 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).

3. 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.”

4. 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.

5. At [59], [60] and [65] of her written submissions Ms Ronalds attempts to distinguish between Mayer and the current case:

   [59]  The outcome of the applicant’s approach is that all women can demand the right to work part-time and require employers to create a position for them as a part-time position.  The extra component of primary care givers is a “sex plus” criteria and should not be accepted as it is not part of the statutory formulae.  In this case, she wanted to dictate her salary as well as her hours of work under the guise of eliminating sex discrimination.

   [60]  With the greatest respect, this is the error that Federal Magistrate Driver in Mayer v ANSTO [2003] FMCA 209 fell into, at paragraphs 70 to 72 of his decision. Despite his assertion to the contrary, 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 addition of the family responsibilities criteria is an incorrect approach and it is not supported by the quotation from the second reading speech as set out by Driver FM at paragraph 72.”

   [65]  A crucial factual distinction from Mayer’s case when compared with this matter is that there was an e-mail which indicated that in one person’s view there was an availability of part-time work which Ms Mayer could perform (at [31]).  The respondent’s evidence is consistent that there was no part-time position available for the applicant at her level.  The applicant made it clear she was not interested in a call position but this is the role of the workplace where there is a light management structure.”

   I believe the reference in paragraph [60] to part time should be a reference to full time.

6. I think that in fact there are great similarities between the situation of Ms Mayer and Ms Kelly. Both applied to come back to work part time following maternity leave. The essential difference was that in Ms Mayer’s case the request to vary her contract of employment was being made in the context of a flexible workforce where such variations commonly occurred and where the variation could be accommodated for that particular employee. The drawing of this distinction between the two cases would appear to be the drawing of a distinction for the purposes of the reasonable test found in s.7B of the Act. The question really is whether s.7B comes into play or whether in the circumstances of either case there is no discrimination under s.5(2).

7. As has been recorded, Ms Ronalds argues that there is no discrimination under s.5(2) for two reasons. The first is that the demand to work part time constitutes a form of request for positive discrimination and is therefore not within the compass of the SDA as presently drafted.  The second argument rests on the fact that there is no proof of the requisite type that women are disadvantaged in this particular workplace or that the requirement or condition affects persons of their sex generally. 

8. I have come to the view that there is much force in Ms Ronalds’ first argument which is supported by the dicta in Waters and Schou that what is being sought in this case (and was being sought in Mayer) was the provision of a benefit and not the imposition of a detriment.  In my view Hickie was not such a case. The Hunt & Hunt partnership had accepted the continued employment of Ms Hickie on a part time basis but then subjected her to the detriment of taking away her plaintiff practice and not renewing her contract because she would not work full time. Section 5(2) makes it unlawful for a discriminator to impose or propose to impose a condition requirement or practice but that condition requirement or practice must surely relate to the existing situation between the parties when it is imposed or sought to be imposed. The existing situation between the parties in this case is one of full time employment. No additional requirement was being placed upon Ms Kelly. She was being asked to carry out her contract in accordance with its terms. As Harper J said in Schou at [658]:

   “The section does not turn the denial by an employer of a favour to the employee into discrimination, although if the favour is generally available to other employees, its denial to one could conceivably, in the particular circumstances, amount to an offence against the Act.”

9. I would suggest, with respect, that this is what Driver FM was really considering in Mayer.  The evidence in that case was all one way.  There was a refusal of a benefit generally available.  But that is not the evidence here.  The evidence in this case is that there were a number of what is described as “part time positions” in the call room.  On closer examination these positions turned out to be not part time at all but casual.  There is a wealth of distinction between casual employment and part time employment.  Casual employment carries with it no right of continual employment past the regular call ins.  A casual employee is, generally speaking, not entitled to such benefits of employment as holiday pay, sick pay or long service leave.  A part time employee has, generally speaking, fixed hours, her employment is of an ongoing nature and she has the statutory entitlements.  No evidence was called that established that there were any part time employees in any managerial position.  This case is therefore distinguishable from Mayer on that ground. 

10. Gardiner’s case, which was decided under the NSW Anti-Discrimination Act 1977, also concerned an employee who was in current employment upon a basis satisfactory to her.  The employer then sought to impose a requirement that she travel to Gosford (or relocate there) where new premises had been established.  This brought her case within the Hickie facts and the applicant was able to argue that the requirement constituted a detriment.  The employer convinced the NSW ADT that the requirement was reasonable.  The case is thus distinguishable from that before  me.

11. As I have found that the refusal to provide Ms Kelly with part time employment was a refusal to provide her with a benefit rather than the imposition of a condition requirement or practice that was a detriment there is no need for me to consider further the hotly disputed question of whether or not the applicant proved that such action had the effect of disadvantaging persons of the same sex as Ms Kelly. But in passing I would note that the passage in Hickie contained two elements, one of which was evidence about the particular workplace.

12. Because I have found that Ms Kelly was offered a return to her original employment and because I have found that there was in reality no requirement to work full time only a refusal to allow a variation of the contract to permit it, I am unable to find any conduct of the respondent which could constitute a constructive dismissal of the applicant. Nor conduct which was otherwise unlawfully discriminatory.

Damages

1. I have found that the respondent did not unlawfully discriminate against the applicant in relation to the refusal to offer her part time employment. Because I have also found that the applicant did not accept the offer of full time employment as a billing supervisor I am unable to see how there can be any special damage by way of loss of wages arising out of the discriminatory conduct which I have found at [56] in respect of the “acting” position.  I would award Ms Kelly the sum of $7,500.00 by way of general damages for that breach of the SDA.  I will hear the parties as to costs.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: