Laz v Downer Group Ltd

Case [2000] FCA 1390

FEDERAL COURT OF AUSTRALIA

Laz v Downer Group Ltd [2000] FCA 1390

INDUSTRIAL LAW – termination of employment – whether termination for proscribed reasons – application under s 170CK(2)(f) of the Workplace Relations Act 1996 (Cth) – whether employer bears onus of proving that termination was not for proscribed reason – whether applicant’s pregnancy was a reason for the termination of her employment – whether applicant’s family responsibilities were a reason for the termination of her employment – inherent requirements of employee’s position – whether appropriate to order reinstatement – whether Court has power to order back pay – imposition of penalty

Workplace Relations Act 1996 (Cth) s 170CK

Qantas Airways Ltd v Christie (1998) 152 ALR 365, referred to
Stojanovic v The Commonwealth Club Ltd (Moore J, IRCA unreported, 8 December 1995), distinguished
Kelly v Construction, Forestry, Mining & Energy Union (No 3) (1995) 63 IR 119, cited
Boyce v William and Suzanne Leggett T/A Baker Bill's Fine Pies (Finn J, Federal Court of Australia, unreported, 12 December 1997), cited
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, cited
Wannberg v Alloa Holdings Pty Ltd (Industrial Relations Court of Australia, unreported, 31 July 1996), cited
Ettridge v TransAdelaide (1998) 80 IR 422, cited
Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186, referred to
Sherman v Peabody Coal Ltd (1998) 88 IR 408, referred to
Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240, referred to
Printing and Kindred Industries Union v Vista Paper Products Pty Ltd (1992) 45 IR 268, referred to
Morris v Gestetner Ltd (1973) ICR 587, referred to
Barbara Mines Ltd [1998] FCA 621, distinguished

LOUISE LAZ v DOWNER GROUP LTD
N 960 OF 1999

MOORE J
11 OCTOBER 2000
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 960 OF 1999

BETWEEN:

LOUISE LAZ
APPLICANT

AND:

DOWNER GROUP LTD
RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

11 OCTOBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The proceedings be adjourned until 9.30 am on 20 October 2000 to enable the parties to bring in short minutes of order to give effect to these reasons.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 960 OF 1999

BETWEEN:

LOUISE LAZ
APPLICANT

AND:

DOWNER GROUP LTD
RESPONDENT

JUDGE:

MOORE J

DATE:

11 OCTOBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. This is an application by Ms Louise Laz (“the applicant”) alleging her employment with Downer Group Ltd (“Downer”) was terminated in contravention of provisions of the Workplace Relations Act 1996 (Cth) (“the Act”). The relief sought is an order for reinstatement, an order requiring the payment of a sum equivalent to wages lost since the employment was terminated, compensation and the imposition of a penalty. The specific contravention which is alleged is that her employment was terminated…

Continue reading Laz v Downer Group Ltd

Sign in free to access the full text

Details
AGLC
Laz v Downer Group Ltd [2000] FCA 1390
Case
[2000] FCA 1390
Decision Date

CaseChat Overview and Summary

The case of Laz v Downer Group Ltd involves Ms Louise Laz, who alleges that her employment with Downer Group Ltd was terminated in breach of the Workplace Relations Act 1996. She seeks reinstatement, compensation, and penalty payments, claiming her termination was due to her family responsibilities and pregnancy. The court must determine whether the termination contravened the Act and, if so, what remedies are appropriate. The applicant began her employment with Downer as a personal assistant to the managing director, Mr Stephen Gillies, on 3 October 1997. Her employment was initially assessed and offered through a letter which outlined her duties and working hours. During her employment, Ms Laz had a young son and her husband worked evening lectures, impacting her availability. Despite satisfactory performance, her employment was terminated on 26 April 1998, a decision she contests as discriminatory.

The court addressed the legal issues concerning the validity of the termination and the applicability of penalties under the Act. It examined whether the termination was due to the factors prohibited by the Act and whether the employer’s conduct warranted a penalty. The court found that while the employer, Mr Gillies, was not fully considerate of Ms Laz's personal circumstances, the termination did not meet the threshold for a penalty. The court determined that the employer's actions, while insensitive, did not reflect a calculated disregard for the law or the employee’s rights. Consequently, the court decided not to impose a penalty.

The court concluded that the proceedings should be adjourned to allow the parties to draft orders reflecting the court’s decision. Further submissions on costs will be considered after the application has been determined in substance. The court invited the parties to advise on any further issues that need resolution before finalizing the orders.

Orders

Orders of the court

1. The proceedings be adjourned until 9.30 am on 20 October 2000 to enable the parties to bring in short minutes of order to give effect to these reasons.

Background

Background to the litigation

This is an application by Ms Louise Laz (“the applicant”) alleging her employment with Downer Group Ltd (“Downer”) was terminated in contravention of provisions of the Workplace Relations Act 1996 (Cth) (“the Act”). The relief sought is an order for reinstatement, an order requiring the payment of a sum equivalent to wages lost since the employment was terminated, compensation and the imposition of a penalty. The specific contravention which is alleged is that her employment was terminated for reasons including her family responsibilities and her pregnancy: see s 170CK(2)(f) of the Act.The background The following is an overview of events leading to these proceedings and reflects findings of fact on matters which were not contentious. I will later deal with contentious factual issues and some matters which require greater attention. The applicant commenced her employment with Downer on 3 October 1997 as personal assistant to the managing director of Downer, Mr Stephen Gillies. For the preceding four years the applicant had been the personal assistant of the chairman of the Terrace Tower Group of companies and, before that, had held a number of secretarial or executive assistant positions. The applicant’s engagement by Downer involved an initial assessment by Ms Caroline Squire who was the manager of a recruitment firm, Strategic Recruitment Services who interviewed the applicant on 22 September 1997. She was later interviewed by Mr Gillies. By letter dated 2 October 1997 the applicant was offered the position. That letter also contained proposed conditions of employment. It invited the applicant to signify her acceptance of the conditions by signing the letter. She did. The letter read:Dear LouiseWe have pleasure in offering you the position of “Personal Assistant” reporting to the Group Managing Director. As discussed, your role will involve a wide range of duties assisting the smooth running of the Corporate Office with direct responsibility to the Managing Director. It can be seen that the agreed hours were 8:30am to 5:30pm with a proviso which is of some importance in these proceedings at least as it was applied or implemented. At the time the applicant commenced employment with Downer, she had a son who was 18 months old. Her husband then had a job which involved giving evening lectures two nights per week. At that time, and for the period of the applicant's employment with Downer, the applicant's son attended the Leichhardt Family Day Care Centre. The contracted hours with the Centre were 8:30am to 6:30pm. The applicant’s evidence was that she left work at 6:00pm in order to pick up her son on the evenings her husband worked from the beginning of her employment with Downer. Consistent with the terms of the letter of 2 October 1997, the applicant served a period of probation. In a letter dated 23 April 1998 to the applicant, Mr Gillies said:Employment-Probation PeriodPlease accept this letter as confirmation that your performance as my Personal Assistance (sic) has been more than satisfactory, consequently I regard your employment status as permanent.As you are aware, Downer will shortly become a listed company, and the demands placed on you may been more than they have been to date. Therefore, it is my intention to review your salary by 30 June 1998 to better reflect the responsibilities imposed by this process.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MOORE J
In Fox v St Barbara Mines Ltd French J noted:… [penalties] are punitive in character and must be assessed having regard, inter alia, to the gravity of the conduct complained of, the existence of litigating circumstances and the need to deter the repetition of the conduct whether by the employer in question or generally.His Honour concluded, in that matter, that the termination was of an employee pursuing his lawful entitlements and involved a calculated and contemptuous disregard of the law and the right of a long-standing employee. It was, as his Honour described it, “a piece of industrial relations work… belong(ing) in the Stone Age” that should not be countenanced by the Court. He described the conduct of the employer as “at the high end of the range of seriousness”. A penalty of $9000 was imposed.This case does not have, in my opinion, any of the features referred to by French J. I accept that Mr Gillies was not sufficiently sensitive to the circumstances of the applicant and the difficulties (more often confronting women) associated with working and rearing young children. I accept that the particular needs of the applicant were raised by her when she was first employed. I also accept that the way Mr Gilles went about replacing the applicant as his personal assistant (by doing it while the applicant was on leave and not informing her, at the latest, as soon as a replacement had been selected) was likely to increase the hurt and embarrassment the applicant would suffer by being replaced. However the impression I gained of Mr Gillies when he gave evidence was that he did it this way to avoid having to confront the applicant, which was likely to be difficult and perhaps embarrassing for him, rather than because he was utterly indifferent to the impact his approach might have on the applicant. Taking these various matters into account, I am not satisfied that the termination of the applicant occurred in circumstances that would warrant the imposition of penalty. Accordingly I do not propose to make an order under s 170CR(1)(a) requiring payment of a penalty.Conclusion Counsel for the applicant foreshadowed an application for costs but asked that she be given an opportunity to address that question after the application had been determined in substance. Accordingly I will, when the orders giving effect of these reasons have been made, hear submissions from both counsel on the question of costs. Consistent with observations I have made to this point, the only order I propose to make at this stage is to adjourn the matter to 20 October 2000 to enable the parties to bring in short minutes to give effect to these reasons. I would invite the parties to advise my associate as soon as possible after these reasons have been published, if there are any further issues (identified in the reasons) that need to be determined before orders can be made.

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

Full text does not contain this section.