Librizzi v Flower Power Pty Ltd - [2000] FCA 971

FEDERAL COURT OF AUSTRALIA
Librizzi v Flower Power Pty Ltd [2000] FCA 971
ADMINISTRATIVE LAW – judicial review – review of decision of the Human Rights and Equal Opportunity Commission that a complainant under the Sex Discrimination Act 1984 had been discriminated against but not constructively dismissed by her employer on the grounds of her pregnancy – whether award of $2000 for hurt and humiliation so inadequate and erroneous as to call for reassessment
HUMAN RIGHTS – unlawful discrimination by employer on ground of pregnancy by changing employee’s conditions of employment and subjecting her to detriment – pressure to reduce hours of work by changing from full time to part time employment
INDUSTRIAL LAW – constructive dismissal – unpaid maternity leave
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Sex Discrimination Act 1984 (Cth) ss 7, 7B, 8, 14(2), 81(1)(b), 81(4) and 106
Evidence Act 1995 (Cth) s 43
Federal Court Rules Order 33 rule 3
Industrial Relations Act 1996 (NSW) s 57
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, referred to
Baltic Shipping Company v Dillon (1993) 176 CLR 344, referred to
Hall v Sheiban Pty Ltd (1989) 20 FCR 217, referred to
Perks v Willert (1974) 12 ALR 408, referred to
Burazin v Blacktown City Guardian (1997) 142 ALR 144, referred to
Commonwealth v Human Rights & Equal Opportunity Commission & Others (1999) 167 ALR 268, referred to
Freestone v Kozma (1989) EOC 92-249, referred to
Commonwealth v Human Rights & Equal Opportunity Commission & Others (1997) EOC 92-890, referred to
Librizzi v Flower Power Pty Ltd [1999] HREOCA 5, referred to
Health & Building Surveyors’ Association (NSW) v Strathfield Municipal Council (1987) 25 IR 359, referred to
Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – WA Branch (1995) 63 IR 1, referred to
Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47, referred to
Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587, referred to
Silberschneider v MRSA Earthmoving Pty Ltd (1987) 68 WAIG 33, referred to
Marriot v Oxford and District Co-operative Society Ltd (No. 2) [1970] 1 QB 186, referred to
Western Excavating (ECC) Ltd v Sharp [1978] QB 761, followed
Addis v Gramophone Co Ltd [1909] AC 488, referred to
Davies v Powell Duffryn Colleries Ltd [1942] AC 601, applied
DENISE LIBRIZZI v FLOWER POWER PTY LTD
N 307 OF 1999
EINFELD J
20 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 307 OF 1999

BETWEEN:

DENISE LIBRIZZI
Applicant

AND:

FLOWER POWER PTY LTD
Respondent

JUDGE:

EINFELD J

DATE OF ORDER:

20 JULY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. Application for judicial review dismissed.
Note: Settlement and entry of order is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 307 OF 1999

BETWEEN:

DENISE LIBRIZZI
Applicant

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 971
Decision Date: 20 JULY 2000

CaseChat Overview and Summary

The case of Librizzi v Flower Power Pty Ltd involved an applicant who alleged that she was constructively dismissed by the respondent, Flower Power Pty Ltd. The dispute was heard and determined by the Federal Court of Australia. The applicant argued that if she was indeed constructively dismissed, the Commission made an error in law by not assessing and awarding her damages for the economic loss she suffered as a result of the dismissal. The court found that if the Commission had erred in law in determining that the applicant had not been constructively dismissed, then it would also have been required to order a reassessment of the economic loss suffered by the applicant.

The legal issues that the court had to decide included whether the respondent's conduct constituted a significant breach going to the root of the contract of employment, and whether the applicant's resignation or the pressure to change her hours brought her employment to an end. The court considered the definition of "constructive dismissal" and the relevant criteria for determining whether an employee is entitled to leave due to the employer's conduct. The court also considered whether full-time employment throughout the applicant's pregnancy was an express or essential term of the contract, and whether the respondent's actions indicated that it did not intend to be further bound by the employment contract.

The court found that the Commission's conclusion that the applicant was not constructively dismissed was open to it on the evidence, and did not manifest a relevant error of law. The court also found that the Commission's view that full-time employment throughout the applicant's pregnancy was not an essential term of the contract was not erroneous. The court was not persuaded that the respondent's actions indicated that it did not intend to be any further bound by the employment contract after March/April 1996, and this viewpoint was open to the Commission on the evidence.

The final order of the court was to dismiss the application for judicial review. Settlement and entry of order was dealt with in Order 36 of the Federal Court Rules.

Orders

Orders of the court

1. Application for judicial review dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EINFELD J (dissent)

The applicant also submitted that if she was constructively dismissed, the Commission erred in law in failing to assess and award the applicant damages for the economic loss she suffered as a consequence. In my view, this submission is undeniable. If the Commission erred in law in determining that the applicant had not been constructively dismissed by the respondent, its own acknowledgment that the economic loss suffered as a result of the dismissal would also have been payable would require an order for a reassessment.ConclusionsLiability There is no challenge to the Commission’s finding that the respondent discriminated against the applicant by reason of pregnancy as defined by section 7(1) and that this discrimination was in breach of section 14(2)(d) because it subjected her to a detriment in the form of pressure to change to part time employment and, presumably, because it also changed or bore on her conditions of employment. Thus the only question for determination now is whether she was constructively dismissed. The term “constructive dismissal” was explained by Lord Denning MR in Western Excavating at 769: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. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract. It is immediately clear that the facts of this case as found by the Commission do not meet all of these criteria. Its conclusion that Mr Spiteri’s conduct entitled the applicant to leave the job because part time work did not suit her was in my view open to it on the evidence, as was its view that although unlawful discrimination, his attitude did not entitle the applicant to leave at once by reason of the pressure for the change. I agree with the Commission’s conclusion that full time employment throughout the applicant’s pregnancy was neither an express nor an essential term of the contract. It therefore does not constitute an error of law. Nor was it erroneous to find that if full time employment in a situation of this kind was essential to the contract, it was the applicant’s resignation not Mr Spiteri’s pressure to change her hours that brought her employment to an end. The Commission was not persuaded that the respondent’s actions indicated that it did not intend, after March/April 1996, to be any further bound by the employment contract. This viewpoint was open to the Commission on the evidence and does not manifest a relevant error of law.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 307 OF 1999

BETWEEN:	DENISE LIBRIZZI Applicant
AND:	FLOWER POWER PTY LTD Respondent
JUDGE:	EINFELD J
DATE OF ORDER:	20 JULY 2000
WHERE MADE:	SYDNEY