Librizzi v Flower Power Pty Ltd
[2000] FCA 971
•20 JULY 2000
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 57Australian 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, appliedDENISE LIBRIZZI v FLOWER POWER PTY LTD
N 307 OF 1999EINFELD J
20 JULY 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 307 OF 1999
BETWEEN:
DENISE LIBRIZZI
ApplicantAND:
FLOWER POWER PTY LTD
RespondentJUDGE:
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
ApplicantAND:
FLOWER POWER PTY LTD
Respondent
JUDGE:
EINFELD J
DATE OF ORDER:
20 JULY 2000
WHERE MADE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
On 14 April 1999 Denise Librizzi (applicant) filed an application in this Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Judicial Review Act) seeking judicial review of a decision of the Human Rights and Equal Opportunity Commission (Commission) delivered on 16 March 1999. In the proceedings before the Commission, the applicant alleged that her former employer Flower Power Pty Ltd (respondent) had discriminated against her on the basis of her pregnancy in the form of a change in her duties after her pregnancy became known, as well as pressure applied to her by the respondent’s finance and administration manager, Michael Spiteri, to reduce her employment from full time to part time. This pressure was said to have so affected her work environment and personal outlook that it necessitated her resignation, thereby amounting to her constructive dismissal by the respondent.
The Commission upheld the applicant’s complaints of discrimination as contraventions of paragraphs (a) and (d) of section 14(2) of the Sex Discrimination Act 1984 (SD Act), and awarded the applicant $2000 by way of damages for the hurt and humiliation so caused. However, the Commission dismissed the applicant’s complaint that she had been constructively dismissed in contravention of paragraph (c) of the same subsection.
The applicant now seeks orders setting aside the Commission’s finding that the respondent did not constructively dismiss her and its award of damages as insufficient. The applicant also seeks judicial review of what is said to be a further ‘part’ of the Commission’s decision, viz. that the applicant knew that she would not be entitled to maternity leave at the time her baby was born. The Court’s jurisdiction to entertain a judicial review application in these circumstances is not disputed by the parties and in any event is clear from the decisions of Justice Sackville in Commonwealth v Human Rights & Equal Opportunity Commission & Others (1997) EOC 92-890 and the majority of a Full Court of this Court in Commonwealth v Human Rights & Equal Opportunity Commission & Others (1999) 167 ALR 268 (Black CJ and Tamberlin J, Katz J dissenting).
At the first directions hearing in these proceedings, on 2 June 1999, the parties agreed that the proceedings could be dealt with on the transcript of evidence taken and the exhibits tendered before the Commission. That this is a valid course of dealing with proceedings commenced in this Court to enforce, rather than to review, decisions of the Commission is made clear by section 83A(5) of the SD Act. Notwithstanding the absence of a comparable provision in respect of proceedings commenced in this Court for the purpose of reviewing a decision of the Commission, I directed by consent that this course be adopted in this case. The fact that the parties do not dispute the accuracy of the transcript or the exhibits, and the expense and delay that a full hearing would necessarily have occasioned, were all matters that supported the exercise of my discretion in this manner: see Order 33 rule 3 of the Federal Court Rules.
At the same directions hearing, the Commission entered a submitting appearance but its presence in the proceedings was unnecessary as the respondent was a full fledged contradictor. I therefore ordered that the Commission be struck out as a respondent, with no order as to costs. I also set a timetable for the filing of written submissions on the case, including on whether there was a need for oral submissions. These submissions were due to be completed by 22 July 1999. The fact that they were only completed on 17 April 2000 explains the delay in the publication of this judgment. After reading the written submissions and considering the views of the parties on the need for oral argument, I determined that the Court would not be further assisted by this additional expense and delay, especially as oral evidence had been voluntarily foregone and no suggestion was made that oral argument would offer an opportunity for success that had not already been adequately afforded. The size and content of this dispute and the length of time since the relevant events took place were other factors taken into account in this respect.
The complaint of discrimination
The particulars of the discrimination alleged and found are set out in detail in the Commission’s decision: Librizzi v Flower Power Pty Ltd [1999] HREOCA 5. The parties do not contend for different versions of the events to those put before the Commission, nor do they seek to challenge the findings of the Commission that the applicant was unlawfully discriminated against on the basis of her pregnancy. It is therefore only necessary to note, by way of introductory background, the major circumstances of the discrimination.
The respondent runs a number of plant and flower nurseries throughout the greater Sydney metropolitan area employing some 200 people. On 29 November 1995 it advertised for an “Accounts Clerk/Data Entry” in a local newspaper the Liverpool Leader specifying the nature of the position as “Hours 8.30 to 4.30 … 3 to 5 days per week”. The applicant answered the advertisement and was subsequently employed by the respondent. The applicant’s letter of employment dated 7 December 1995, signed on behalf of the respondent by Mr Spiteri, gave the applicant’s job title as “Debtor/Creditor Clerk” and specified her hours of duty as “Five (5) days … 8.30am – 4.30pm”. The letter provided for a three month probation period during which either party was entitled to terminate the agreement on one day’s notice. After the probationary period one week’s notice of termination was required.
The applicant’s initial tasks primarily related to ‘debtors’ work, although she was also responsible for performing some tasks in ‘creditors’ work, as a relief operator of the switchboard at the main reception, and in the processing and balancing of petty cash. In late January 1996 the applicant learnt that she was pregnant and disclosed her pregnancy to fellow employees. Mr Spiteri was informed of the applicant’s pregnancy in early February 1996 on his return from an overseas trip.
On 1 March 1996 a new employee, Dianne Jovicic, joined the respondent’s financial control and management team as an “Accounts Clerk”. Her letter of employment, dated 20 February 1996 and again signed on behalf of the respondent by Mr Spiteri, provided her hours of duty as “Mondays & Fridays. 8.30 am to 4.30 pm. With a veiw (sic) to offering full time work in the near future.” At the commencement of her employment, Ms Jovicic was placed at a small desk adjoining the applicant’s. She was given the ‘debtors’ work previously performed by the applicant, who was directed to perform tasks on ‘creditors’ work. At this time, the applicant was also relieved of her occasional duties relieving on the main switchboard and in relation to the petty cash. Her supervisor, Brian Smedley, proffered two reasons for this change. The first of these was problems with her work performance, and the second was that the ‘debtors’ work involved climbing a step-ladder to obtain files, which Mr Smedley said that he and Mr Spiteri felt was inappropriate for a pregnant employee to perform.
Mr Spiteri did not give these same reasons for the change. He said that the applicant was relieved of her switchboard duties following her complaint that it was causing interruptions to and thereby affecting her work in the ‘debtors’ area. The Commission also found, as another reason for the change, that Mr Spiteri had been motivated by a stereotypical view of pregnancy that he had developed as a product of his wife’s then recent pregnancy experience.
Between early March 1996 and mid-April 1996 the applicant and Mr Spiteri had three meetings to discuss her work performance, the formal terms of her employment and the effect that her pregnancy would have on them. Mr Smedley also attended the first of these meetings. The nature of the discussion at the first two of these meetings, even their timing, was vehemently contested by the parties before the Commission. The Commission found that the first meeting took place in early March, at approximately the time the applicant’s probationary period of employment concluded, and took the form of a probationary review. Issues discussed were found to include the applicant’s work performance and a proposed change to part time work. The Commission also found that the applicant requested a pay rise during the course of this first meeting, which was refused by Mr Spiteri. According to the Commission, the second meeting took place on or around the Easter weekend in early April 1996. It determined that the question of when the applicant would move to part time work was again discussed, but that performance issues were not discussed in depth.
The parties agreed that the third meeting occurred on 17 April 1996 and canvassed the applicant’s work performance and the proposal of part time employment. The applicant orally tendered her resignation during the course of that meeting. The Commission accepted the applicant’s account that this meeting was the first occasion that her work performance was discussed in any significant detail. The parties also agreed that Mr Spiteri refused the applicant’s resignation and requested her to think about the matter overnight. The applicant returned to work the next morning on 18 April 1996 and furnished a written resignation to Mr Spiteri, the first paragraph of which read:
In view of the constant pressure placed on me to drop from full time to part time since I have become pregnant, I have decided it is in the best interests of my health to resign from my current full time position as office person at Flower Power Moorebank.
Mr Spiteri accepted the written resignation in a letter to the applicant dated 19 April 1996 which stated in part:
……
During that same review [the first meeting in March] I suggested that it might be appropriate that you reduce your days from 5 to between 2 and 3 days to avoid any undue pressure or potential complications with your pregnancy.You agreed that reducing your hours would be appropriate under the circumstances. At no time was any pressure placed on you to reduce your hours, however I did ask you on at least three occasions to make a decision so that I could make alternative arrangements.
……On 18 April you tendered a written resignation (enclosed) which in my view is somewhat bitter and does not address any of the performance issues raised above. I accept your resignation however would like to make the following comments;
(i)I do not agree that constant pressure was placed upon you to reduce your number of days. We were merely following up what was discussed and agreed in your March review.
……
The admissibility of this letter, replete with statements of a self-serving nature, is a difficult question. However, neither of the parties objected to its tender before the Commission or this Court. As the letter was written only two days after the final meeting and about six weeks since the first conversation at issue, the nature of those conversations would ensure that they were fresh in Mr Spiteri’s mind at the time he wrote it. Moreover, Mr Spiteri gave evidence to the Commission that the applicant was the first person to raise the prospect of her moving to part time employment. Hence the applicant could also have sought to use the letter as a prior inconsistent statement of Mr Spiteri subject of course to the requirements of section 43 of the Evidence Act 1995 (Cth). If such an approach had been adopted, it would have been difficult for the respondent to resist its admission into evidence. In the events which have occurred, the letter is of little relevance to the matter before the Court now.
The applicable statutory provisions
Section 7 of the SD Act, headed “Discrimination on the ground of pregnancy or potential pregnancy”, is a definitional provision which sets the parameters of what amounts to discrimination on the ground of pregnancy:
(1)For the purposes of this Act, a person (the "discriminator") discriminates against a woman (the "aggrieved woman") on the ground of the aggrieved woman's pregnancy or potential pregnancy if, because of:
(a) the aggrieved woman's pregnancy or potential pregnancy; or
(b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or
(c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant;
the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.
(2)For the purposes of this Act, a person (the "discriminator") discriminates against a woman (the "aggrieved woman") on the ground of the aggrieved woman's pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are also pregnant or potentially pregnant.
(3)This section has effect subject to sections 7B and 7D.
Sections 7B and 7D, which operate as limits on the ambit of the definition provided in section 7, are respectively headed “Indirect discrimination: reasonableness test” and “Special measures intended to achieve equality”. Only section 7B could have any application to this case:
(1)A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection … 7(2) if the condition, requirement or practice is reasonable in the circumstances.
(2)The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.
Section 8, headed “Act done for 2 or more reasons”, is of relevance because of the Commission’s finding that factors other than the applicant’s pregnancy had contributed to the pressure Mr Spiteri placed on the applicant. This section relevantly provides:
A reference in subsection … 7(1) … to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.
Section 14(2) of the SD Act is the “offence” provision. Drawing upon the definition provided in section 7, it prescribes what amounts to unlawful discrimination against an employee:
It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:
(a)in the terms or conditions of employment that the employer affords the employee;
(b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
The liability of the respondent for the discriminatory conduct of Mr Spiteri, which was not contested, is governed by section 106 of the SD Act. Beneath the heading “Vicarious liability etc”, this provision states:
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Divison 1 or 2 of Part II); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
The Commission’s findings – Liability
The Commission found that the question of who first raised the issue of the applicant moving to part time employment was “difficult to determine (and arguably not very relevant anyway)”. What was relevant in the Commission’s opinion was the pressure on the applicant, during and as a product of the three meetings, to change her hours which alone formed the basis of the Commission’s decision that the respondent had discriminated against the applicant on the grounds of her pregnancy. This conclusion was reached notwithstanding the Commission’s additional finding that Mr Spiteri’s stereotypical view of pregnancy and Ms Jovicic’s availability and desire to progress to full time employment were also factors that led Mr Spiteri to pressure the applicant to change her employment conditions.
In summary, the Commission found that of all the factors that motivated Mr Spiteri to apply pressure to the applicant to move to part time work, the dominant factor was her pregnancy. This finding made section 8 an irrelevant consideration and led the Commission to conclude that the applicant had been discriminated against by Mr Spiteri “on the ground of” her pregnancy within the ambit of section 7.
The next question, not now disputed, was whether the discrimination was unlawful in the circumstances. As there was no evidence led or matter raised suggesting that the discrimination was reasonable in the circumstances, section 7B of the SD Act was not activated. The issue was simply whether the discrimination was unlawful as a breach of section 14(2). Although the applicant’s formal terms and conditions of employment had not changed as a product of the discrimination, the Commission found that the pressure applied to the applicant by Mr Spiteri amounted to discrimination in the conditions of her employment (paragraph (a)) and by subjecting her to a detriment (paragraph (d)). In the Commission’s view, it was enough that the impact of the pressure applied to the applicant had changed “the nature of her work environment or the conditions of her employment”. As to the respondent’s vicarious liability for Mr Spiteri’s conduct, also no longer disputed, its failure to lead any evidence that it had taken all reasonable steps to prevent Mr Spiteri from performing such discriminatory acts made the exception in section 106(2) of the SD Act irrelevant to the case.
The Commission was not satisfied that the applicant’s resignation could be construed as her constructive dismissal in contravention of section 14(2)(c) of the SD Act. It could not find anything in the evidence that constituted a unilateral variance of the applicant’s employment contract by the respondent or an assertion by the respondent of a clear intention not to perform the existing contract: Marriot v Oxford and District Co-operative Society Ltd (No. 2) [1970] 1 QB 186; Perks v Willert (1974) 12 ALR 408; Silberschneider v MRSA Earthmoving Pty Ltd (1987) 68 WAIG 33; Health & Building Surveyors’ Association (NSW) v Strathfield Municipal Council (1987) 25 IR 359. The Commission found that the applicant could have continued her employment with the respondent up to and after the birth of her child had she not resigned:
Ms Librizzi was not dismissed in the strict terms of subparagraph (c) of the subsection. Further, I am not satisfied that her resignation can be construed as a constructive dismissal. I accept Mr Spiteri’s evidence, supported by that of other employees, that Ms Librizzi could have continued her employment with the respondent up to and after the birth of her child. It is true that Mr Spiteri was keen for her to move to part-time work earlier rather than later in her pregnancy.
However, this does not, in my view, constitute a unilateral variance of her employment contract such that Ms Librizzi could legitimately form the view that she (sic) was no longer bound [by] it. For this to occur the variation to Ms Librizzi’s working conditions must be such that it asserts a clear intention to no longer perform the existing contract……Whilst Mr Spiteri may have strongly wanted Ms Librizzi’s contract of service to change to that of one of part-time work (sic), it is not conceded here that this change eventuated.
As to the matter of maternity leave, the Commission said:
Ms Librizzi would have realised that when her baby was born she would not be entitled to maternity leave, and would perhaps have been prepared to negotiate on [the move to part time work], both to relieve pressure of work on herself and to maintain a position with the company. However, Ms Librizzi felt it was her decision, to be raised later in the pregnancy.
The Commission’s findings – Damages
Subsections (1)(b)(iv) and (4) of section 81 of the SD Act provide:
(1)After holding an inquiry, the Commission may:
……
(b) find the complaint substantiated and make a determination, which may include any one or more of the following:
……
(iv)a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent;
……
(4)The damage referred to in paragraph (1)(b) includes injury to the complainant's feelings or humiliation suffered by the complainant.
The Commission’s award of $2000 was given for hurt and humiliation caused by Mr Spiteri’s discriminatory conduct. It said:
I have determined that, although Ms Librizzi did suffer pressure to change the status of her work to part-time (sic) she was not constructively dismissed by the respondent. Specific damages for loss of wages, moving to Queensland, and the need to take money from superannuation funds can therefore not flow because Ms Librizzi chose to resign from her position. The only issue that I can consider is that of general damages for hurt and humiliation caused by Mr Spiteri’s actions.
……
In the circumstances of this case, and taking similar decisions in this area into account, I am satisfied that an appropriate amount of damages would be $2000.In other words, once the Commission had rejected the applicant’s claim of constructive dismissal, other claims such as for loss of income, the need to take money from superannuation funds and relocation from Sydney to Queensland said to have been necessitated by her loss of income after the end of her employment because of the purported lower cost of living in Queensland, were found to be not recoverable.
The Commission’s assessment was adversely affected by the applicant’s failure to lead any evidence of a professional nature to corroborate her claims:
Mr Spiteri’s actions had a clear impact on Ms Librizzi. I have already said that I accepted both her and Mr Chapman’s evidence on how she changed, no longer enjoying her work, becoming quiet and reserved, and crying every morning before going to work. No evidence was led of any medical treatment or counselling which she may have received. This may well be because none was received. Whilst this does not mean that I cannot award damages, it does lessen the amount of damages which could be available.
The dispute in this Court
The applicant alleges that the Commission erred in law in finding that the applicant was not constructively dismissed by the respondent, in observing that the applicant “would have realised that when her baby was born she would not be entitled to maternity leave”, and in determining that the appropriate award of damages in this case is $2000. In my view the maternity leave submission has no substance at all but clearly, if either of the other errors of law was found, it will be sufficiently causally related to the Commission’s decision so as to entitle the applicant to an order of review: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 (Mason CJ) and 384 (Toohey and Gaudron JJ).
Liability
The applicant’s submission in support of her claim of error was that the Commission misdirected itself as to the correct test for constructive dismissal by holding that it could only be found where an employer has actually changed an employee’s contract. The true test, it was said, is that an employee is entitled to be considered as discharged from any further performance of an employment contract, and hence as constructively dismissed, whenever an employer shows by conduct an intention no longer to be bound by one or more of the essential terms of the contract: Western Excavating (ECC) Ltd v Sharp [1978] QB 761.
Two distinct terms were relied on. The employment contract was said first to provide expressly for full time work (the express term). The second was said to be the well established implied term of all employment contracts that an employer will not without reasonable cause conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the employee and employer (the implied term): Burazin v Blacktown City Guardian (1997) 142 ALR 144. In order to give the widest application to the submission, I have assumed that the applicant’s position is that the existence and breach of either of these terms will be sufficient to entitle the applicant to a finding that she was constructively dismissed by the respondent.
On the express term, the respondent’s fundamental submission was that the applicant’s contract was not varied unilaterally, nor repudiated in any way, and that at all times the respondent intended to, and did in fact, honour the contract of employment: for example, the Commission’s finding, earlier extracted, that the applicant “could have continued employment with the respondent up to and after the birth of her child”. The respondent secondly contended that the Commission’s finding was consistent with what it said was the real, or at least primary, reason for the applicant’s resignation – her planned move to Queensland with her partner. This contention relied upon aspects of the evidence presented to the Commission but appeared to challenge or contradict the Commission’s finding that:
… what had been a long-term plan [to relocate from Sydney to Queensland] gradually became more attractive as the pressures at work increased … the actual date was not determined by [the applicant] and her partner until the time of, or very close to the time of, her resignation from the respondent.
The respondent made four submissions in relation to the allegation that it breached the implied term. The first was that such a claim, whilst argued, was not pleaded. However, no prejudice was claimed from the failure to plead this matter and I see no reason why the applicant’s contention should be dismissed on such a basis. The second submission was that Burazin and Addis v Gramophone Co Ltd [1909] AC 488, followed in Baltic Shipping Company v Dillon (1993) 176 CLR 344, requires the applicant to prove the respondent’s liability in tort – rather than under the SD Act – before any damages can be awarded for the hurt and humiliation suffered because of the respondent’s breach of contract. This mistaken submission is answered by the SD Act itself. The third submission was that it is “unlikely” that a claim of this nature is capable of being founded under the SD Act, which is said to be “strict in its prescription of the grounds upon which discrimination can be found to have occurred”. For the reasons given by the Commission, I reject this contention as well. Finally, the respondent submitted that the facts of the case do not disclose any breach on its part of the implied term.
Damages
The applicant first submitted that the Commission erred in law in finding that her failure to lead evidence of any medical treatment or counselling had lessened the amount of damages that could be awarded in this case. The effect of this finding was said to implicitly require any claim for general damages to be supported by specialist professional evidence before an appropriate award could be declared consistent with the manner in which the Commission is to conduct its inquiries pursuant to section 77 of the SD Act and my decision as the then President of the Commission in Freestone v Kozma (1989) EOC 92-249. As such, the submission amounts to a contention that the Commission made an error of law entitling the applicant to an order for review: see s 5(1)(f) of the Judicial Review Act.
The applicant said secondly that despite accepting evidence suggesting that she had suffered significant psychological damage as a result of Mr Spiteri’s conduct, the Commission erred in law in that it failed to make provision for that psychological injury in its award of damages: Burazin; Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – WA Branch (1995) 63 IR 1; Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47; Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587; Hall v Sheiban Pty Ltd (1989) 20 FCR 217.
Thirdly the applicant said that the Commission failed to consider two relevant circumstances of the case in its assessment of damages, viz. that Mr Spiteri had reconstructed his evidence to suit the respondent’s case, and that the applicant was pregnant at the time she was forced to suffer the relevant discrimination. I have considered this submission as an assertion of failure to take into account relevant considerations: subss (1)(e) and (2)(a) of s 5 of the Judicial Review Act.
The applicant also claimed that she was entitled to be compensated for income she would but for the conduct of Mr Spiteri have earned with the respondent during the time up to and following the maternity leave she would have taken. Section 57 of the Industrial Relations Act 1996 (NSW) only grants an employee the right to parental leave after at least 12 months of continuous service with an employer. The applicant submitted that despite her short period of employment with the respondent and the resulting absence of a statutory entitlement to maternity leave, she would have been granted unpaid maternity leave as a matter of course if her employment had not ceased. Furthermore, the applicant contended that if an employer fails to give a pregnant employee unpaid maternity leave and dismisses her, the employer is in breach of section 14(2)(c) of the SD Act. The Commission’s finding is said by the applicant to ignore this consequence. The Commission actually appeared to treat the maternity leave question as going to the issue of constructive dismissal. If so, it is my view that the submission now made must fail, firstly because as argued it does not appear to raise a ground of review and secondly because the two subjects are unconnected in any event.
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.
Conclusions
Liability
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.
Nor do the Commission’s findings of fact establish a breach of the implied term separate to the unlawful discrimination itself which the Commission held, and I agree, did not amount to constructive dismissal. Clearly the statute does not constitute all employment discrimination as entitling an employee to resign (see eg s.81(1)(b)) which means that each case must be determined on its own facts. Unless a particular provision or section of the Judicial Review Act can be pointed to and made good, it will be rare that judicial review will permit an alternative finding on such a matter to that of the fact finding body. I have been able to find no ground for reviewing the Commission’s conclusions under this heading.
Damages
I have said earlier that the question of damages is obviously affected, and affected significantly, by the finding that the applicant was not constructively dismissed. Even so, the applicant’s submissions amounted to a claim that the award of damages was “mean” and wholly inadequate. Whatever its own assessment, judicial review will not normally entitle a Court to interfere with an award of damages, however small or large, unless there was a major error of concept or approach. This principle emerges from the classic statement of Lord Wright in Davies v Powell Duffryn Colleries Ltd [1942] AC 601 at 617:
In effect the court, before it interferes with an award of damages, should be satisfied that the [Commission] has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered.
In case the matter is suggested to go to this issue as well, there is in my opinion, as with the constructive dismissal issue, no substance in the applicant’s submissions concerning maternity leave as affects the consideration of damages. There was no legal entitlement to paid maternity leave and whether unpaid leave would have been given or not does not affect the award of damages. On the other hand, there are certainly grounds for believing that this assessment of damages was very low indeed. Notwithstanding the finding of psychological damage, the award presumably reflected the Commission’s reaction to the oral evidence in the case, especially the applicant’s and, as the Commission itself intimated, the absence of any specialised medical or psychological evidence to support the applicant’s claims. I agree with the applicant that it was not essential to have called such evidence and that its absence did not absolve the Commission from performing its duty as the tribunal of fact to make as full and proper an award of damages as the evidence, commonsense and ordinary human experience would allow. However, the absence of any supporting specialised evidence did leave the applicant with the possibility that if the Commission was not especially impressed with her claims of hurt, it might regard them as not severe and her damages award would therefore be low. The Commission was also entitled to assess Mr Spiteri’s conduct as more misguided and misplaced than aggressive and falsely reconstructed such that, together with its findings as to the limited nature and time frame of the pressure and his generally good intentions, the suffering of the applicant could be found to be minimal. The applicant’s claim that her pregnancy should entitle her to greater consideration in the assessment is argumentative and unhelpful.
The applicant did not ask the Court to substitute its own assessment of damages for the award of the Commission but to declare that the Commission’s assessment was legally erroneous and remit the matter to the Commission for reassessment, with or without a rehearing. Such an outcome would require that, consistent with the Judicial Review and SD Acts, I identify at least one error of law made by the Commission, chosen presumably from those suggested in argument. For the reasons I have given none of these arguments can be sustained.
Order
The application for judicial review will be dismissed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO. Associate:
Dated: 20 July 2000
Counsel for the Applicant: Ms S. Winters Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Respondent: Mr J. de Meyrick Solicitor for the Respondent: Carneys, Lawyers Written Submissions completed: 17 April 2000 Date of Judgment: 20 July 2000
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