Mahajan v Burgess Rawson & Associates - [2017] FCCA 1560

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHAJAN v BURGESS RAWSON & ASSOCIATES
PTY LTD

[2017] FCCA 1560

Catchwords:
FAIR WORK – Adverse action – dismissal because of pregnancy, because of taking personal and annual leave and because of being absent due to illness or injury.

Legislation:
Fair Work Act 2009, ss.340, 342(1), 351(1), 352, 360, 361(1)
Fair Work Regulations 2009, r.3.01(2)(3)

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32
Browne v Dunn (1983) 6 R 67
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; (2014) 314 ALR 1; (2014) 88 ALJR 980; [2014] HCA 41
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; (2015) 147 ALD 528; (2015) 320 ALR61; [2015] FCAFC 25
General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605; (1976) 51 ALJR 235
National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; [2013] FCA 451
New South Wales Police Force v Winter [2011] NSWCA 330; (2011) DDCR 69

Applicant:

TIFFANY MAHAJAN

Respondent:

BURGESS RAWSON & ASSOCIATES PTY LTD (ACN 005 272 337)

File number:

MLG 2651 of 2016

Judgment of:

Judge Riley

Hearing date:

5 May 2017

Date of last submission:

5 May 2017

Delivered at:

Melbourne

Delivered on:

6 July 2017

REPRESENTATION

Counsel for the applicant:

Matthew Minucci

Solicitors for the applicant:

Clayton Utz

Counsel for the respondent:

Toby Borgeest

Solicitors for the respondent:

Abrahams Meese Lawyers

DECLARATIONS

The respondent contravened:
(a)s.340 of the Fair Work Act 2009 (“the Act”), by dismissing the applicant because she took annual leave and personal leave;
(b)s.351 of the Act, by dismissing the applicant because she was pregnant; and
(c)s.352 of the Act, by dismissing the applicant because she was temporarily absent from her work on account of illness or injury.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2651 of 2016

TIFFANY MAHAJAN

Applicant

And

BURGESS RAWSON & ASSOCIATES PTY LTD (ACN 005 272 337)

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application in which the applicant alleges that the respondent dismissed her from her employment:
a)in breach of s.340 of the Fair Work Act 2009 (“the Act”), because she exercised her workplace rights to take:
i)annual leave; and/or
ii)personal leave;
b)in breach of s.351 of the Act:
i)because she was pregnant; and/or
ii)because of her sex; and
c)in breach of s.352 of the Act, because she was temporarily absent from her work on account of illness or injury.
Mr Perrin, who made the decision on behalf of the respondent to terminate the applicant’s employment, and who is a director of the respondent, denied that he decided to dismiss the applicant from her employment because she was pregnant, intended to take maternity leave or had taken sick leave from time to time[1]. Mr Perrin said that the respondent dismissed the applicant from her employment because:
a)her performance was not satisfactory; and
b)she was not consistently punctual in her attendance.
[1] Affidavit of Timothy John Perrin sworn on 26 April 2017
The respondent is a commercial property real estate agency. Part of the respondent’s business involves valuations. The valuations team consisted of Mr Perrin, as the leader of the team, two valuers (one of whom was employed full-time and the other of whom was employed on an as needs basis) and an administrative assistant.
The applicant was employed in the administrative assistant position, commencing on 7 December 2015. Her role required her to proof read valuation reports, ensuring that there were no spelling or grammatical errors, and format the reports.
In or about late January 2016, the applicant learned that she was pregnant. The applicant told Mr Perrin about her pregnancy on 6 or 7 March 2016. On 3 June 2016, the last working day before her probation period expired, the respondent dismissed the applicant from her employment.
Following her marriage, the applicant changed her family name from “Reddy” to “Mahajan”.

Background

After the applicant commenced her employment with the respondent on 7 December 2015, she had a two week handover with her predecessor in the role. The office was closed between Christmas and 11 January 2016. During January 2016, Mr Perrin spoke to the applicant informally about the need for her to be more diligent and gave her instructions about the correct presentation of business documents.
At a meeting of the directors of the respondent on 22 January 2016, Mr Perrin reported that the applicant was “just managing”. The minutes of that meeting also record, in relation to another employee, that:
Bec is pregnant and her attendance record is bad.
On 6 or 7 March 2016, the applicant had her three-month probation meeting with Mr Perrin and Mr Silvester, who was a senior valuer employed by the respondent. Mr Perrin said that, during that meeting, he told the applicant that she appeared to be “going alright”. He conceded in cross-examination that he did not raise any performance concerns with the applicant at her three-month probation review and said words to the effect that he was happy with how she was going.
The applicant said that, in fact, Mr Perrin praised her for her work ethic. The applicant also said that Mr Perrin said that she would be starting one day per week in the respondent’s accounts department and that would involve a pay increase. The applicant understood this to mean that she had been performing her job well. The applicant also said that Mr Perrin said that she should try to keep track of the reports, so that he could know which ones had been sent to clients and which ones had not.
Towards the end of the meeting, the applicant told Mr Perrin and Mr Silvester that she was pregnant. Mr Perrin conceded in cross-examination that he was surprised by that news. The applicant said that Mr Perrin asked her when she was due and when she would be taking maternity leave. She said she was due on 15 September 2015 and would be taking maternity leave from 1 September 2015.
Between the three month probation meeting on 6 or 7 March 2016 and when she was dismissed on 3 June 2016, the applicant took a total of seven days of sick leave due to morning sickness. Those days were:
a)8, 9 and 10 March 2016;
b)15 March 2016, when the applicant vomited on the way to work and then asked Mr Perrin if she could have the rest of the day off;
c)a half day on 19 April 2016;
d)6 May 2016;
e)a half day on 11 May 2016; and
f)26 May 2016.
Mr Perrin acknowledged in cross-examination that, as far as he was aware, the applicant provided medical certificates for her sick leave.
In addition, the applicant took four days of annual leave to attend medical appointments related to her pregnancy. The annual leave days were on:
a)17 and 31 March 2016;
b)27 April 2016; and
c)25 May 2016.
When the applicant took sick leave, she sent texts to Mr Perrin to let him know, and also emailed Ms Pinney, who looked after payroll. In relation to her annual leave on 17 March 2016, Ms Pinney told the applicant that she had no annual leave left and would need to take leave without pay. Ms Pinney also queried whether the applicant needed the entire day for a medical appointment. The applicant considered that she did need the whole day because her appointments were at a hospital a long drive from her home and it was busy so her actual appointment time could be delayed.
The applicant acknowledged that she was late for work six or seven times between March 2016 and June 2016. She said that, on most of these occasions, she was only five or 10 minutes late and would make up the time at the end of the day. Mr Perrin said that he understood the applicant’s lateness on those occasions was due to public transport difficulties.
Mr Perrin conceded in cross-examination that he raised no performance concerns with the applicant during April 2016 and had therefore not given the applicant an opportunity to correct her performance. The board of the respondent met on 29 April 2016. The minutes of the board meeting include a note as follows:
Tiffany 6 months 6 June. Situation needs to be dealt with.
Mr Perrin said that, at board meetings, staffing issues were routinely discussed. Mr Perrin said that, at the board meeting on 29 April 2016, he said that:
a)he was disappointed that the applicant had not achieved a satisfactory standard of performance, and that there had been a pattern of failures to attend work punctually; and
b)he was losing confidence that the applicant’s performance and punctuality would improve.
Mr Perrin said that one or more of the other board members at the board meeting on 29 April 2016 said that the situation with the applicant would need to be resolved before her probation period expired on 6 June 2016 and Mr Perrin agreed.
Interestingly, the minutes of the board meeting on 29 April 2016 specifically say that one staff member was not firing at this stage (presumably meaning he was not very energetic) and another staff member was MIA again and taken off property listings (presumably meaning that he was missing in action, in the sense of not performing, and was moved as a result). There was no performance based or other explanation in the minutes of why the situation regarding the applicant needed to be dealt with.
The board of the respondent met again on 26 May 2016. The minutes of the board meeting include a note as follows:
Tiffany 6 months 6 June need to arrange a meeting.
Mr Perrin said that, at the board meeting on 26 May 2016, he told his fellow directors that he would arrange a meeting with the applicant prior to 6 June 2016. Mr Perrin said that, by that statement, he intended to communicate that he would terminate the applicant’s employment prior to 6 June 2016. Mr Perrin said that his fellow directors were in agreement with that course of action and agreed that Mr Venables, another of the directors, would participate in the meeting.
Mr Perrin said that, by 26 May 2016, he had decided to terminate the applicant’s employment. He said that the reasons for that decision were:
a)the applicant’s poor performance, particularly in relation to her role of formatting valuation reports and ensuring consistency in valuation figures in valuation reports; and
b)the applicant’s poor punctuality.
Mr Perrin said that the facts that the applicant was pregnant, intended to take maternity leave, and had taken sick leave from time to time formed no part of the reasons for his decision. Mr Perrin said that another employee in 2015 had notified him during her probation period that she was pregnant and intended to take maternity leave. He said that her maternity leave was readily accommodated.
Mr Perrin conceded in cross-examination that he did not formally raise with the applicant any issues regarding her performance or punctuality prior to making the decision to dismiss her. He also conceded that some of the applicant’s errors were trivial but maintained that others were more serious. He said that she constantly made formatting errors and also made typographical errors.
Mr Perrin conceded in cross-examination that, during the dismissal meeting, he did not detail any concerns he had with the applicant’s performance but he did mention that she was unreliable.
Mr Perrin said in re-examination that he frequently spoke to the applicant about formatting errors. He said that he spoke to her several times a week about errors. He said that when he said that the applicant was unreliable, he meant that he was unable to rely on her correctly formatting reports.
Mr Perrin also conceded in cross-examination that on each of the five occasions that the applicant was late for work, she sent a text massage explaining her transport difficulties. Mr Perrin also conceded in cross-examination that at no point did he raise with the applicant that her five late starts were problematic or suggest to her that he doubted her reasons for being late on those occasions.
Mr Perrin denied in cross-examination that what had really bothered him was the days off that the applicant took. He denied that he described her as unreliable because of her days off, rather than because of her lateness on five occasions.
On 2 June 2016, the applicant sent Mr Perrin a text at 8:43am, saying that she had been vomiting but would be at work before 10. Shortly after that, the applicant noticed that fluid was leaking from her vagina. The hospital advised her to attend the hospital immediately. The applicant telephoned Mr Perrin at about 9.20am. She said she had leaking fluid and was very concerned about her pregnancy. She said she would not be coming into work and would be going to the hospital. Mr Perrin expressed concern and asked to be advised how things went.
The applicant attended the hospital. After being seen by medical staff, she was sent home at about 3pm. At 5.09pm, the applicant sent Mr Perrin a text saying that everything was fine and she would be at work the next day, Friday 3 June 2016.
The applicant did attend work on Friday 3 June 2016. That was the last working day before her probation period was due to expire on Monday 6 June 2016.
At 4pm on 3 June 2016, Mr Perrin asked the applicant to attend a meeting in the meeting room in five minutes. The applicant did so and found that the meeting was with Mr Perrin and Mr Venables.
The applicant claimed that Mr Perrin said:
Due to your current circumstances, your employment has become unreliable and we have decided not to continue with your employment.
Mr Perrin denied using the words, Due to your current circumstances, or anything like those words. Mr Perrin reiterated that the applicant’s pregnancy formed no part of the reasons to terminate the applicant’s employment. Mr Venables said that he was quite certain that Mr Perrin did not say any words to the effect of Due to your current circumstances during the meeting on 3 June 2016.
Mr Perrin conceded in cross-examination that he did not say anything in that meeting about concerns with the applicant’s performance. He reiterated that he said in the meeting that the applicant was unreliable. He maintained that he absolutely did not use the word “circumstances”.

Legislative provisions

Subsection 342(1) of the Act provides that adverse action includes an employer dismissing an employee.
Subsection 351(1) of the Act provides that:
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. (emphasis added)
Section 352 of the Act provides that:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Subregulations 3.01(2) and (3) of the Fair Work Regulations 2009 (“the regulations”) provide that:
(2)A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a)24 hours after the commencement of the absence; or

(b)such longer period as is reasonable in the circumstances.

Note: The Act defines medical certificate in section 12.
(3)A prescribed kind of illness or injury exists if the employee:
(a)is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b)complies with those terms.

Section 360 of the Act provides that:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Subsection 361(1) of the Act provides that:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

Authorities

It is well established that, while the impugned reason for adverse action need not be the only reason, it must be a “substantial and operative factor”: General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605 at 612 and 616; (1976) 51 ALJR 235.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 517; (2017) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32, French CJ and Crennan J said:
44.There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (citations omitted)
In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; (2015) 147 ALD 528; (2015) 320 ALR 61; [2015] FCAFC 25, Logan, Bromberg and Katzmann JJ said:
189.In General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241; 12 ALR 605 at 617, dealing with the equivalent provision in the Conciliation and Arbitration Act 1904 (Cth) (s 5(4)), Mason J said:
Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.
190.Section 5(4) was differently worded from the wording now found in s 361 of the FW Act. Nevertheless, the passage from the judgment of Mason J remains authoritative. In Barclay at [86] Gummow and Hayne JJ treated it as bearing upon the onus borne by a respondent under the FW Act. At [105] their Honours said that with respect to the onus of proof, the FW Act “adopts the same position as that under the 1904 Act”: see further Gummow and Hayne JJ at [104] and French CJ and Crennan J at [59].
191.The first point made by Mason J in the quoted passage is that the onus is on a respondent to “establish affirmatively that it was not actuated by the reason alleged”. As Gray J said in National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 at [20], to establish the fact that an alleged reason was not a reason actuating the conduct of the respondent requires the establishment of a negative proposition. In other words, the evidence must negate the alleged reason as a reason for the impugned conduct.
192.It is possible that the alleged reason may be negated by a respondent on the applicant’s own evidence. Where the connection between the reason alleged and the impugned conduct is so remote as to be fanciful, the onus may well be discharged in the absence of any evidence from the decision-maker. But as French CJ and Crennan J observed at [45] of Barclay, “[g]enerally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker”.

That decision of the Full Court of the Federal Court was affirmed by the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; (2014) 314 ALR 1; (2014) 88 ALJR 980; [2014] HCA 41.
In National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 at [20]; [2013] FCA 451 (“NTEU v RMIT”), Gray J said:
Although their Honours appear to focus on the ascertainment of the reason why adverse action was taken, it is clear from the passage as a whole that this was not intended to shift the focus from the question posed by the Fair Work Act itself. A party seeking to rebut the presumption created by s 361(1) of the Fair Work Act that the action was taken for the reason, or with the intent, alleged by the opposite party, must grapple with the establishment of the negative proposition that the action was not taken for the alleged reason or with the alleged intent. Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.

Was the applicant dismissed because of her sex?

The applicant noted that, in paragraph 16 of her amended claim, she alleged that the respondent took adverse action against her because of her sex in contravention of s.351 of the Act. The applicant also noted that the respondent did not expressly disavow the applicant’s sex as a reason for her dismissal. The applicant submitted that, because of the reverse onus in s.361 of the Act, and the absence of an express disavowal by the respondent, the applicant must succeed in relation to this point.
The respondent did not seek to leave to reopen when the respondent made that point. Rather, the respondent noted that, in paragraphs 28 and 29 of Mr Perrin’s affidavit sworn on 26 April 2017, he said:
28.I had made a decision to terminate Ms Reddy's employment. My reasons for making that decision were primarily due to her performance, and also to do with her poor punctuality. As to performance, my principal observation was that Ms Reddy made regular mistakes in settling and formatting valuation reports. Valuation reports are the key product of the part of the business Ms Reddy worked in. It is essential that those documents exhibit consistency, accuracy, professionalism and conformity to the National Style Guide. The expression of professional opinion in those documents is the responsibility of the valuers, and the mechanism for controlling quality in the expression of professional opinion is achieved by my colleagues and I reviewing that expression in one another's work. The function of the valuations assistant, the position which Ms Reddy held, is different. That person is expected to produce the final reports from draft, using template materials and conforming with the National Style Guide. Documents produced in accordance with the template and style guide should be consistent and properly formatted. The role also entails checking, at least at a basic level, the consistency of figures and statements throughout the reports. My experience was that Ms Reddy consistently failed to achieve the required standards. Her documents were often improperly formatted, and sometimes included gross errors such as inconsistent statements of the valuation (the dollar value) on different pages of the same report. On numerous occasions I would fix the documents myself before they were issued to clients. On other occasions - at least once per week over the period January to May 2016 - I would return the documents to Ms Reddy, draw her attention to the errors, and ask that she fix those errors and return the report to me. One consequence of this pattern was that I was spending a lot more time than I had spent, previously, proofreading and correcting valuation reports, and effectively duplicating Ms Reddy's work. Another consequence was that I had lost confidence in Ms Reddy as a reliable driver of the production of the key documentary products of our part of the business.
29. The facts that Ms Reddy was pregnant, that she intended to take maternity leave, and that she had taken sick leave from time to time, formed no part of the reasons for the decision that her employment was to be terminated.
The respondent argued that the applicant, in substance, only raised two substantial issues, namely, pregnancy and absences due to illness. The respondent argued that the other claims were rolled up in those two. The respondent argued that the express denial that the respondent dismissed the applicant because she was pregnant embraced the reason the applicant intended to take maternity leave and that embraced the fact that the applicant is a woman. The respondent submitted that there was nothing in the applicant’s case which suggested that the applicant’s sex was the reason for her dismissal and it would be entirely technical to find in the applicant’s favour because the respondent had not expressly disavowed the applicant’s sex as a reason for her dismissal.
It is true that, in NTEU v RMIT, Gray J said that:
Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption. (emphasis added)
However, as the emphasised word shows, a failure to expressly disavow a particular prohibited reason for an adverse action would usually, but not necessarily, be fatal to a respondent’s case. Moreover, as the High Court said in Barclay:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding.
In other words, a failure to expressly disavow a particular reason may be overcome by a consideration of all of the evidence in the case.
In the present case, Mr Perrin expressly stated his reasons for dismissing the applicant. Those express reasons, by implication, exclude the other reasons alleged by the applicant.
More significant, however, is the fact that, six months before dismissing the applicant, the respondent employed her, obviously knowing that she was a woman. It makes no sense that the respondent would have dismissed the applicant because she was a woman when a few months previously the respondent had employed her, knowing that she was a woman.
On the facts established in this proceeding, and taking into account the reverse onus, I do not accept that the respondent dismissed the applicant because of her sex. (The prohibition on sexual discrimination would seem to apply more naturally to circumstances where a prospective employer refused to employ a person of a particular sex.)

Was the applicant dismissed because she was pregnant?

The applicant argued that Mr Perrin’s denial that he had dismissed the applicant because of her pregnancy should not be accepted as credible. The applicant emphasised that Mr Perrin did not have any meaningful or formal performance discussions with the applicant at any stage. The applicant also emphasised that Mr Perrin waited until the last hour of the last working day of the applicant’s probation period to dismiss her, which was said to be indicative of underlying malice.
The applicant also argued that the respondent had form, so to speak, in that the board had recognised the unreliability of another pregnant employee. The minutes of the board meeting on 22 January 2016 said:
Bec is pregnant and her attendance record is bad.
In cross-examination, Mr Perrin said that Bec’s attendance record was bad not because she was pregnant, but because she put in medical certificates when she was not sick and she left the country without giving notice to her employer. However, the board minutes do not allude to Bec leaving the country without notice and do appear to draw a causal connection between Bec’s pregnancy and her attendance. There appears to have been no other reason to mention her pregnancy. If it had not been sought to draw a connection, the minutes would not have mentioned the pregnancy and would simply have said:
Bec’s attendance record is bad.
On the other hand, Mr Perrin said, without challenge, that another employee announced during her probation period that she was pregnant. She retained her employment with the respondent, which made arrangements to cover a period of maternity leave.
The evidence about Bec and the other employee cancel each other out, so to speak.
The applicant said in her affidavit affirmed on 29 March 2017, that Mr Perrin said to her, during the dismissal meeting:
Due to your current circumstances, your employment has become unreliable and we have decided not to continue with your employment.
Mr Perrin and Mr Venables denied in their affidavits and in their cross-examination that Mr Perrin said anything like, Due to your circumstances. They were quite vehement about this during their cross-examination. Mr Perrin conceded in cross examination that he did not have a specific memory of the dismissal meeting. It was put to him that he did decide to dismiss the applicant because of her pregnancy. Mr Venables conceded in cross examination that he did not have a good memory of exactly what was said during the dismissal meeting, but maintained that he would have remembered if the words current circumstances had been used.
The applicant was not cross-examined. The applicant argued that her unchallenged evidence should be preferred to the challenged evidence of Mr Perrin and Mr Venables.
The rule in Browne v Dunn (1893) 6 R 67 does not require matters to be put if adequate notice of them has been given in documents filed before the trial. Campbell JA, with whom Giles JA and Handley AJA agreed, said in New South Wales Police Force v Winter [2011] NSWCA 330 at [81]; (2011) 10 DDCR 69:
In West v Mead [2003] NSWSC 161; (2003) 13 BPR [24,431] at [95]-[99] I collected authorities about the manner in which the rule in Browne v Dunn was affected by exchange of documents between the parties before a hearing commenced:
“In Browne v Dunn at 70-71 Lord Herschell LC stated an obligation of procedural fairness which counsel has when cross-examining a witness who counsel intends to submit should not be accepted:
‘If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity to make any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.’
However, Lord Herschell LC said that there was no obligation to raise such a matter in cross-examination where it is:
‘... perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling ... All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.’
In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, Hunt J made a thorough review of later cases applying Browne v Dunn, and concluded (at 26):
‘I remain of the opinion that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.’
... Documents exchanged between the parties to litigation before the commencement of the trial are able to give notice that a witness’s account of events will be challenged in particular ways, so that there is no breach of Browne v Dunn if the witness’ account is not challenged in cross-examination. - Marelic v Comcare (1993) 121 ALR 121 at 120 (pre trial exchange of medical reports gives adequate notice), Flower & Hart v White Industries (QLD) Pty Ltd (1999) 163 ALR 744 (statement of issues, stated case and service of documentary evidence can give adequate notice), Stern v National Australia Bank Limited (2000) 171 ALR 192 at [44] (adequate notice given by pleadings), Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236 per Mahoney JA (adequate notice given by “the nature of the defendant’s case and the particulars given, and otherwise the conduct of it”), In the marriage of L C & T C (1998) 23 FamLR 75 at [39] (affidavits give adequate notice). Cross On Evidence, 6th Australian edition, paragraph [17460] footnote 12 says:
‘... the rule in Browne v Dunn did not apply where all parties were on notice of the evidentiary issues, eg by reason of affidavits having been exchanged ...’
The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.
Even when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case. ...”
In the present case, the applicant was on notice that the respondent denied using the words due to your current circumstances from the affidavits filed and served in the proceeding. Therefore, it was not strictly necessary for the respondent to cross-examine the applicant on that point.
However, the result is that the court is in the difficult position of not having the benefit of seeing the applicant in the witness box to compare the strength of her oral evidence with the respondent’s.
Nevertheless, I found the respondent’s oral evidence on this point to be unconvincing. Both Mr Perrin and Mr Venables seemed too vehement, and somewhat rehearsed. Both acknowledged that their recollection of what was said at the dismissal meeting was not complete.
I find that Mr Perrin did say at the dismissal meeting:
Due to your current circumstances, your employment has become unreliable and we have decided not to continue with your employment.
I consider that the words, Due to your current circumstances, could only have referred to the applicant’s pregnancy.
It beggars belief that Mr Perrin would have said that the applicant’s employment had become unreliable on the basis that she was a little late for work on six or seven occasions in a three month period in combination with some formatting issues that he had not previously raised with her in a formal manner. It is also preposterous that the applicant could have been dismissed for not sometimes not picking up discrepancies in valuation figures. The primary responsibility for that sort of error obviously lies with the valuer who prepared the report.
I consider that the respondent has failed to discharge the reverse onus in relation to the pregnancy ground. That is, I consider that a significant and substantial reason for the respondent dismissing the applicant was her pregnancy.

Was the applicant dismissed because she took leave?

The applicant alleged that she was dismissed:
a)in breach of s.340 of the Fair Work Act 2009 (“the Act”), because she exercised her workplace rights to take:
i)annual leave; and/or
ii)personal leave; and
b)in breach of s.352 of the Act, because she was temporarily absent from her work on account of illness or injury.
The applicant noted that Mr Perrin, at paragraph 29 of his affidavit sworn on 26 April 2017, had expressly disavowed dismissing the applicant because she had taken sick leave, but did not disavow having dismissed her because she was temporarily absent from work on account of illness or injury and did not disavow having dismissed the applicant because she took annual leave. The respondent argued that all of the leave grounds were disavowed by Mr Perrin saying that he did not dismiss the applicant because she had taken sick leave or intended to take maternity leave.
In my view, when Mr Perrin said that he did not dismiss the applicant because she had taken sick leave, he meant that he did not dismiss her because she had taken personal leave and had been temporarily absent from work due to illness or injury. That seems to me to be a natural reading of the words, sick leave.
Mr Perrin did not expressly disavow the applicant taking annual leave as a reason for dismissing her. The applicant argued that, because there was no express disavowal of annual leave being a reason for her dismissal, the respondent was unable to discharge the reverse onus. However, as discussed above, it is necessary for the court to consider all the evidence in the case to determine whether the reverse onus has been discharged.
Taking into account all of the evidence in the case, it seems to me that Mr Perrin treated the applicant’s absences on annual leave as absences due to her pregnancy and as absences which affected her reliability.
It seems to me that Mr Perrin did not consider that the applicant was unreliable because she was occasionally late for work or because she sometimes did not accurately apply the formatting guidelines. That claim is simply not credible, in all the circumstances of this case.
Rather, I consider that Mr Perrin viewed the applicant as unreliable because she was frequently absent from work on personal or annual leave, due to pregnancy related illness. I consider, notwithstanding Mr Perrin’s disavowal, that he dismissed the applicant because of what he perceived as her unreliability consisting of her frequent absences on personal or annual leave, due to pregnancy related illness. I simply do not believe his evidence to the contrary.
Having seen Mr Perrin in the witness box, it seems to me to be implausible that he would have dismissed the applicant for being a little late on occasion, and for making formatting errors that he did not formally raise with her, but would not have wanted to dismiss her for being absent from work on 11 days in a period of about 12 weeks.
By the time of the board meeting on 29 April 2016, the applicant had advised the respondent that she was pregnant and had been absent for seven and a half days in a seven or eight week period. It was in the minutes of that board meeting that there was the first mention of the situation with the applicant needing to be dealt with. Mr Perrin’s claims that he raised issues of the applicant’s punctuality and performance at the board level on 29 April 2016 is not supported by the board minutes. The minutes do record specific problems with the performance of other employees, but say nothing about the performance of the applicant. I do not find Mr Perrin’s and Mr Venables’ evidence in this regard to be persuasive.

The respondent argued that the fact that it did not formally raise performance issues with the applicant may be significant in an unfair dismissal case, but said this is an adverse action case. That is so. However, the failure to raise performance issues with the applicant during the course of her employment does tend to undermine the credibility of the allegations about her performance which were raised for the first time after her dismissal.
It is also significant that the respondent dismissed the applicant during the last hour of the last working day before her probation period ended. If the applicant’s performance had genuinely been bad enough to dismiss her, the respondent could have been expected to dismiss her much earlier. This circumstance also tends to undermine the credibility of Mr Perrin’s disavowals.
I consider that the respondent has failed to discharge the reverse onus in relation to the absences grounds. That is, I consider that significant and substantial reasons for the respondent dismissing the applicant were her frequent absences due to personal and annual leave because of pregnancy related illness.

Conclusion

I am satisfied that the respondent dismissed the applicant because:
a)she was pregnant;
b)she took personal leave;
c)she took annual leave; and
d)she was temporarily absent from work due to illness or injury.
There will be declarations accordingly. I will hear the parties on any further orders to be made.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Date: 6 July 2017