Mayer v ANSTO
[2003] FMCA 209
•6 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAYER v A.N.S.T.O. | [2003] FMCA 209 |
| HUMAN RIGHTS – Sex discrimination in employment – family responsibilities, sex and pregnancy – whether the applicant discriminated against in the terms on which employment was offered – whether the applicant was constructively dismissed from her employment – whether the applicant should have been permitted to work part-time following her return from maternity leave. CONTRACT – Breach – implied term of trust and confidence – constructive termination – notice of termination – implied term of reasonable notice – what amounts to reasonable notice in the circumstances considered. |
Australian Nuclear Science And Technology Organisation Act 1987 (Cth), ss.24, 36
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Industrial Relations Act 1996 (NSW)
Maternity Leave (Commonwealth Employees) Act 1973 (Cth), s.8
Sex Discrimination Act 1984 (Cth), ss.4A, 5, 7, 7A, 7B, 8, 14
Sex Discrimination (Amendment) Act 1995 (Cth), ss.7B, 7C
Workplace Relations Act 1996 (Cth)
Advertiser Newspapers v Industrial relations Commission of South Australia and Grivell (1999) 90 IR 211
Alexander v Home Office[1998] 1 WLR 968
Allison v Bega Valley Council (1995) 63 IR 68; [1995] NSWIR Com 175
Australian Iron and Steel v Banovic (1989) 168 CLR 165
Bonela v Wollongong City Council [2001] NSWADT 194
Burazin v Blacktown City Guardian (1996) 142 ALR 144
Commonwealth Bank v HREOC (1997) 80 FCR 78
Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122
Griggs v Duke Power 401 US 424 (1970)
Hickie v Hunt & Hunt (7 March 1998, unreported, HREOC)
Mobazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
QANTAS Airways v Christie(1998) 193 CLR 280
Russian v Woolworths (SA) Pty Ltd (1995) 64 IR 169
Thomson v Orica [2002] FCA 939
Waters v Public Transport Commission (1991) 173 CLR 349
Wattle v Kirkland (No 2) [2002] FMCA 135
Western Excavating v Sharp [1978] 1 QB 761
Westen v Union des Assurances de Paris (1999) 88 IR 259
Windross v Transact Communications Pty Ltd [2002] FMCA 145
| Applicant: | SAMANTHA MAYER |
| Respondent: | AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION |
| File No: | SZ1060 of 2002 |
| Delivered on: | 6 August 2003 |
| Delivered at: | Sydney |
| Hearing dates: Date last submissions received: | 26 – 28 May 2003 22 July 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr S Beckett |
| Solicitors for the Applicant: | Johnathon D’arcy & Co |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Court declares that the respondent unlawfully discriminated against the applicant contrary to ss.7(1), 5(2), 14(2)(a) and 14 (2)(c) of the Sex Discrimination Act 1984 (Cth), by refusing to extend the applicant’s contract of employment for a period of more than one year, and by imposing a condition that the applicant work full-time following a period of maternity leave that the applicant could not accept, thereby leading to the constructive dismissal of the applicant.
The Court orders that the respondent pay damages (including interest up to judgment) to the applicant in the sum of $39,294.
The respondent shall deduct from the above damages award and remit to the Australian Taxation Office an amount due for income tax, calculated on the basis that the damages awarded includes:
(a)assessable income in the sum of $13,642; and
(b)an eligible termination payment in the sum of $9,852.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1060 of 2002
| SAMANTHA MAYER |
Applicant
And
| AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) claiming damages or reinstatement for alleged unlawful discrimination on the grounds of the applicant’s family responsibilities, her sex or pregnancy. Ms Mayer also makes a claim based upon an asserted breach of her contract of employment. A further claim based upon the Workplace Relations Act 1996 (Cth) was not pressed.
Ms Mayer occupied a professional position at the Australian Nuclear Science and Technology Organisation (“ANSTO”) as the Business Development Manager in the Radiopharmaceuticals Division. She informed her employer in or around June 2001 that she wanted to take 12 months maternity leave. Her three-year contract was due to expire during that leave and it was extended for a period of one year to 3 January 2003. Ms Mayer says that she was discriminated against on the grounds of her pregnancy because at that time other professional officers on fixed term contracts were offered contract extensions of two years or more.
In June 2001 Ms Mayer had also raised a wish to return to work in a part-time position in 2002. In June 2002 she was informed by the Director of her division, Dr Carr, that her position with the respondent was only available to her on a full-time basis. Further negotiations between the applicant and respondent were not fruitful. The applicant says that she was unable to return to work because of her responsibilities to look after her child and the unavailability of full-time childcare. She did not return to work with the respondent. In effect, she treated the contract as at an end.
Ms Mayer lodged a complaint of unlawful pregnancy and sex discrimination with the Human Rights and Equal Opportunity Commission (“HREOC”) on 17 June 2002. Conciliation by HREOC was unsuccessful and the complaint was then terminated by the President on 27 September 2002. An application was filed in this Court on 25 October 2002.
In points of claim filed on 30 December 2002 the applicant asserted breaches of ss.5(2), 14(2)(a), 14(2)(c), 14(2)(d) and 14(3A) of the Sex Discrimination Act 1984 (Cth) (“the SDA”).
The alleged discriminatory conduct of the respondent was that the applicant was removed from certain interview panels formed for the purposes of staff selection, the applicant’s name was removed from letters sent to customers of the respondent, the applicant’s contract of employment was renewed for one rather than two years in circumstances where other employees were offered a renewal of at least two years, the applicant was denied part-time employment upon her return from maternity leave and therefore the applicant was constructively dismissed by the respondent because she could not return to work on a part-time basis. The conduct of the respondent in denying the applicant the opportunity to work part-time is also pleaded to be a breach of an implied term of trust of confidence in the applicant’s contract of employment.
The issue of precisely what sections of the SDA the applicant is relying on, and, in particular, whether the applicant is claiming only indirect discrimination was the subject of consideration at trial. I permitted counsel to prepare supplementary written submissions. In his supplementary written submissions filed on 17 June 2003 Mr Beckett clarified the applicant’s principal claims as follows:
Summary of discrimination alleged:
a)that the applicant was directly discriminated against by the respondent on the grounds of her pregnancy when she was not offered an extension to her employment contract of more than one year: ss.7(1) and 14(2)(a) of the SDA;
b)that she was indirectly discriminated against by the respondent on the grounds of her sex when in September 2002 it required the applicant to work full-time and constructively dismissed her from employment: ss.5(2) and 14(2)(c) of the SDA;
c)alternatively to (b), that she was directly discriminated against by the respondent when in September 2002 it constructively dismissed her from employment on the grounds of her family responsibilities: ss.7A and 14(3A) of the SDA;
d)alternatively to (b), that her employment was terminated by the respondent in or about September 2002 when the respondent conducted itself in a manner likely to destroy the relationship of trust and good faith between the parties.
The applicant’s claims of breaches of the SDA and breaches of contract are resisted by the respondent, except that in its amended points of defence filed in court on 26 May 2003, the respondent, in paragraph 11, admits that the imposition of a full-time working requirement could have the effect of disadvantaging the applicant, as a woman with family responsibilities. The respondent agrees to pay damages flowing from this breach of (if so found) s.5(2) of the SDA (including economic loss for the term of the unexpired portion of the applicant’s employment contract, on a part-time basis), to apologise, to provide a statement of service and to provide reasonable costs to date. The respondent denies any other breach of the SDA and, in particular, as was made clear at the outset of trial of this matter, the respondent maintains an entitlement to insist upon full-time work for any extension to the applicant’s employment contract.
The legislation
Sections 5, 7 and 14 of the SDA relevantly provide as follows:
Section 5(2) states:
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person ) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
Section 7(1) states:
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.
Section 7A states:
For the purposes of this Act, an employer discriminates against an employee on the ground of the employee's family responsibilities if:
a)the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and
b) the less favourable treatment is by reason of:
i) the family responsibilities of the employee; or
ii)a characteristic that appertains generally to persons with family responsibilities; or
iii)a characteristic that is generally imputed to persons with family responsibilities.
Section 14(2) states:
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.
Section 14(3A) states:
It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibilities by dismissing the employee.
The evidence
Samantha Mayer
Ms Mayer relies upon her own affidavits made on 24 October 2002 and 9 April 2003, the affidavit of Paula Napier made on 11 April 2003 and the affidavit of Derek Wood made on 11 April 2003. Ms Mayer and Ms Napier were both cross-examined.
In her first affidavit Ms Mayer deposes as to her employment history and to her dealings with the first respondent. She deposes that she held the position of business development manager with the respondent and that she commenced employment with the respondent on 4 January 1999 pursuant to a three-year contract. Her immediate supervisor was Ms Therese Bailey and above her was Dr Stuart Carr. She deposes that by letter dated 12 June 2001 to Ms Bailey, Ms Mayer advised that she was pregnant and she requested maternity leave from 1 August 2001 until 1 August 2002. In that letter Ms Mayer also noted that she hoped to return on a part-time basis. She also advised her intention to use maternity, recreation and other leave during her period of absence from 1 August 2001.
Ms Mayer deposes that following this letter she was dismissed from a staff selection interview panel, draft letters that she would ordinarily be the signatory of, had her name deleted and that Mr Carr “ignored” her in corridors. She deposes that in early July 2001 she sought a two-year renewal of her employment contract with Ms Bailey but was advised that only a one-year extension of her contract would be offered. On 18 July 2001 this was confirmed in writing from Dr Carr.
Ms Mayer’s child, Lachlan, was born on 13 November 2001. Between April 2002 and June 2002 Ms Mayer had telephone discussions with Ms Bailey about her return to work. These discussions included conversations about the possibility of part-time work and working from home. Ms Mayer deposes that Ms Bailey maintained that the position was only a full-time position. She deposes, however, that at least five other women in her division were permitted to work part-time after maternity leave. She deposes that she was never asked if she would accept alternative positions within the respondent on a part-time basis. She deposes that she was upset by a telephone call from a person called Pam who responded to a telephone message she had left for Mr Thorburn in human resources at the respondent relating to part-time work.
In her second affidavit Ms Mayer deposes that she is the primary carer of her son, Lachlan, although she receives help from her partner and her mother. She deposes that she has made attempts to obtain full-time child care for Lachlan but has not been successful. She deposes that she had intended to return to work with the respondent on a part-time basis but now feels that the relationship of trust and confidence between her and the respondent is so eroded that she could not return at all. She deposes as to her economic loss. Annexed to the second affidavit is a copy of an e-mail from Ms Bailey to Dr Carr marked “confidential”. In that e-mail Ms Bailey writes that, as at 4 June 2002 there was part-time work available for Ms Mayer to do and that the respondent should offer her two days work per week until January 2003 when her contract was due to expire. It is in the light of this
e-mail that the respondent makes the concession referred to at paragraph 8 above concerning its failure to offer part-time employment for the unexpired portion of Ms Mayer’s employment contract, following her return from leave.
Ms Mayer was an impressive witness under cross-examination. She gave me the strong impression that she knew her job well. She appeared a confident and articulate witness. Ms Mayer was frank when asked about her reaction to being taken off the interview panel and having her name removed from letters to customers of the respondent. She gave evidence that she was “upset” by these actions but it was apparent from her answers that she was not emotionally harmed by this conduct. She was annoyed by what she saw as discourtesy. Ms Mayer conceded that she worked in a busy area of the respondent and had a responsible position. She resisted suggestions that she would be unable to perform her duties part-time or to work from home. I had given leave to Mr Beckett, for the applicant, to lead additional evidence in chief from Ms Mayer directed to the issue of the extension of her contract for one or two years. Ms Mayer had given evidence in chief of her emotional reaction to the telephone call from “Pam” referred to in paragraphs 28 and 29 of her first affidavit. She stated that she was upset by this telephone call because she felt that her enquiries were not being responded to by responsible people and that she consulted her doctor for depression. Under cross-examination she conceded that the doctor she consulted issued a medical certificate for post-natal depression: exhibit R1. In re-examination Ms Mayer stated that she had not given the doctor information to support a diagnosis of post-natal depression. She asserted that she was not depressed following the birth of her son but suffered depression due to the failure of the respondent to agree to her working part-time on her return from maternity leave.
Ms Mayer was employed in a marketing research position. She gave evidence that the bulk of her work for the respondent involved writing material, and conducting research for the purpose of writing material, which would be discussed every couple of months for the purposes of the respondent’s marketing strategy. Ms Mayer stated that the greater part of her work was computer based and could have been done at home as well as at the premises of the respondent. Ms Mayer accepted that she would need the support of her partner and her mother in order to perform her duties full-time at home, due to the need to care for her infant son, but she maintained that she had the capacity to work at odd hours in order to do what needed to be done.
Paula Napier
Paula Napier was presented as a comparator. She deposes that she commenced working on 14 July 1997 with the respondent for a fixed term of one year and that her contract was subsequently renewed for two years. She further deposes to additional extensions of one year in 2001 and 2002. She now regards herself as permanently employed. In cross-examination Ms Napier accepted that her position was different from that of Ms Mayer. Ms Napier works in a sales manager position working directly with customers of the respondent. She confirmed the holding of marketing meetings of the whole marketing team every two months for three days to review marketing strategy and so forth. She gave evidence that she would normally sign promotional letters to customers of the respondent. She was shown an affidavit by Neil Charles Thorburn, senior human relations officer with the respondent, made on 7 May 2003. Her recollection of the period of extensions of her contract did not accord with the statements in Mr Thorburn’s affidavit about that matter. However, she conceded that in fact her contract may have been extended on the basis deposed by Mr Thorburn. She was just not aware of it.
Mr Woods
Mr Woods’ affidavit goes towards the cost of running a motor vehicle provided by the respondent to Ms Mayer as part of her terms of employment.
Mr Beckett completed the applicant’s case by tendering a number of documents, including a statement prepared by the applicant (exhibit A8) containing Ms Mayer’s views on how her job could have been done part-time or through a job sharing arrangement.
The respondent relies upon two affidavits of Neil Charles Thorburn made on 18 November 2002 and 7 May 2003 and an affidavit by Dr Stuart Carr.
Neil Thorburn
Mr Thorburn is senior human resources manager with the respondent. He gave evidence of his knowledge of Ms Mayer’s job role in the marketing section, the extension of her contract of employment and her request for part-time employment. He also gave evidence in response to Ms Mayer’s affidavit of 24 October 2002. In addition, I permitted Mr Lloyd to lead additional oral evidence in chief from him. Mr Thorburn impressed me as a frank and open witness. He appeared to be completely on top of the detail concerning the employment of Ms Mayer and Ms Napier. To the extent that the evidence of Mr Thorburn conflicts with the evidence of Ms Mayer and Ms Napier in relation to factual detail concerning their employment, I prefer the evidence of Mr Thorburn unless specifically identified otherwise in these reasons.
Mr Thorburn explained the different ways in which persons could be employed by the respondent. Essentially, there are three classes of employees. Ongoing (permanent) employees, fixed term employees and individual contract employees. Ms Mayer and Ms Napier fell into the last category, although Ms Napier is now an ongoing employee.
Under cross-examination, Mr Beckett pressed Mr Thorburn about the number of contract and fixed term employees who had their terms of employment extended. Mr Beckett showed Mr Thorburn figures showing various contract extensions: exhibit R2. Based upon those figures Mr Thorburn accepted that it was more common for employees’ terms of employment to be extended for an equal or greater period than their original term of employment than for a lesser period.
Mr Thorburn also admitted that he was not aware of a request from Ms Mayer for part-time employment before June 2002. He gave evidence about his efforts to find part-time employment for Ms Mayer. He was unsuccessful. In response to a question from me Mr Thorburn admitted that he had been successful in finding part-time employment for other employees and that Ms Mayer was the only employee returning from maternity leave of which he was aware who could not be found part-time employment where that employment had been requested.
Under cross-examination Mr Thorburn also asserted that he understood, based upon a conversation with Ms Mayer’s supervisor (Ms Bailey) that it was uncertain whether Ms Mayer would return to work after maternity leave at all. In response to a further question from me Mr Thorburn stated that it was his understanding, based upon his discussion with Ms Bailey, that Ms Mayer intended to return to work with the respondent part-time or not at all.
In re-examination Mr Thorburn stated that extensions to contract periods were based upon business needs and he was not involved in the making of decisions on extensions to contracts. He also stated that the respondent had no policy to refuse part-time work when requested and that requests are dealt with in accordance with the business needs of the respondent.
Dr Stuart Carr
Dr Stuart Carr is the director of radiopharmaceuticals with the respondent. He has held that role since 5 January 1998. He is the most senior officer in the respondent who dealt directly with Ms Mayer or through her immediate superior. In his affidavit, Dr Carr deposes that he decided to extend Ms Mayer’s contract in June or July 2001 in order to give her time to come back to work full-time after her maternity leave expired. He deposes that it was a business decision to extend her contract for one year, rather than the two years she sought, due to uncertainty about business needs beyond January 2003. Dr Carr also deposes as to certain matters in response to Ms Mayer’s affidavit evidence.
In oral evidence-in-chief Dr Carr was given the opportunity to comment on Ms Mayer’s views about the feasibility of performing her duties part-time or through a job sharing arrangement. He contested Ms Mayer’s views, on the basis that the job role in his view requires ongoing interaction with other staff within the respondent and on the basis that the performance of the duties of the position are time sensitive, particularly bearing in mind that the products sold by the respondent have a very short shelf life. The respondent deals with radioactive materials that may have a half-life of hours or days. Many of these products quickly become unusable. He maintains his view that it would not be feasible for Ms Mayer to have performed her duties part-time or through a job sharing arrangement.
Under cross-examination Dr Carr was tested in relation to his decision concerning the constitution of the interview panel that Ms Mayer says she was removed from. He disputed that Ms Mayer was ever on the interview panel. He also gave evidence that he decided that Ms Mayer should not be the author of the promotional letter that she had prepared shortly before commencing maternity leave for the reason that customers of the respondent may wish to contact the author. Dr Carr was tested at length by Mr Beckett on the credibility of his evidence that the business case for Ms Mayer’s job was uncertain beyond January 2003. He maintained his position.
Dr Carr was less confident in dealing with questions in cross-examination about his decision that there was no suitable part-time work available for Ms Mayer upon her return from maternity leave. He appeared uncomfortable on this issue, especially when called upon to support his letter dated 3 June 2002 (but apparently despatched subsequently), in the face of Ms Bailey’s e-mail to him on 4 June 2002 that the letter should not be sent and that suitable part-time work was available for Ms Mayer. On this issue Dr Carr’s credibility suffered some damage under cross-examination. He generally presented as a credible but guarded witness.
During oral submissions the applicant sought to rely on a Jones v Dunkel inference due to the failure of the respondent to call its employee, and the applicant’s supervisor, Ms Bailey. I stated that such an inference could be available against both parties, noting that either could have called Ms Bailey and that she would probably have been able to give relevant and admissible evidence. I formed the view at that time, and I remain of the view, that of the available evidence indicates that elements of Ms Bailey’s evidence would be likely to have been unhelpful to both parties, which in my view explains why neither side called her. Ms Bailey’s e-mail to Dr Carr on 4 June 2002 indicates that her evidence would not have assisted the respondent in relation to the issue of the availability of part-time work suitable for Ms Mayer to perform. On the other hand, Mr Thorburn’s evidence about information conveyed to him by Ms Bailey about the applicant’s intentions following her return from maternity leave, indicates that Ms Bailey’s evidence would not have assisted the applicant in relation to the information given by the applicant to Ms Bailey about those intentions.
Mr Beckett pressed the issue of a Jones v Dunkel inference being drawn against the respondent in his supplementary written submissions. Mr Beckett submits that Ms Bailey is a “non party witness” viz a vis the applicant because she is the respondent’s employee standing in the respondent’s confidence. There is some force in that submission, but Ms Bailey also had a close working relationship with the applicant and the applicant confided important information in her covering her pregnancy and maternity leave. There is no property in a witness. Once it became clear prior to trial that Ms Bailey would not be a witness for the respondent there would, one would have thought, been a strong incentive for the applicant to call her. She did not. In his supplementary written submissions filed on 1 July 2003 Mr Lloyd submits that no inference should be drawn against either party. Upon reflection I draw the following inferences:
a)Ms Bailey could not further the respondent’s case about the feasibility (or lack of feasibility) of part-time work; and
b)Ms Bailey could not further the applicant’s case about the applicant’s expressed intentions concerning her return to work following maternity leave.
Consideration and findings
I make the following preliminary observations and factual findings drawn from the evidence and Mr Beckett’s and Mr Lloyd’s initial written submissions.
Ms Samantha Mayer commenced employment as the Business Development Manager in the Radiopharmaceuticals Division of the respondent on 4 January 1999. She holds tertiary qualifications in applied science and marketing including a BSc from Charles Sturt University.
There are a number of terms of the contract of employment which are relevant to these proceedings:
a)the term of the first contract of employment was three years expiring on 3 January 2002;
b)the contract required the employee to work at least 36¾ hours per week;
c)the employee was to receive a “cost to company remuneration package” including salary, superannuation and a motor vehicle;
d)salary was at the rate of $59,986.00 with yearly increments;
e)the employee is able to elect the type of superannuation payment (Ms Mayer chose to remain in the CSS following earlier Commonwealth employment);
f)a motor vehicle was available for the employee’s private and work use and was to be fully maintained by ANSTO.
The requirement that Ms Mayer fulfil her duties as a Product Manager on a full-time basis was a condition originally imposed under a determination by the Executive Director of ANSTO prior to Ms Mayer agreeing to accept the position. The Executive Director was exercising a specific statutory power in determining Ms Mayer’s conditions (Australian Nuclear Science And Technology Organisation Act 1987 (Cth), s.24). Ms Mayer agreed to that condition in entering into contractual arrangements with ANSTO.
Shortly before June 2001 the applicant advised her immediate supervisor Ms Therese Bailey that she was pregnant and wished to take 12 months maternity leave. This was formally confirmed in writing on 12 June 2001. In that letter the applicant stated that she wished to return to work on 1 August 2002 “hopefully on a part-time basis”. She anticipated a period of leave for which she should apply (in fact her leave forms applied for a different period). It is clear that this letter could not constitute an application for part-time employment.
At some stage Ms Mayer asked if she could use her car on maternity leave. That permission was granted.
After Ms Mayer notified her supervisor Ms Bailey of her forthcoming maternity leave she alleges that there were two minor instances of discrimination on the grounds of pregnancy:
a)Ms Mayer was removed from the recruitment panel to select her replacement;
b)Ms Mayer’s name was removed from a customer letter which she had drafted and would usually have signed.
In or about July 2001 (the timing is unclear) there were discussions between Ms Bailey and the applicant concerning the applicant’s pregnancy. The applicant sought a two-year extension to her contract. The request was not granted. On 18 July 2001 Dr Carr offered her an extension of her existing contract to 3 January 2003. On 30 July 2001 the applicant accepted the offer.
The reasons for the one-year extension are not seriously in dispute between the parties. As Dr Carr stated in his affidavit, the reasons for the one-year extension included that:
I decided to extend it to allow her to come back to full-time work after her maternity leave expired.
Dr Carr provided other reasons for the extension of the contract for one year but did not negative the comment he made as regards the relationship with maternity leave set out above.
As a consequence of the extension, when she returned to work after her maternity leave, the applicant would return during that extended period. That extension was expressly made on the basis that the existing terms of her contract continued (with one exception, relating to the car). In so doing, the offer involved an offer of a full-time position. This characterisation was accepted by Ms Mayer during cross-examination.
The applicant’s leave commenced on 2 August 2001 and was to be for a period of 13 months. During this period Ms Mayer took four weeks annual leave, four weeks sick leave and the remainder as maternity leave (of which 12 weeks was paid maternity leave). There was no discussion of a part-time position until Ms Mayer contacted Ms Bailey in about April 2002. The applicant was told that the position was only full-time. Ms Mayer told Ms Bailey that she would not to return work until September and indicated that she would return to work on a part‑time basis. The language she says she used suggests that she considered she had a right to return to part-time work. She was told by Ms Bailey that she “would like” Ms Mayer back on a full-time basis. In May 2002 the applicant offered a compromise of three days work per week in the office and two days at home. Ms Bailey refused the compromise.
It should be noted that ANSTO is obliged by the Maternity Leave (Commonwealth Employees) Act 1973 (Cth) (“the Maternity Leave Act”) (s.8, which imposes the requirement of clause 12 of Schedule 14 of the Workplace Relations Act) to employ Ms Mayer “in the position she held … immediately before she began maternity leave”. In the present context, that was a full-time position. It follows that, in effect, Ms Mayer’s insistence in April 2002 on returning on a part-time basis constituted an application to vary the terms and conditions of the determination under which she was employed.
There was some discussion internally about whether Ms Mayer could return to work on a part-time basis. Ms Bailey proposed to the Division Director, Dr Carr, that Ms Mayer work in a part-time capacity for the remainder of her contract (to 3 January 2003) and identified “many projects that Samantha can work on” including a project on generator calibration. Ms Bailey was concerned that a draft letter proposed by Mr Thorburn from Human Resources “sends a strong message that we don’t want you to return”. Nonetheless it appears that letter was sent.
Ms Mayer made efforts over a brief period, of a few weeks at the end of April and early May 2002, to find full-time places for her child. She only looked for full-time placements, notwithstanding that her mother was prepared to take care of the child for three days per week, with the result that she needed only a two-day per week placement. It is also significant that there is no evidence that she has looked for any child care facility after this time on a full-time or part-time basis.
The refusal of part-time work was confirmed on 3 June 2002 by the Director of the Radiopharmaceuticals Division, Dr Carr. In his letter to the applicant of that date he stated:
You recently requested a return to work on a part-time basis. Unfortunately there is no suitable work available at your level at less than the full-time hours.
He also indicated that operational requirements meant that her position needed to be maintained on a full-time basis. In so doing, Dr Carr maintained (or “imposed”, in terms of the SDA) a condition that Ms Mayer continue to work on a full-time basis.
On receipt of the letter on 14 June 2002 the applicant says that she attempted on numerous occasions to contact Ms Bailey or the Director of Human Resources, Mr Thorburn as suggested by Dr Carr. Her calls were not returned by those persons but instead by a junior officer in the Human Resources section. The applicant says that she was upset as a result of that call and the failure by Ms Bailey and Mr Thorburn to return her calls. She claims she suffered depression as a result causing her to visit her doctor where she received medication for depression.
It appears that the Human Resources section made some attempts at that time to identify part-time work for the applicant. Mr Thorburn wrote to other divisions within ANSTO to inquire whether there was “any possibilities” of employing Ms Mayer there on a part-time basis. The responses were negative. Mr Thorburn wrote to the applicant on 26 July 2002 and stated that:
Unfortunately, no part-time work is available, at your level, within ANSTO.
There was no further contact between the parties after that date. Ms Mayer treated the contract as having been terminated by the respondent by not returning to work at ANSTO. The matter was conciliated unsuccessfully by HREOC and following termination Ms Mayer filed an application in this Court alleging inter alia that she had been constructively dismissed.
There was never any question about Ms Mayer’s work performance. Work assessments conducted in 2000 and 2001 by her superiors praised her performance.
The position of Product Manager continues to be filled on a full-time basis by a temporary employee. After September 2002, ANSTO was prepared for Ms Mayer to return to that position on a full-time basis in accordance with its obligations under the Maternity Leave Act. However, at the conclusion of the trial it was agreed between the parties that Ms Mayer’s employment was at an end, so that she could be paid her entitlements on termination.
Ms Mayer has indicated that she made some efforts to look for employment as a part-time product manager from September 2002. The e-mails tendered in support of this, when read, do not reveal significant efforts in that regard. Moreover, although Ms Mayer has skills in the area of regulatory affairs and science, she has made no efforts to look for part-time work in that field. Furthermore, there is no evidence that Ms Mayer has inquired into the possibility of full-time or part-time childcare since early May 2002. These reveal that Ms Mayer has made little or no effort to find alternative employment.
Incidental discrimination
The two instances of incidental discrimination alleged by Ms Mayer can be dealt with briefly. I accept Mr Lloyd’s written submissions as follows:
The only evidence before the Court as to the reason why Ms Mayer was not on the interview panel was that Dr Carr considered that the panel would be better comprised by himself (who had filled the position on the previous occasion), Mrs Bailey (the immediate supervisor of the new employee) and a person in another division (as required by public service regulations). Dr Carr’s evidence was that it was rare in ANSTO for people going on extended leave to be on the interview panel to appoint their replacements.
There is no evidence before the Court that the decision about who was to constitute the interview panel was in anyway affected by Ms Mayer’s sex or any characteristic generally appertaining to it. It was a normal business decision.
Shortly before Ms Mayer was to take extended leave, Dr Carr made a decision that the signatory of a letter to customers should be a person who would be available to the addressees if they wished to follow-up anything in the letter, in addition to the usual sales representatives.
This is an entirely sensible and reasonable decision.
There is no basis for an inference that the decision was made by reason of Ms Mayer’s pregnancy. There was no policy that pregnant women were unable to sign letters. Nor is there any suggestion that Ms Mayer was unable to sign other letters or correspondence.
Ms Mayer’s pregnancy was relevant only in the sense that it was a reason why she was to be absent. Dr Carr’s decision was made on the basis that letters of this kind should be signed by someone who is present, irrespective of the reason for the absence of the person concerned.
Ms Mayer did not dispute the reasonableness of replacing her name but considered that she might have been told in advance of discovering this herself. There is no evidence that the failure to tell her that this was to happen (presumably a failure by Mrs Bailey) was motivated in anyway by Ms Mayer’s pregnancy.
The non-placement of Ms Mayer on the interview panel and the removal of her name from letters to customers were reasonable and proper business decisions and not unlawfully discriminatory. Neither did these acts constitute a breach of any obligation on the employer in the contract of employment. It would have been courteous if Ms Mayer had been informed, in particular of the reasons why her name was removed from the customer letter, but no liability arises from mere discourtesy.
The contract extension
The first issue of significance is whether the applicant was unlawfully discriminated against by the extension of her contract for a period of only one year while she was on maternity leave. On this issue Mr Beckett relevantly submits as follows:
The extension of the applicant’s contract by the respondent occurred by an exchange of letters. There was some discussion between the applicant and her supervisor Ms Bailey including a wish by the applicant to have her contract extended by two years as she would only have three months before expiry of the contract following return from maternity leave of the term of the extension was one year. That wish was rejected and Dr Carr wrote to the applicant on 18 July 2001 offering her a one year extension. This was accepted by the applicant although she was concerned.
The question as to whether this constituted pregnancy discrimination may be usefully divided into three components:
(a) Did the applicant suffer a detriment?
(b) Who is the hypothetical comparator?
(c) Was the applicant treated less favourably than the comparator?
(d)Was the less favourable treatment on the ground of her pregnancy or a characteristic generally appertaining to women who are pregnant?
The applicant suffered a detriment when as a professional officer working at ANSTO and at the conclusion of a three year contract of employment she was offered an extension of only one year. The detriment is identifiable as the loss of an extra year’s employment from 4 January 2003 to 3 January 2004.
The comparator need not be an actual person but may be a hypothetical person. The circumstances of the comparator must be the same or materially similar. Such a person would be:
(a)an employee of ANSTO at the same level as the applicant;
(b)who was not pregnant;
(c)who sought an extension of his or her employment contract; and
(d)intended to take 12 months leave.
The applicant’s first argument was that she was discriminated against on the ground of her pregnancy by being offered only a 12 month extension to her contract in 2001. The 12 month extension was clearly not in keeping with the pattern of extensions at ANSTO amongst professional officers during the relevant period. While one of the reasons for offering the extension for only 12 months (from January 2002) was because she was going to be absent for 12 months (from September 2002) the applicant is entitled to rely on s.8 of the SDA. It is clear from Dr Carr’s own affidavit that the applicant’s term of maternity leave caused him to choose a period of 12 months. He agreed to the proposition in cross-examination that one of the factors causing him to give a 12 month extension was the applicant’s maternity leave. The applicant says that maternity leave is a characteristic that appertains generally to women who are pregnant within the meaning of s.7(1)(b) of the SDA.
No evidence was led to rebut the applicant’s assertion that she requested of Ms Bailey a two year extension and was declined. The pattern of extensions establishes how ANSTO has treated other employees who were to have their contracts extended. No evidence was led by the respondent that there was some differentiating factor from those persons other than the applicant’s pregnancy. The only requirement was “business need” although there was no contemporaneous evidence of this and the evidence provided by Dr Carr was clearly after the fact. Evidence led by the applicant established that the calculation of business need was an inexact science and that all the strategic and budget indicators available in 2001 indicated a continuing need for the role of Business Development Manager beyond 4 January 2003.
The applicant submits that she was treated less favourably than other professional officers at ANSTO seeking an extension of their employment contract in the period 2001-2002 on the ground of her pregnancy. The period of an extension of an employment contract is clearly a term or condition of employment within s.14(2)(a) of the SDA. Accordingly, there should be a finding of unlawful discrimination on the ground of pregnancy.
If the Court finds that the applicant was unlawfully discriminated against as regards the contract extension then this clearly affects the amount of damages flowing from the constructive dismissal in September 2002. That is because the contract being terminated in September 2002 should, save for the discrimination, have been until January 2004. Indeed if the respondent is able to hide behind the discriminatory extension it will have successfully limited its damages for a failure to offer employment from 4 January 2003 to 3 January 2004 to a loss of a chance.
Mr Lloyd submits relevantly as follows:
The applicant’s case in this respect is pleaded as follows:
a)the applicant was offered a one-year renewal in July 2001 (while she was pregnant);
b)ANSTO had a practice to offer employees at similar seniority and performing similar functions, renewals of two years;
c)The applicant was treated less favourably than other employees who were not pregnant by not offering her a contract of two years or more.
It has not been established that ANSTO had any practice of the kind specified. Indeed, the applicant’s own evidence is that her position was unique – hence there were no others performing similar functions.
She also gave evidence that she was of a higher level than Ms Napier and Ms Napier gave evidence that she performed different functions from Ms Mayer. It follows that there can be no inference, as suggested in Points of Claim, that there was a practice that persons of similar level and similar function should be renewed for two years. Significantly, Ms Napier thought she had been renewed twice for one year each time. While that does not appear to be factually accurate, it shows that not even she had any awareness of a practice of being renewed for two-year periods.
Evidence of Dr Carr and Mr Thorburn indicates that:
a)the decision to extend Ms Mayer’s contract was made by Dr Carr when it was brought to his attention that her contract would otherwise expire while she was on maternity leave;
b)the factors taken into account in making extensions include business need and budgetary considerations. Note business need was the critical criteria in the extension which Ms Napier got too;
c)in the present case, the evidence is that there was a business need foreseeable (in July 2001) until January 2003, beyond that the position was uncertain. There was a budget available and Ms Mayer’s performance had been satisfactory;
d)contract extensions have varied between six months and two years in Dr Carr’s experience, in relation to persons on individual contracts;
e)the two tables reveal no general practice in granting extensions;
f)there is no policy within ANSTO to the effect that the length of a renewal is dependent upon the length of the original term (Thorburn’s oral evidence). Furthermore, the statistics do not even reveal a correlation. The tables summarise many areas (professionals do a wide variety of tasks, marketing, accounting, scientific, engineering, management). There is no proper basis to draw an inference of a correlation in light of the express evidence that it does not exist.
The respondent agrees with the applicant that she needs to establish the four matters noted in [in the second quoted paragraph] of the applicant’s submissions.
She has clearly failed to do this. First, there is no evidence of a general practice of giving temporary employees any particular extension. The uncontroverted evidence is that these assessments are done on a
case-by-case basis with regard to business needs. The evidence before the Court concerning Ms Napier’s extension gives an example of how this is done. The applicant’s attempt to draw inferences from statistical material concerning professionals across the whole of ANSTO can bear no weight in light of the direct evidence that there is no presumption or usual practice about lengths of extensions. Indeed, Ms Napier’s evidence that she had thought she received two separate one-year extensions reveals that she was aware of no apparent general practice of giving two-year extensions. Rather, the statistical evidence reveals that different lengths of extension have been given in respect of different positions. That contradicts an essential element of the applicant’s case in relation to pregnancy discrimination.The applicant contends that the respondent provided no evidence of any other factor, apparently doubting the evidence that “business need” was genuine. This is wrong. Mr Thorburn gave evidence that, in his experience, business need was the sole factor for determining the length of extensions (if a person was to be extended at all). Dr Carr’s evidence about his area of ANSTO was to the same effect.
The evidence about ANSTO’s business plan did not reveal that there was an ongoing business need for the applicant’s particular position. On the contrary, the evidence (of Dr Carr and the applicant) was that the applicant was the first person to hold such a position at ANSTO. Dr Carr indicated that he was confident that there was a business case for the position to continue for a further 18 months from when the decision was made (July 2001) but was uncertain about whether it was needed thereafter. He did not suggest that there would be no need for marketing thereafter only that he was uncertain that ANSTO would wish to continue to deal with its marketing requirements by that kind of recently-created position. This is entirely credible.
Moreover, in relation to the claim that the applicant has established that she was treated less favourably because she was pregnant, this is not supported by the evidence at all. It may be accepted that the question of her extension arose earlier than it might have done because she was pregnant and about to go on maternity leave. That, however, gave rise to the need to make the decision but does not evidence that her pregnancy was an adverse factor which led to less favourable treatment. There is no evidence of that; certainly none from Dr Carr as the applicant appears to suggest.
Section 8 of the SDA does not assist the applicant (contrary to her submissions) because it concerns a situation where a person is treated less favourably for two or more reasons and one of those reasons is, for example, the sex of the person concerned (or state of being pregnant). However, the mere fact that such a factor is known by a decision-maker and even caused a decision to have to be made at a particular time (because the person was about to go on leave) does not establish that it was a reason for less favourable treatment within the meaning of s.8. There is simply no basis for asserting that pregnancy was an adverse factor in the absence of any evidence that the applicant or someone in a materially similar position would have got a longer extension if they had not been pregnant (of which there is none).
In any event, there is no evidence that the applicant has suffered any harm from the decision relating to the length of her extension. She refused to return to work on a full-time basis irrespective of the length of the term of her contract.
On this issue I accept generally the submissions of Mr Beckett and reject those of Mr Lloyd. In my view, the applicant has demonstrated direct discrimination, in the refusal of a contract extension for a period of greater than one year, in breach of ss.7(1) and 14(2)(a) of the SDA. First, the applicant plainly suffered a detriment. She sought a contract extension of two years and was granted only a one-year extension.
Secondly, the proper comparators are other fixed term contract employees of the respondent who had their contracts extended. Thirdly, the applicant was treated less favourably than other contract employees of the respondent, most (if not all) of whom were granted a contract extension of an equal or greater period than the original term of their employment: exhibit R2. While there was no uniform approach to the renewal of fixed term contracts, the respondent’s practice gave rise to a reasonable expectation that, provided that performance was satisfactory, the contract would be renewed for a period no shorter than the initial contract period. Ms Mayer had been employed initially for a period of three years and as she was well regarded she could reasonably have expected a three-year renewal. She sought only a two-year renewal, but was granted only a one-year renewal. In that, she was treated less favourably than comparable employees of the respondent.
Fourthly, Dr Carr accepted, under cross-examination, that a factor in his consideration of how long the renewal of the applicant’s contract of employment should be was the applicant’s pregnancy. Dr Carr gave evidence that he was concerned to renew the contract for a sufficient period that ensured that the contract would still be on foot when Ms Mayer was due to return from maternity leave. Mr Thorburn gave evidence that he understood from Ms Bailey that Ms Mayer may not have intended to return from maternity leave at all, or at least not full-time. Mr Thorburn gave evidence that he briefed Dr Carr. Dr Carr corroborated that. Dr Carr maintained that the dominant factor in his consideration was the doubt about a business case for Ms Mayer’s position after 3 January 2003. That did not sit well with the respondent’s insistence until the end of the trial, that Ms Mayer had not been dismissed and could return to her old job with the respondent should she wish. I accept that, at the time Dr Carr made his decision, there was uncertainty but I find that a factor in that uncertainty was doubt in Dr Carr’s mind whether, and if so on what basis, Ms Mayer would be returning from maternity leave. In short, Dr Carr was minimising the risk that Ms Mayer might not return or might want to return on an inconvenient basis after completing her maternity leave.
The refusal of part-time work
Mr Beckett relevantly submits that the refusal of part-time work was discrimination on the grounds of sex, as follows:
The applicant pleaded indirect discrimination on the grounds of sex pursuant to s.5(2) of the SDA. The requirement relied on by the applicant was that contained in the letter from Dr Carr to the applicant and dated 3 June 2002:
There is no suitable work available at your level at less than the full-time hours.
That requirement had been stated in oral discussions between the applicant and Ms Bailey prior to 3 June 2002. The requirement was reiterated by the head of the Human Resources section Mr Thorburn in his letter to the applicant of 26 July 2002.
Although the requirement was contained in the applicant’s contract of employment the discrimination did not occur until the applicant suffered a detriment. That is because before 2 September 2002 the applicant had suffered no detriment which would have brought her within ss.5(2) and 14(2) of the SDA.
The respondent did not put the applicant to proof on the issue of whether a requirement to work part-time disadvantaged women within the meaning of s.5(2). The position is clearly stated in Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122 at par [33]. Driver FM followed the following comments made by Commissioner Evatt in Hickie v Hunt & Hunt (7 March 1998, unreported decision of HREOC).
Women are more likely than men to require at least some periods of part-time work during their careers, and in particular a period of part-time work after maternity leave, in order to meet family responsibilities.
In addition, the applicant provided evidence in the form of ANSTO’s Annual Report for 2001-2002 which sets out that 32 of 41 ANSTO staff working part-time were women. Further, 70% of the professional part-time staff during that period were women.
Section 5(2) is made subject to ss.7B: s.5(3). Section 7B provides an effective defence to s.5(2) if the requirement, condition or practice is “reasonable in the circumstances”. That defence was amended in two ways by the Sex Discrimination Amendment Act 1995 (Cth) (“the Sex Discrimination Amendment Act):
a)the identification of relevant matters to be taken into account in determining reasonableness (s.7B(2));
b)the reversal of the onus so that the respondent bears the onus of establishing that a requirement, condition or practice is reasonable (s.7C).
It is to be noted that the matters to be taken into account are non-exclusive but that it is mandatory to take those matters into account. Other circumstances of the case may be relevant in construing whether the requirement, condition or practice was reasonable.
As regards s.7B(2)(a) it is clear that the result of the requirement for Ms Mayer was that she was unable to perform her previous contract of employment. Ms Mayer had had no income following the initial 12 weeks of paid maternity leave. The majority of her maternity leave was leave without pay. Because of her family responsibilities she was unable to return to work on a full-time basis. Accordingly, the result of the imposition of the full-time requirement was that she lost her job.
With respect to s.7B(2)(b) it is clear that little effort was made to determine the feasibility of Ms Mayer working in her previous position on a part-time basis. The following matters are illustrative of this:
a)although Ms Mayer notified her employer of her wish to return on a part-time basis on 12 June 2001 little or nothing was done until the start of June 2001;
b)a viable proposal for Ms Mayer to work part-time was rejected by Dr Carr on or about 4 June 2002 (and reflected in the letter of 3 June 2002);
c)no written feasibility proposal or memorandum was called for or generated by Dr Carr or from Mr Thorburn;
d)Ms Mayer was not asked whether part-time work was feasible or whether she could propose a job-share arrangement;
e)Mr Thorburn did not commence looking for alternative positions until July 2002 (eight weeks prior to Ms Mayer’s return to work).
The respondent produced only meagre evidence as to why part-time work was not viable. The applicant says that it has not satisfied its onus of establishing that the requirement was reasonable. In reply the applicant adduced evidence that it was feasible to split the position in a “job-share” arrangement where she worked three days per week and another employee worked two days per week.
The nature of the position was such that it could easily be done by two people on a part-time basis. The position was largely desk bound and involved a considerable amount of research and report writing. Customer relations was a small part of the job and could be performed on a part-time basis. No doubt there would be some adjustment needed by the Sales and Marketing Section but it is unlikely this would be untoward. There would be a small amount of expenditure in recruiting another employee. Any adjustment needed by the ANSTO and cost would on the evidence available not be proportionate to the disadvantage to Ms Mayer by the imposition of the full-time requirement.
Accordingly, the [applicant] says that the full-time requirement was not reasonable given the nature of the position, the adjustment needed at ANSTO to accommodate Ms Mayer in part-time work and the disproportionate disadvantage to her of losing her job.
The final element needed before a finding of indirect discrimination can be made is whether there has been a dismissal within the terms of s.14(2)(c) of the SDA. (s.14(2)(a) is pleaded in the alternative.)
In order to establish that the applicant was constructively dismissed the applicant must establish that the respondent considered itself no longer bound by the contract of employment.
The [applicant] submits that the term dismissal includes constructive dismissal of an employee following Lord Denning MR’s well known exposition of that principle in Western Excavating v Sharp [1978]
1 QB 761 at 769A. That is, there must be a significant breach by the employer which goes to the root of the contract of employment. The employee is then entitled to treat him or herself as discharged from further performance and if he or she does so then the contract is terminated. The case law is replete with examples of constructive dismissal such as:a)The employer’s conduct is likely to damage or destroy or the relationship of trust between employer and employee: Advertiser Newspapers v Industrial Relations Commission of South Australia and Grivell (1999) 90 IR 211, Russian v Woolworths (SA) Pty Ltd (1995) 64 IR 169;
b)demotion of an employee: Westen v Union des Assurances de Paris (1999) 88IR 259; and
c)Resignation under duress: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, Allison v Bega Valley Council (1995) 63 IR 68.
There is no obstacle to a finding of dismissal where there has been repudiatory breach and that breach has been accepted. Acceptance is, more commonly than not, evidenced by action and not by express acceptance.
The repudiatory breach in this case was the imposition of the full-time requirement contrary to s.5(2) of the SDA. Ms Mayer “accepted” that breach not expressly but by her actions. She did not return to work but instead filed a complaint with HREOC and later made an application to this Court alleging, inter alia constructive dismissal.
An argument is made in the alternative if the Court does not find that there was a constructive dismissal. That is that the imposition of the said requirement (indirectly) discriminated against the applicant on the grounds of her sex in the terms and conditions afforded to her by her employer. The applicant says that the requirement to work full-time was, once she returned from maternity leave, such a discriminatory term or condition.
The applicant submits that the Court should find that the applicant was discriminated against on the ground of her sex by dismissing the employee contrary to ss.5(2) and 14(2)(c) of the SDA.
In the alternative, the applicant submits that the Court should find that the applicant was discriminated against on the ground of her sex in the terms and conditions afforded to the applicant by the respondent contrary to ss.5(2) and 14(2)(a) of the SDA.
Mr Beckett augmented these submissions in his supplementary submissions as follows:
The indirect discrimination provisions of the SDA, including s.5(2), prohibit discrimination where the ground of discrimination of facially neutral but the negative impact upon a particular group (here women) is disproportionate. The type of discrimination has its origins in Griggs v Duke Power 401 US 424 (1970). Indirect discrimination, in terms of the SDA, was [not] included in the SDA until 1995. The difficulties in proving indirect discrimination under s.5(2) SDA and allied legislation was explored in Australian Iron and Steel v Banovic (1989) 168 CLR 165 and Waters v Public Transport Commission (1991) 173 CLR 349. As a result, the SDA was amended by the Sex Discrimination Amendment Act which inserted the current s.5(2). The new provision has been considered most recently in Commonwealth Bank v HREOC (1997) 80 FCR 78 (Davies J at 83F and Sackville J at 97C) but as the complaint in that case arose under the pre-1995 provisions the comments are obiter.
Although the case centred on the feasibility of part-time work that is only one part of the three part test in s.7B of the SDA. Under s.7B(2)(a) the disadvantage to the applicant - here losing her job - must be weighed against the “result sought by the person who imposes the condition requirement or practice”. It is unclear from Dr Carr’s evidence what that purpose was other than “business efficiency”.
The respondent is required to discharge the onus that the requirement to work full-time was reasonable (s.7C) taking into account those matters set out at s.7B(2). The applicant says that the respondent produced only general evidence on that issue principally from Dr Carr. An inference is available from Ms Bailey’s absence that she would not have assisted the respondent’s argument on reasonableness. No financial evidence was provided from the respondent as to the feasibility of part-time employment for the applicant. The Court may infer from Ms Bailey’s e-mail of 4 June 2002 that there was some funding available to employ Ms Mayer on a part-time basis.
The respondent has misconceived the interaction between ss.5(1) and (2) SDA and the decision in Hickie v Hunt & Hunt.
The disadvantage for women of requiring them to work full-time is as set out in 6.17.10 and excerpted by Driver FM in Escobar v Rainbow Printing at [33]:
I also infer from general knowledge that women are far more likely than men to require at least some periods of part-time work during their careers, and in particular a period of part-time work after maternity leave, in order to meet family responsibilities. (emphasis added)
The comparison made by Commissioner Evatt is between men who are able to comply with a requirement that work be performed on a full-time basis and women who are able to comply.
The question in s.5(2) is not whether the respondent has discriminated on the grounds set out at s.5(1)(a)-(c) but whether the requirement has the effect of disadvantaging women. That is clear from the plain reading of the text. Sub-section 5(1) and 5(2) are mutually exclusive: Commonwealth Bank v HREOC at 97E per Sackville J following Waters v Public Transport Commission per Dawson and Toohey JJ at 392-3 and McHugh J at 402. The sub-sections do not interact as suggested by the respondent.
The respondent has confused direct discrimination with indirect discrimination. The reason that s.5(1) is not relied on by the applicant is because the respondent’s requirement is that the applicant works full‑time and that, apparently, that is a requirement which also would have applied to men.
The applicant does not plead indirect discrimination on the ground of family responsibilities. There is no warrant for reading s.5(2) down as suggested because the result would be to place women who have family responsibilities claiming discrimination in a worse position after the amendment of s.5(2) than prior to the amendment. That is clearly not the intention of the 1995 amendments. There is no expansion of s.5(2) in Hickie and Escobar as argued by the respondent. It is well established that the SDA is beneficial legislation and should not be construed narrowly: Qantas Airways v Christie (1998) 193 CLR 280 at 332 per Kirby J.
In the alternative, Mr Beckett submits that the refusal of part-time work was direct discrimination on the grounds of family responsibilities, as follows:
In the alternative to indirect discrimination on the grounds of sex the applicant also says that she was discriminated [against] on the ground of her family responsibility.
It was not seriously in dispute between the parties that the applicant had responsibilities to care for her child, Lachlan, during the relevant time. It was clear from Ms Mayer’s evidence that Lachlan was a dependent child and that she had primary responsibility for the care of that child within the meaning of s.4A of the SDA.
The applicant relies on the same structure to the application of direct discrimination under s.7A of the SDA as for s.7(1).
The detriment was that the applicant was refused employment by the respondent on a part-time basis.
The relevant comparator is a professional officer at ANSTO at the same level as the applicant who did not have family responsibilities.
The applicant was treated less favourably than a (hypothetical) comparator because the respondent did not take into account all the factors required to be taken into account in relation to ongoing part-time employment pursuant to clause 10.3 and 10.4 of the 2002 Enterprise Agreement. Those relevant factors include:
a) family reasons; and
b) EEO considerations.
Dr Carr clearly failed to take into account those crucial matters as regards Ms Mayer and thereby treated her less favourably. The matters were crucial because Ms Mayer was unable to work on a full-time basis and required part-time work. If she was unable to work part-time it was clear (or should have been clear) to Dr Carr by June 2002 that she would not be able to work at ANSTO at all.
The less favourable treatment was by reason of her absence on maternity leave being a characteristic that appertains generally to persons with family responsibilities. No attempt was made by Dr Carr to have Ms Mayer come into ANSTO to discuss her personal circumstances or EEO considerations with him, Ms Bailey or Mr Thorburn. In effect and on the basis of very little information about Ms Mayer’s desires and circumstances he rejected the possibility of part-time work within the Division in his letter to Ms Mayer of 3 June 2002.
In order to establish unlawful discrimination the applicant must also establish that she was dismissed on the grounds of her family responsibilities: s.14(3A). The applicant repeats its submissions above on the issue of constructive dismissal.
Mr Lloyd relevantly submits that:
The question of whether the decision not to change the terms and conditions of Ms Mayer’s position, so as to allow part-time work, is not the subject of any admissions. Indeed, it is the subject of specific and repeated denials in the pleadings.
The evidence has consistently indicated that Ms Mayer’s position could not be filled on a part-time basis or in part from working at home. The evidence also reveals that whether part-time work is offered is determined on a case-by-case basis according to the needs of the position. The evidence also reveals that ANSTO made genuine attempts to find Ms Mayer part-time work within ANSTO.
Ms Mayer gave oral evidence (and subsequently a written plan) to the effect that, in her view, the position could be done of a part-time basis, shared with another. Dr Carr gave oral evidence explaining why, in his opinion, it was not practical for that particular position to be done in that manner. In his view, it was a strategic and project oriented position. Dr Carr did not consider that it made business sense to divide strategic marketing issues between two people, especially not in the way suggested. In particular, as ANSTO’s existing and new products were similar and able to compete with one another, it was not appropriate to have one person responsible for marketing new products and another responsible for marketing existing products. Dr Carr was also of the view that the project nature of much of the work required intensity (during periods) which was incompatible with a part-time position, such as prior to product launches and in responding quickly to concerns of regulatory authorities as well as other groups within ANSTO. Dr Carr detailed other practical considerations for why the position could not be efficiently done on a part-time basis.
Dr Carr is responsible for making these kind of business decisions. His views are certainly reasonable in all the circumstances. The correctness of his decision is not in issue and not for the Court to determine. The standard is a reasonableness standard.
The question is whether it was reasonable in the circumstances for ANSTO to insist upon the Product Manager position being maintained on a full-time basis (as it had been since its inception). Subsection 7B(2) notes additional factors which are to be taken into account in determining reasonableness.
In addition to the matters dealt with above, ANSTO says that its decision was reasonable for the following reasons:
a)It was the applicant’s evidence that her position was a busy one. This is not disputed. If a person working full-time was busy, it is clear that a person (indeed, the same person) could not do the requisite work load in 60 per cent of the time (three days instead of five).
b)The applicant’s evidence that part-time product manager positions were rare supports ANSTO’s assessment that this kind of position is not readily made part-time.
c)The feasibility of mitigation was significant notwithstanding that Ms Mayer’s efforts were not substantial:
i)She was renewed on a full-time basis in July 2001 but looked for full-time child-care only for a few weeks in April/May 2002.
ii)She did not (apparently) consider part-time childcare by her mother and part-time childcare by a centre.
iii)She did not look again after May 2002 (or there is no evidence that she did).
d)The nature and extent of the disadvantage. It is not clear that there needed to be any disadvantage as a result of the full-time requirement. If efforts had been made to share child care between a facility and her mother, there may have been no disadvantage.
e)The applicant looked only for full-time child care centres in her locality (her oral evidence). She could have looked further afield. The disadvantage may have been some inconvenience in additional travel but need not have been a substantial matter.
f)The applicant gave evidence that she lived 20 kilometres from Lucas Heights. She could have checked child care facilities near Lucas Heights rather than near her locality. If a place had have been found, there may have been negligible difficulties.
The result sought by ANSTO is to have its product manager position operate effectively, a core part of the marketing team, which is itself a critical part of its business. Any (limited) disadvantage is proportionate to the result sought by ANSTO (the maintenance of an effective and critical marketing position).
It remains for the applicant to make good one legal issue in relation to the four month period, namely whether discrimination on the basis of family responsibility falls within s.5(2) of the SDA.
Whether the Court is satisfied that there has been unlawful discrimination is a jurisdictional element which is pre-condition to the grant of any of the discretionary powers in s.46PO(4) of the HREOC Act. It follows that the applicant must establish that, on the facts as they appear to the Court, unlawful discrimination has been made out.
It may be noted that s 5(1) deals with three prohibited criteria:
a)the sex of the aggrieved person;
b)a characteristic that pertains generally to persons of the sex of the aggrieved person;
c)a characteristic that is generally imputed to persons of the sex of the aggrieved person.
Subsection 5(2) refers only to “sex” as a prohibited criterion.
It is, thus, incumbent upon the applicant to make good two propositions:
a)that s 5(2) extends to all three criteria referred to in s 5(1); and
b)that a condition which has the tendency to disadvantage women with family responsibilities falls within one of those criteria.
I note that these two propositions appear to have been accepted:
a)by Evatt P in Hickie v Hunt & Hunt at [6.16.10] and [6.17.10]; and
b)by Driver FM in dicta in Escobar v Rainbow Printing Pty Ltd at [37] (applying Hickie).
However, there is a flaw with the approach of Evatt J in Hickie.
Her Honour accepts (at 6.16.9) that “working part-time when they have small children, such as in the period after maternity leave, is a characteristic appertaining generally to women”, which is a reference to s.5(1)(b) of the SDA. Her Honour then relies upon this finding in concluding at 6.17.10 that there has been indirect discrimination (see also 8.15.5).
Her Honour does not address the question whether s.5(2) extends to the matters referred to in s.5(1)(b) or is limited to the matters referred to in s.5(1)(a).
There is a strong textual reason for concluding that it does not. Subsection 5(1) expressly includes the extended meaning of “sex” which is not included in s.5(2). It would be an error of law to construe s.5(2) as if it contained the same extended set of criteria. The natural reading of s 5 is that the extended scope of s.5(1) is not replicated in s.5(2).
In addition, it should be noted that s.7A, which deals with discrimination on the basis of family responsibilities does not extend to so-called “indirect discrimination”. It is contrary to the Scheme of the Act for family responsibilities to be converted into a characteristic generally appertaining to a sex (within s.5(1)(b)) and to expand s.5(2) to include indirect discrimination on that basis.
The better construction is that s.5(2) does not extend to the three criteria in s.5(1) but only to the first.
For these reasons, the Court should find that indirect discrimination on the basis of family responsibilities in the context not of dismissal but of refusing to vary terms and conditions of an agreement is not unlawful discrimination under the SDA. It follows that the Court has no powers to give relief even in respect of the four month period.
The respondent’s argument is based upon the natural language of the section. The respondent accepts that ss.5(1) and 5(2) are mutually exclusive. However, that does not mean that one does not construe the Act as a whole in accordance with normal principles.
When one does that, it is apparent that Parliament has made provision for discrimination based upon family responsibilities in s.7A. This provision does not prohibit any indirect discrimination. It would be a surprising result if, as the applicant contends, that indirect discrimination against women with family responsibilities falls within s.5(2) but indirect discrimination against men with family responsibilities is not unlawful. It would be particularly surprising that this would be the intention of an Act designed to eliminate discrimination on the grounds of sex. Yet, this is the consequence of the applicant’s argument.
The better view is that s.5(2) does not extend beyond its terms and that discrimination on the grounds of family responsibilities is dealt with in s.7A and does not include indirect discrimination.
There is no evidence (or concession) that the full-time requirement would have the effect of disadvantaging women per se (as opposed to women with family responsibilities).
If the Court were not to accept the respondent’s legal arguments above, an issue arises as to whether, and to what extent, the applicant has made out her claim to indirect sex discrimination.
The applicant contends that there is a “three part test” for determining reasonableness of imposing a condition, referring to s.7B(2). This is wrong. The factors in s.7B(2) are to be included in a consideration of what would otherwise fall within the notion of “reasonable in the circumstances” in s.7B(1).
In addition to the factors already highlighted in its original submissions (written and oral), the respondent emphasises two further matters which are relevant to the question of reasonableness:
a)Ms Mayer properly admitted that, if she had worked part-time as she would have preferred to do, there would inevitably have been delays in her responding to people in relation to issues which arose while she was not working. Dr Carr gave evidence also of the problems of such delays in terms that delays in responding to inquiries such as from regulatory agencies mean that approvals by those agencies are likewise delayed with consequent adverse effects on the ability of ANSTO to sell its products either at all or with Medicare subsidies (depending upon the nature of the approvals). Hence, if the product manager were to work part-time, this would be likely to lead directly to ANSTO suffering financially.
b)Dr Carr’s evidence was that the position needed to be done on a full-time basis, for which he gave detailed reasons. There was also evidence from Dr Carr and Mr Thorburn and from materials tendered by the applicant that ANSTO gave permission to many people to work part-time either because they had returned from maternity leave or for other reasons. There was also evidence that Ms Mayer was a valued employee. In this context, Dr Carr’s assessment that it was necessary for this particular position to be done on a full-time basis would be accepted as correct (or at least a reasonable view). This shows a case-by-case consideration of business needs and not a general or common opposition to part-time work.
These factors make clear the reasonableness in the decision that the product manager position could not (reasonably) be done on a part-time basis. Other factors in support of this view have been detailed by the respondent already as well as the factors under s.7B(2).
The applicant objects to the respondent’s reliance on the factors set out at paragraph 25(e) and (f) of respondent’s submissions. In cross-examination, the applicant acknowledged that the list of childcare centres to which she said she made inquiries were all in her locality. The factors noted in paragraph 25(e) and (f) flow directly from her evidence.
The applicant submitted … that, in order to establish that she was constructively dismissed, she must establish that the respondent considered itself no longer bound by the contract of employment. The applicant has not even come close to establishing this. On the contrary, the evidence reveals that ANSTO considered that it was bound to keep open her position (albeit on a full-time basis, in accordance with the contract) and did so throughout the term of her contract and thereafter.
The applicant contends that ANSTO made a repudiatory breach of its contract by imposing the full-time requirement contrary to s.5(2) of the SDA. This is not a correct analysis of the facts on any view. The contract contained a term which required the applicant to work on a full-time basis. The respondent declined her request to vary a term of the contract. On no view could that constitute a repudiation of the pre-existing contract.
There is simply no breach of the contract at all. If the respondent’s arguments as to the construction of the SDA are not accepted, it may be that ANSTO breached s.5(2) of the SDA in failing to offer the applicant alternative employment on a part-time basis for the remainder of her contract (at two days per week). While that may be a breach of s.5(2) in relation to possible alternative employment, it does not constitute a breach in relation to her existing contract or her position as product manager.
The applicant alleges that she was treated less favourably than a comparator because ANSTO did not take into account her “family reasons” and “EEO considerations”. As to the latter, the applicant never asked Dr Carr whether he had considered EEO considerations or not and cannot now positively assert that he did not. As to the former, Dr Carr indicated that he knew that the applicant had a baby but that he had no information that she was unable to get childcare. There is no evidence that the applicant ever conveyed this information to the respondent at any relevant time. It appears from her own evidence that she thought she had a right to work on a part-time basis; this might explain why she did not attempt to make a case for her request to work part-time but just asserted that she would do so.
The evidence is that Dr Carr’s reason for not agreeing to the applicant to return to work on a part-time basis was that, in his opinion, her position could not (reasonably) be done on that basis from the perspective of business efficacy and need. There is no evidence that her family responsibilities were a reason for a less favourable decision. On the contrary, Dr Carr wanted Ms Mayer back and kept her position open to her, hoping she would come back on a full-time basis (which she never did).
Furthermore, this ground relates to dismissal (s.14(3A)) and does not apply to terms and conditions of possible alternative employment (s.14(2)(a)). Hence, as the applicant was never dismissed, for reasons outlined above (and orally), this ground cannot be made out.
In my view, the refusal of part-time work constitutes a discrimination in terms of of s.5(2) but not s.7A of the SDA. It follows that if Ms Mayer was constructively dismissed the respondent breached s.14(2)(c) but not s.14(3A).
The respondent’s insistence upon the applicant working full-time did not discriminate against the applicant directly because of her family responsibilities. There was no breach of s.7A. I accept Dr Carr’s evidence that his decision that the applicant work full-time in accordance with her contract was a business decision based upon his perception of the respondent’s business needs, not related to the applicant’s family responsibilities. The respondent did not treat the applicant less favourably than a person without family responsibilities would have been treated in the same or similar circumstances. Dr Carr would have made the same decision whether or not Ms Mayer had a young child. There is no evidence that the respondent has a practice or policy of refusing part-time work to its employees who seek it on the basis of family responsibilities. Indeed, the reverse is true. Ms Mayer gave evidence, that I accept, that other employees with family responsibilities were granted part-time work by the respondent. Her evidence is supported by exhibit A10. Accordingly, to the extent that the respondent had a relevant practice, it was to grant wherever possible requests like that made by Ms Mayer. It is that past practice which explains Ms Mayer’s strong expectation that she would be permitted to work part-time as well.
However, the refusal of Ms Mayer’s request constituted indirect discrimination contrary to s.5(2) of the SDA. In that regard, I maintain the view I expressed in Escobar v Rainbow Printing (No 2) at [33] and [37].
Contrary to Mr Lloyd’s submissions, I need no evidence to establish that women per se are disadvantaged by a requirement that they work full-time. As I observed in Escobar v Rainbow Printing and as Commissioner Evatt found in Hickie v Hunt & Hunt women are more likely than men to require at least some periods of part-time work during their careers, and in particular a period of part-time work after maternity leave, in order to meet family responsibilities.
It is unnecessary to decide whether s.5(2) of the SDA relates to ss.5(1)(b) and (c) as well as to s.5(1)(a). The fact is that s.5(2) does not depend on s.5(1) at all to give it meaning. The opening words of both ss.5(1) and 5(2) are the same. The distinction between the two sections is simply that s.5(1) deals with direct discrimination and s.5(2) with indirect discrimination. The provisions are therefore mutually exclusive. The test under s.5(2) is whether a condition, requirement or practice has, or is likely to have, the effect of disadvantaging a person of the same sex as the aggrieved person; in this case, a woman. In this case the relevant condition or requirement was that the applicant work full-time. Such a condition or requirement is likely to have the effect of disadvantaging women because, as I have noted, women have a greater need for part-time employment than men. That is because only women get pregnant and because women bear the dominant responsibility for child rearing, particularly in the period closely following the birth of a child. Discrimination under s.5(2) is either established or not by reference to its own terms, not by reference to s.5(1). In this case discrimination under s.5(2) is established because the respondent insisted upon the applicant working full-time against her wishes. The issue of family responsibilities is only relevant insofar as it establishes that women tend to be disadvantaged by such a requirement.
This approach to the interpretation of s.5(2) is consistent with Parliament’s intention when s.5(2) was enacted. In his second reading speech introducing the Sex Discrimination Amendment Bill 1995, which introduced s.5(2), Attorney-General Lavarch said:
The bill sets out a simpler definition of indirect discrimination. It provides that a person discriminates against another person if the discriminator imposes or proposes to impose a condition, requirement or practice that has or is likely to have the effect of disadvantaging the person discriminated against because of, for example, his or her sex. The focus is on broad patterns of behaviour which adversely affect people who are members of a particular group.
The SDA is beneficial legislation and should be given a generous interpretation, not the narrow, indeed artificial, interpretation sought by the respondent.
The respondent’s conduct breached s.14(2)(c) because the applicant was constructively dismissed by reason of her sex. It was a condition of Ms Mayer’s contract of employment that she work full-time. That condition was maintained when the contract was extended. Ms Mayer’s request for her contract to be varied so that she could work part-time three days per week was rejected. So was her proposal that she work the balance of the week at home. Ms Mayer was unwilling to return to work full-time following the birth of her child, and the refusal of the respondent to vary the contract made it impossible for Ms Mayer to return to work at all. The respondent required Ms Mayer to adhere to the full-time employment term of her contract, which Ms Mayer was unwilling to do. Ms Mayer abandoned her employment under duress. I see no material distinction between a resignation made under duress and the abandonment of employment under duress. This constitutes constructive dismissal: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) IR 200; Allison v Bega Valley Council [1995] NSWIR Com 175. It is not necessary, in my view, for me to find a breach of contract in order to find a constructive dismissal. It is sufficient that the respondent forced the applicant to abandon her employment by its refusal to vary the contract. If I am wrong in that, and if Ms Mayer remained employed after 2 September 2002 as the respondent contends, then the conduct of the respondent would constitute a breach of s.14(2)(a) or s.14(2)(d) of the SDA. The refusal by the respondent to vary Ms Mayer’s employment conditions to permit her to work part-time was, in the context of continuing employment, either the imposition of a discriminatory term or condition of that employment, or a discriminatory refusal to vary conditions of employment.
The conduct of the respondent to refuse any part-time work was not reasonable. It is clear from the Bailey e-mail that, contrary to Dr Carr’s evidence, suitable part-time work was available for Ms Mayer. This was different work to that which the applicant had been doing, but It was important work that the applicant was able to do and that needed to be done. Ms Bailey identified work that could properly occupy Ms Mayer’s time until 3 January 2003 for two days each week. At a minimum, therefore, the respondent should have offered Ms Mayer employment for two days per week for the balance of her contract until 3 January 2003.
The work that Ms Mayer could have performed part-time would have been discrete project work, rather than the performance of her previous functions. Ms Mayer gave evidence of important projects that she could have assisted on. Ms Bailey in her e-mail, stated that there were “many projects” that Ms Mayer could work on. In my view, with a little imagination the respondent could, if it had wished to, found useful work for Ms Mayer to do for three days a week until 3 January 2003.
I accept Mr Beckett’s submission that the respondent’s effort to find part-time work for the applicant was inadequate. The respondent’s refusal of part-time work for three days per week was not reasonable.
It was reasonable for the respondent to refuse Ms Mayer’s proposal for job sharing of her role, or for her to work partly from home. I accept Dr Carr’s evidence that Ms Mayer’s role required both a consistency of approach and regular interaction with other staff. The effective performance of that role would have been problematic if Ms Mayer had worked partly from home, or had shared her duties with another employee. It was clear from Ms Mayer’s own evidence that she would not have been able to work full-time from home while caring for her child.
The claimed breach of contract
The applicant also asserts that the respondent breached an implied term of the contract that it would not conduct itself in a manner calculated to destroy the relationship of trust and confidence between the parties. Such an implied term is well established by authority: Burazin v Blacktown City Guardian (1996) 142 ALR 144 at 151 per Wilcox CJ, von Doussa and Marshall JJ. The argument is made in the alternative to the above allegations of constructive dismissal. The issue in relation to a return from maternity leave case was considered in Thomson v Orica [2002] FCA 939 at [147-148].
I have already dealt with the issue of alleged incidental discrimination. I have found that no contractual issue arises from those events. There was, in my view, no breach of contract at all. The contract was an employment contract requiring Ms Mayer to work full-time. Ms Mayer was entitled to seek to vary the terms of the contract but the respondent was under no contractual obligation to agree. Likewise, the contract was originally for a term of three years, expiring in January 2002. Ms Mayer was entitled to seek to negotiate an extension to the term of the contract. She did so. The parties agreed upon a one-year extension. There was no breach and no repudiation of the contract by the respondent.
I accept Mr Beckett’s submission that an implied term of mutual trust and confidence was included in the contact. However, that term was not breached. The respondent, through Dr Carr, considered in good faith the applicant’s requests for a two-year extension to her contract, and for part-time work following Ms Mayer’s completion of her maternity leave. Dr Carr dealt with both requests on the basis of the respondent’s interests, as he saw them at the time. In so doing the respondent unlawfully discriminated against the applicant, in breach of the SDA, but a breach of the SDA does not of itself establish a breach of an implied term of trust and confidence in an employment contract.
It was Ms Mayer who abandoned her employment, albeit under duress. She did so because she considered herself unable to comply with her obligation to work full-time, under the contract. She had made her position clear to the respondent, and the respondent insisted upon Ms Mayer’s compliance with the full-time work contractual term. Under the contract the respondent was entitled to do so. The result was that Ms Mayer was constructively dismissed when she refused to work full-time. That was discriminatory but was not a breach of the contract, because the respondent was entitled to dismiss the applicant upon notice. The real issue is how much notice was needed?
The contractual entitlement of the respondent to dismiss the applicant was set out in clause 10 of the determination made under s.24 of the ANSTO Act on 4 December 1998 in relation to the employment of Ms Mayer. That determination contained the basic terms of the contract of employment. Clause 10 provided that Ms Mayer’s employment could be terminated on one month’s written notice or by payment in lieu of salary for a period of one month. However, the determination became subject to a series of ANSTO Enterprise Agreements certified under the Workplace Relations Act which provided that individual contracts will not disadvantage contract employees when compared with the terms of the ANSTO Award and Certified Agreement viewed as a whole. In other words, more generous provisions contained in the Certified Agreement applicable to contract employees prevail over the contractual terms in the determination. The 2002 ANSTO Enterprise Agreement (exhibit A1) relevantly provides that an employee having between three and five years continuous service is entitled to “at least three weeks” notice of termination (clause 8.5.1) and that payment may be made in lieu of notice (clause 8.5.3). Such payment is to be made on the basis of all amounts payable under the contract of employment (clause 8.5.4).
Clause 10 of the Enterprise Agreement deals with abandonment of employment. The clause permits management to give written notice to an employee with more than 12 months continuous service who is absent without permission for a continuous period of not less than four weeks, that the employee will be deemed to have retired two weeks after the notice is given unless the employee returns to duty or explains the absence and applies for leave. The respondent did not take advantage of this provision. In fact, the respondent treated the applicant as still being employed until 28 May 2003 (the last day of the trial of this matter).
However, the reality of the situation is that Ms Mayer accepted her constructive dismissal from employment due to her inability to comply with the full-time work requirement. The issue then is, what period of notice was Ms Mayer entitled to under the contract? It could not have been shorter than three weeks, nor (at least in the context of an unlawful dismissal) longer than six months (the maximum period in respect of which payment in lieu of notice could be awarded under ss.170CH(8) and 170 CR(2) of the Workplace Relations Act. Subject to those limitations the condition is to be determined by reference to the general law.
I dealt with this issue in Windross v Transact Communications Pty Ltd [2002] FMCA 145 at [57] – [58]. There is implied into this contract of employment a term of reasonable notice, subject to the minimum and maximum limitations that I have identified. What is reasonable notice depends upon an assessment of the particular employee and the particular job (Windross at [62]). In this case, in my view, the applicant was entitled to receive three months notice of termination, bearing in mind her age, her relative lack of mobility, her expectation of continuing fixed term employment with the respondent, her length of service, her qualifications, experience, professional standing and the fact that, as a CSS member, Ms Mayer would receive no employer funded superannuation benefits unless she preserved all of her benefits in the fund until retirement age. In addition, I have taken into account the nature of Ms Mayer’s employment. The job was an important one but of middle ranking status on a salary above average weekly earnings.
I have already found that the respondent breached the SDA by not offering Ms Mayer part-time employment until the expiration of her contract on 3 January 2003. Under the SDA it would not have been reasonable for the respondent to (and it did not purport to) terminate the contract prior to that date. In addition, the respondent had no cause to terminate the contract under the Enterprise Agreement prior the expiration of the contract.
I have also found that the respondent breached the SDA by denying the applicant a two-year extension of her contract from 3 January 2002. However, that contract required Ms Mayer to work full-time and, after 3 January 2003, it was reasonable for the respondent to refuse further part-time work, as there is no reliable evidence that ongoing suitable part-time work would have been available. Accordingly, Ms Mayer’s contract could have been terminated by the respondent on reasonable notice (that is, three months) with effect from 3 January 2003. In other words, the contract could properly have been terminated on 3 April 2003.
I do not regard the implied term of reasonable notice under the contract as having been breached in the absence of any actual notice of termination. The constructive dismissal that took place on 2 September 2002 is a conclusion of law and the respondent regarded the employment contract as being still on foot. However, it is now accepted by both parties that the employment contract is at an end. In the circumstances, it is open to me to determine what payment Ms Mayer is entitled to, in lieu of notice, under the contract. Under the contract, Ms Mayer is entitled to receive payment in lieu of notice from the date notice could lawfully be given. That date was 3 January 2003, not the date of the constructive dismissal (2 September 2002).
Damages
The measure of damages for a breach of the SDA is the same as in tort, namely, that which will restore the applicant to the position she would have been in if the wrong had not been committed. The measure of damages in contract is that which will restore the applicant to the position that she would have been in if the contract had been performed. In this case the contract has not been breached but Ms Mayer is entitled to receive what is due to her pursuant to the contract.
If the respondent had not breached s.14(2)(a) of the SDA Ms Mayer would have had her contact extended until 3 January 2004. If the respondent had not breached s.14(2)(c) of the SDA Ms Mayer would have been permitted to work part-time three days per week between 2 September 2002 and 3 January 2003. Thereafter, the respondent was entitled to terminate Ms Mayer’s employment on three months notice.
Following the trial of this matter, I am informed that the respondent has paid the applicant her leave entitlements upon the termination of her employment. On that basis I find that Ms Mayer has suffered no loss in terms of her accrued leave entitlements. However, she has suffered economic loss in terms of lost salary, motor vehicle benefits and superannuation.
During the period from 2 September 2002 to 3 January 2003 Ms Mayer was entitled to receive a full-time salary of $65,686.40 pa. This figure must be reduced by 40 per cent because Ms Mayer was not available for full-time work. She was only available to work three days per week. I calculate Ms Mayer’s lost salary over this period as $13,642.56. The applicant calculates the value of the employer funded motor vehicle at $8,302.50 pa. I accept that the lost value of the motor vehicle over this period, reduced by 40 per cent is $1,724.37. The value of lost employer funded superannuation benefits is very difficult to determine, because Ms Mayer is a member of the CSS, a defined benefits scheme which is funded from consolidated revenue rather than from employer contributions. At trial I referred to a Commonwealth estimate of the value of the employer component of CSS benefits at 18 per cent of salary. The respondent stated in a final submission filed on 22 July 2003 that it does not accept but would not dispute that figure. That is the figure I will use. On that basis, Ms Mayer lost $2,455.67 in superannuation benefits up to 3 January 2003. Her total economic loss up to that date is therefore $17,823, rounded to the nearest dollar. The salary component is taxable as income.
After 3 January 2003, Ms Mayer should have received three months notice or payment of her entitlements for three months in lieu of notice. The notice period expired on 3 April 2003, a period of 13 weeks. The salary Ms Mayer was entitled to receive from 4 January 2003 was $65,686.40 pa, so Ms Mayer has lost $9,852.96 (60 per cent of $16,421.60). The value of the motor vehicle over this period was $1,245.38 (60 per cent of $2,075.63). The value of Ms Mayer’s lost superannuation benefits was $1,773.53 (18 per cent of $9,852.96). Ms Mayer’s total economic loss over this period was therefore $12,872 rounded to the nearest dollar. The salary component is taxable as an eligible termination payment.
Ms Mayer did not suffer any economic loss after 3 April 2003 that is compensable by the respondent because the respondent was entitled to terminate her employment as from that date. In addition, Ms Mayer did not make serious efforts to find suitable alternative employment, and has therefore failed to mitigate any loss that she may have suffered after that date. I do not regard any failure to mitigate loss prior to that date as material.
The respondent asserts that the applicant also failed to mitigate her loss by not making adequate enquiries about childcare. I reject that contention. It is true that Ms Mayer’s efforts to find child care were desultory and limited. She only looked for full-time places. However, Ms Mayer was proceeding (correctly) on the basis that her employer required her to work full-time, and she did not want to. Ms Mayer’s efforts to find child care are irrelevant to the issue of mitigation. The evidence of those efforts simply underscores what has already been established: Ms Mayer was unwilling to work full-time after 2 September 2002.
I find that Ms Mayer has suffered economic loss in the sum of $30,695.
Ms Mayer has also suffered non-economic loss. As a result of the refusal of part-time work the applicant suffered depression which was treated by a course of anti-depressants for a period up until the end of 2002. The applicant ceased breast-feeding during this time because of her concerns about the effect of the medication on her son. No evidence was led from her doctor. But there is in evidence a medical diagnosis of post-natal depression. Ms Mayer asserts that the diagnosis was wrong and not made on the basis of her history. It is unnecessary to decide whether Ms Mayer was suffering from post-natal depression. She was depressed, and her state of mind would have been adversely affected by the respondent’s refusal of part-time work.
The applicant submits that the non-economic loss on this issue should be in excess of that awarded in Escobar because of the depression and its treatment. I agree. An amount of $4,000–$5,000 would be reasonable. It is important to consider that damages for non-economic loss should not be minimal as this would tend to trivialise or diminish respect for the public policy behind anti-discrimination legislation: see Alexander v Home Office [1998] 1 WLR 968 at 975; Bonella v Wollongong City Council [2001] NSWADT 194 at 121.
I will award the sum of $5,000 for non-economic loss.
The applicant also seeks interest up to judgment at the rate of 10.5 per cent. I dealt with the question of the appropriate rate of pre judgment interest in human rights cases in Wattle v Kirkland (No.2) [2002] FMCA 135 at [72]. Given the present static interest rate regime I agree that a rate of 10.5 per cent would be appropriate. Ms Mayer’s cause of action was complete by 2 September 2002. Interest should be paid between that date and the date of judgment. I will award $3,599 by way of pre judgment interest.
I note that the respondent has agreed to provide the applicant with an apology. That is to be commended and no order is required.
I will hear the parties as to costs.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 6 August 2003
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