McIntosh v Australian Postal Corporation

FEDERAL COURT OF AUSTRALIA

McIntosh v Australian Postal Corporation [2001] FCA 1012

DISCRIMINATION – sex discrimination – application for interim injunction pending enquiry and conciliation process before Human Rights and Equal Opportunity Commission – employer proposing to terminate employment on payment in lieu of notice – concession that employment relationship has broken down – whether balance of convenience in favour of grant of injunction – whether costs should be paid by unsuccessful applicant

Sex Discrimination Act 1984 (Cth) s 5(1) and (2)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PP(1)

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428 mentioned
Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 482 mentioned
Bostik (Australia) Pty Ltd v Gorjevski (No1) (1992) 35 FCR 20 at 32 mentioned

JANE McINTOSH v AUSTRALIAN POSTAL CORPORATION
V 740 OF 2001

HEEREY J
27 JULY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 740 OF 2001

BETWEEN:	JANE McINTOSH APPLICANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	27 JULY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 740 OF 2001

BETWEEN:	JANE McINTOSH APPLICANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT

JUDGE:	HEEREY J
DATE:	27 JULY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant seeks an injunction preventing the respondent Australian Postal Corporation (Australia Post) from terminating her employment pending the conciliation of this matter by the Human Rights and Equal Opportunity Commission (the Commission) and an interim injunction in the same terms until the Commission has completed an inquiry and conciliation process, which will take about four weeks from today. 

2. The applicant is currently employed by the respondent Australia Post as a corporate account executive.  She works on the Telstra account.  She commenced that employment on 20 March 2001.  It is an important senior appointment carrying a salary of $90,000 with potential for bonuses and the like up to $140,000.  Telstra is Australia Post’s largest customer.

3. The applicant lodged a claim with the Commission on 9 July 2001 under the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1984 (Cth). On the hearing before me her case was put only under the latter Act. It was said that the applicant had not been given the same treatment as her male peers. The management structure in place across the corporate accounts was not made to work for her and she was not treated as or given the authority necessary for her to meet her accountability as the senior executive. This was said to be contrary to s 5(1) of the Sex Discrimination Act.  It was also said that, contrary to s 5(2), that there was a condition, requirement or practice imposed on her which was likely to have…