Mitchell v Regional Community Association Inc. Steve Jarron - [2013] QCAT 264

CITATION:

Mitchell v Regional Community Association Inc. Steve Jarron [2013] QCAT 264

PARTIES:	Louise Mitchell (Applicant)
V
Regional Community Association Inc Steve Jarron (Respondents)

APPLICATION NUMBER:

ADL082-12

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

10 May 2013

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

DELIVERED ON:

6 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondents pay the applicant the sum of $4,500.00 by 19 July 2013.

CATCHWORDS:

Discrimination – where applicant was on maternity leave – where on she proposed return to work her position was made redundant – where the redundancy as a result of discrimination as a consequence of the attribute of pregnancy – whether the respondents engaged in direct discrimination as a result of an attribute

Anti Discrimination Act 1991 section 10

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Mitchell was represented by Mr John Mitchell

RESPONDENT:

No appearance.

REASONS FOR DECISION

Ms Mitchell commenced working for the Regional Community Association Inc (“the Association”) as a casual employee in March 2008. In June 2008 she was successful in gaining a permanent part time position as a Senior Worker of the Mental Health Outreach Support Program with the Association. In early 2010 Ms Mitchell applied for six months maternity leave which was approved by the Association and commenced on 22 April 2010. In October 2010 she applied to extend her maternity leave for a further 6 months. The extended leave was approved. This meant she was due to return to work on 27 April 2011.
On 22 March 2011 Ms Mitchell contacted Donna Freeleagus, her manager, to arrange an appointment to discuss her return to work. She received a response email on 25 March 2011 in which she was advised that a number of Board members had resigned and the three remaining Board members including Mr Bruce Mills “took a vote to restructure the organisation”. As a result of that restructure the position of Annette Griggs, the Chief Executive Officer was made redundant. She was also advised about the appointment of a “temporary general manager”. As a result of this reorganisation, Ms Freeleagus told Ms Mitchell that she was having a meeting with Bruce Mills and the General Manager later that day and her “return to work would be discussed”. She then said she had some things to “work through” and that the acting General Manager, would be in touch with her.
The next contact Ms Mitchell had with the Association was a letter from Mr Steve Jarron, acting General Manager, who advised her that the Association was “unable to offer you employment in a position suited to your skills”. The letter went on to say that when Ms Mitchell took maternity leave, one of the terms of her employment was that it was guaranteed “for the duration of the funding agreement”. The funding agreement referred to ended on 30 June 2010.
In her statement of evidence, Ms Mitchell said she was shocked when she received this letter because she had no expectation that her employment was at risk not only because she was on maternity leave, but also she had had positive relations with her employer. She says that she experienced emotional and physical reactions to this dismissal through sleep deprivation, grief, anger and distraction. She believes that her dismissal was as a result of her being on maternity leave and the “restructure” was a convenient means to not re-employ her.
Ms Mitchell made a complaint to the Anti-Discrimination Commission because she believed she was discriminated against by the respondents. She says that she was discriminated against on the basis of the following attributes; pregnancy and parental status.
The respondents contend that the decision to terminate Ms Mitchell’s employment is not as a result of any discriminatory conduct. The decision was made in reliance on, firstly; a term of her employment agreement that her position would remain open while funding was available and secondly; when funding for the position ceased, there was a general restructure which made her position redundant. It is contended that at the time of her return to work, there were no vacancies within Ms Mitchell’s previous work area and none within other parts of the organisation that were suited to Ms Mitchell’s skill sets.
Furthermore, in May 2011 Ms Mitchell was advised that there was a possibility of a part time position becoming available within the respondents “youth connections program”. Ms Mitchell did not respond to that request and therefore, it seems to be contended that she did not take steps to properly mitigate any loss that she might have incurred.
The Anti-Discrimination Act 1991 provides that a person must not discriminate in the workplace by dismissing a worker. Direct discrimination on the basis of an attribute happens if a person treats or proposes to treat a person with an attribute less favourably than a person without the attribute is or would be treated in circumstances that are the same or not entirely different.[1] It also revised that motive for discriminating is irrelevant.[2]
[1] Anti Discrimination Act 1991 s 10(1).
[2] Ibid s 10(3).
The difficulty with the respondent’s contentions are that if it is correct to say that Ms Mitchell’s position became redundant when the funding ceased why wasn’t she advised of this fact when it occurred at the end of June 2010. Ms Griggs, who was the Chief Executive Officer at the time, says that when the funding ceased in June 2010, the program was essentially refunded under a new agreement which took effect in July 2010. All those employed under the previous funding regime then had their employment tenures renewed under the revised program; this included the worker who had been employed to cover the term of Ms Mitchell’s maternity leave. Ms Griggs who was there until July 2011 said that at the time of Ms Mitchell’s planned return to work there was a part time position available for her at the end of her maternity leave.
At the hearing of the application there was no appearance by either respondent and therefore, no evidence given to support the contentions set out in the response to Ms Mitchell’s application.
Despite the lack of evidence from the respondent, the objective facts support Ms Mitchell’s contention that the only basis upon which her employment was terminated is due to her time off work on maternity leave, albeit during a period where there was some restructure within the association. I am therefore satisfied that there has been direct discrimination against her which has resulted in the emotional and physical symptoms she complains on in paragraph 10 of her statement of evidence and referred to above.
Ms Mitchell has made a claim for compensation. The claim includes general damages for loss of income. The claim for loss of income in the sum of $38,438.40 is base on a loss of 14 hours per week for 12 months and 28 hours per week for 6 months at a rate of $26.40/hr.[3] When asked about her attempts to return to work after she was advised that her position was no longer available, Ms Mitchell told me that she had not looked for any other work because she then made a decision to return to study to complete a course that she was part way through. At the conclusion of that course at the end of 2011, she then made a decision that she would prefer to stay home and care for her young child.
[3] Statement of the Applicant 18 March 2013.
Although there may well have been some initial period of unemployment while she looked for other employment, on the basis of this evidence the Association cannot be held liable for her total loss of income. It would be reasonable to allow a short period of time for her to look for other work but certainly not over a period of 18 months. It is also relevant that she did not make any attempt to apply for the position that the Association says, in the response that did become available in the Association in May 2011. Ms Mitchell has a positive duty to mitigate her loss and I am satisfied from her evidence that she has not discharged that duty.
Accepting that a position was potentially available in May 2011 it would be reasonable to allow one month’s loss of income which is 56 hours at a rate of $26.40 per hour which is about $1,500.00. I will not deduct any tax from this because it seems that her total annual income would be below the tax threshold. For the general damages for the emotional upset as a result of her dismissal, I propose to allow $3,000.00. Therefore the total award is $4,500.00.
I therefore order that the Association pay to Ms Mitchell the sum of $4,500.00 by way of compensation for discrimination.