Muller v Westpac Banking Corporation

[2015] NSWCATAD 251

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Muller v Westpac Banking Corporation [2015] NSWCATAD 251
Hearing dates:	22 September 2015
Date of orders:	02 December 2015
Decision date:	02 December 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	Leave is refused for the applicant’s complaint of sex discrimination to proceed.
Catchwords:	ANTI-DISCRIMINATION – leave to proceed when complaint declined as lacking in substance - complaint of sex discrimination against employer – whether fair and just for complaint to proceed – complaint lacks substance – leave refused
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCA 388
Category:	Principal judgment
Parties:	Rhonda Muller (Applicant) Westpac Banking Corporation (Respondent)
Representation:	Counsel: M Klooster (Applicant) M Seck (Respondent)   Solicitors: Ghobrial Legal (Applicant) Kemp Strang Lawyers (Respondent)
File Number(s):	1510474

reasons for decision

Introduction

1. Ms Muller complained to the President of the Anti-Discrimination Board that her employer, Westpac Banking Corporation, had discriminated against her on the ground of sex. The President declined the complaint on the basis that it was lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or ‘leave’ for the complaint to go ahead: Anti-Discrimination Act, s 96. I have refused leave in this case because the complaint lacks substance and it would not be fair or just for it to proceed.

Principles for granting leave – whether “fair and just”

2. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:

1. emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

2. found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

3. concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and

4. noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

3. The issue to be determined is whether it is fair and just in all the circumstances for the complaints to proceed. Ms Muller bears the onus of persuading the tribunal that it is appropriate that leave be granted: Jones v Ekermawi [2009] NSWCA 388 at [40].

Background

4. Ms Muller commenced employment with Westpac in 1989. From January 2011 she was employed as Operational Manager, Lending Support. In November 2014 her job title changed to Operational Risk Manager. Her direct supervisor was Mr Hynd, Director of Private Wealth Operations. Ms Muller remains employed at Westpac but is currently on leave.

5. During the first 12 months that Ms Muller was in the role, her performance had been measured as “effective” but it, according to Westpac, deteriorated in 2013. In Westpac’s view Ms Muller’s conduct resulted in key stakeholders becoming disgruntled with her performance and this ultimately resulted in her being given a “needs development” rating. Mr Hynd commenced informal performance management of Ms Muller in order to try to lift her performance. He said that although Ms Muller initially seemed to accept the need to conduct this process, and was engaged in improving her performance, over time her level of engagement deteriorated and in April 2014 she commenced on sick leave.

6. Ms Muller does not dispute the legitimacy of the “needs development” rating that she was given. Her complaint relates to the process by which that rating was given and Westpac’s treatment of her from September 2013 to January 2014.

The alleged conduct

7. Ms Muller makes the following eight allegations of sex discrimination:

1. On 17 December 2013, without requesting her input, Mr Hynd directed that Ms Muller prepare team objectives by 24 January 2014 (the day she was due to commence long service leave) and not by 31 March 2014 when other team objectives were due. This meant that Ms Muller did not have sufficient time to complete and deliver the objectives especially given the 10 working days of mandatory leave over Christmas.

2. feedback was sought from State Managers regarding Ms Muller’s ability to meet business needs on both a professional and personal level;

3. she was not aware of, nor did she agree to, the development plan created for the performance period 2013/2014;

4. she was not reimbursed for the monthly coaching sessions for the period 2012/2013;

5. she was required to present her needs action plans to Senior Managers on less than 24 hours’ notice;

6. no explanation was given for Senior Management changing the “effective” rating given by Mr Hynd to a “needs development” rating;

7. she did not receive a 10% - 13% annual bonus that other employees received; and

8. she was refused a taxi voucher to travel home after an end of year dinner.

8. She claims compensation for the hurt and humiliation and an apology.

Legislative scheme

9. Ms Muller alleges that each of the eight allegations constitutes a breach of s 25(2) of the Anti-Discrimination Act:

It is unlawful for an employer to discriminate against an employee on the ground of sex:

(a) in the terms or conditions of employment which 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 , or

(c) by dismissing the employee or subjecting the employee to any other detriment.

10. Westpac does not deny that the conduct about which Ms Muller complains relates to the terms or conditions of her employment or that it constitutes a ‘detriment’. Westpac accepts that it is vicariously liable for any unlawful acts of its employees: s 53.

11. The complaint is one of direct sex discrimination as defined in s 24(1):

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex , or

12. The effect of s 4A is that sex does not have to be the dominant or a substantial reason for the less favourable treatment as long as it is a reason.

13. In order to substantiate the complaint Ms Muller would have to prove that:

1. Westpac treated her less favourably than in the same circumstances, or in circumstances which are not materially different, it treated or would have treated a male employee; (differential treatment) and

2. a reason for the treatment was that she is a woman (causation).

14. The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. As with the vast majority of complaints of discrimination, a causal link between Ms Muller’s sex and the alleged treatment would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant:

“...

(b) an inference must be reasonably drawn on the basis of the primary facts;

(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ;

(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

(e) the inference must be a logical one, and not supposition;

(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.”

15. In Australia, the evidential burden remains on the applicant to prove discrimination. There is no obligation on respondents to explain the reasons for their conduct once it has been established that there has been less favourable treatment. In Department of Health v Arumugum [1988] VR 319, the applicant, who was of Indian national origin, was not appointed to a position of Psychiatrist Superintendent at a hospital in Melbourne. The person who was appointed to the position was a less qualified Caucasian. On appeal, the Victorian Supreme Court held that as the facts, if unexplained, only raised the inference that some irrelevant factor had influenced the decision, it could not be concluded that race was that factor. Similar reasoning was applied by the House of Lords, as it then was, in Glasgow City Council v Zafar [1997] IRLR 229, CS. A decision maker is not bound to draw an inference of race discrimination on the basis that there is no satisfactory explanation for the unequal treatment. Such an inference may be available but every case depends on its own facts.

Allegation 1 – expected to prepare team objectives sooner than others

16. The first allegation is that Ms Muller had to prepare her objectives earlier than others and that she was not given enough time to prepare those objectives.

17. Ms Muller had taken one month of recreational leave in October 2013 and was due to take long service leave from 27 January 2014 to a date after the end of the reporting period on 31 March 2014. On 17 December 2013 Mr Hynd told Ms Muller that he had decided to “re-craft” her tasks. He gave her six tasks all of which were due by 24 January 2014 and told her that her performance would be measured against those tasks. Ms Muller told Mr Hynd straight away that two of those tasks could not be delivered by 24 January 2014 and that she had previously requested assistance with respect to another task.

18. Ms Muller alleges that Mr Hynd’s decision did not comply with the following obligations in the Westpac Group Enterprise Agreement 2013:

1. The performance objectives setting and assessment process will be fair and transparent and based on both performance objectives (inclusive of measures and targets) and values based behaviours. [44.2]

2. Approved absences from an Employee’s normal duties will be excluded from the period to which their normal performance objectives apply if the absence materially impacts upon his or her performance rating. [44.6]

3. Performance objectives will be communicated to Employees at the beginning of the performance period. Any changes during the period for which performance objectives are set will be by agreement between the Employee and/or team and their immediate People Leader . . . [44.7]

19. According to Ms Muller there is nothing in the Enterprise Agreement that states that employees with a “needs development” rating should be treated any differently from other employees. That status should have no impact on any internal decision.

20. Alternatively Ms Muller submits that her “needs development” status should have prompted Mr Hynd to adopt a shared responsibility approach. Because Ms Muller took leave in October 2013 and was scheduled to take further leave in 2014 she was due to be absent for more than half of the performance reporting period. Her absence would materially impact on her performance and Mr Hynd should have set role objectives for both her and the person who was to replace her during her absence on a shared responsibility basis.

21. Mr Hynd took a “shared responsibility” approach with a male employee, Mr Phokela, who took long service leave from August 2014 to October 2014. Mr Phokela’s objectives were evenly dispersed across the Operations Team during his absence.

22. Ms Muller acknowledges that there is no direct evidence of sex discrimination but in the absence of any reasonable explanation as to why the Enterprise Agreement was not adhered to and why Ms Muller was treated differently from Mr Phokela, Ms Muller says that one of the reasons for this treatment was that she is a woman.

23. Westpac does not concede that it failed to adhere to the Enterprise Agreement. That Agreement is expressed in general terms and there are factual disputes as to certain matters including when Ms Muller’s performance objectives were set. Westpac appears to have complied with the provision in 44.6 to exclude periods of approved absences from the period to which an employee’s normal performance objectives apply. Whether or not performance objectives setting and assessment process is “fair and transparent” is a value judgment.

24. The reason Westpac gave for requiring the tasks to be completed by 24 January 2014 was that Ms Muller was going to be on leave after that date. Westpac says that Mr Hynd considered that it would be unfair to Ms Muller to set objectives to 31 March 2014 when she would not be at work to fulfil them. According to Westpac this was a reasonable business decision that was made for the benefit of Ms Muller.

25. In my view, a Tribunal hearing this matter would be highly unlikely to draw an inference that Ms Muller’s sex was a reason for these decisions. Mr Phokela’s situation was different because he was not ranked as “needs development”. It is likely that a Tribunal hearing this matter would accept that the decisions were based on the ground that because Ms Muller was ranked as “needs development” and she was going to be on leave from the end of January 2014, her tasks needed to be re-adjusted. Doing so meant that Ms Muller could attempt to complete them and her performance could be evaluated during the time when she would be at work. Even if that decision was regarded as unfair because she was not given enough time, that does not give rise to an inference that it was based on her sex.

26. This allegation lacks merit and it would not be fair or just for it to proceed.

Allegation 2 – feedback sought from State Managers

27. Mr Hynd says he sought feedback about Ms Muller from State Managers to ensure that objectives were aligned to the needs of the business. Mr Hynd discussed this process with Ms Muller before the feedback was sought and Ms Muller provided direct input into the nature of the objectives including milestones and timelines to delivery. She did not raise any objections to the feedback being sought at the time. She did object to an email that Mr Hynd sent to State Heads seeking this feedback. Mr Hynd says he was taken by surprise by this objection and addressed Ms Muller’s concerns immediately.

28. Westpac submitted that this step was a reasonable and usual step taken for an employee who was rated as “needs development” to ensure that objectives and performance assessment were fairly set. Ms Muller’s response was that neither the Enterprise Agreement nor any internal policy or procedure stipulates that she should be treated any differently from her colleagues due to her “needs development” status.

29. In the absence of any explanation as to why the Enterprise Agreement was not adhered to and why Ms Muller was treated differently from her male colleagues she submitted that one of the reasons for that treatment was because she is a woman.

30. The fact that there are no internal practices and procedures which state that an employee with a “needs development” status should be treated differently, does not materially assist Ms Muller’s case. As a matter of normal business practice, it is logical that an employee with a “needs development” status may be treated differently from other employees. In my view, a Tribunal hearing this matter would be highly unlikely to draw an inference that Mr Muller’s sex was a reason for this decision.

31. This allegation lacks merit and it would not be fair or just for it to proceed.

Allegation 3 – unaware of development plan

32. Ms Muller’s performance was to be measured against the development plan. She says that she was not made aware of that plan, nor did she agree to it. The Enterprise Agreement requires at [44.7] that performance objectives will be communicated to employees at the beginning of the performance period and that any changes will be by agreement between the employee and their supervisor.

33. Westpac states that a development plan was set for Ms Muller at the same time as the rest of the development teams’ plans were set. The development plan was documented in Westpac’s internal Human Resources system. Ms Muller says that even if that is correct, it does not demonstrate compliance with the obligations imposed by the Enterprise Agreement. In the absence of any reasonable explanation as to why the Enterprise Agreement was not adhered to and why Ms Muller was treated differently from her male colleagues, she submitted that one of the reasons for such treatment is that she is a woman.

34. If Ms Muller could prove that she alone was not told of her performance objectives and that there was a breach of the Enterprise Agreement that may be regarded as unfair or unreasonable. But, in my view, a Tribunal hearing this matter would be highly unlikely to draw an inference that Mr Muller’s sex was a reason for this decision.

35. This allegation lacks merit and it would not be fair or just for it to proceed.

Allegation 4 - reimbursement for continuous education

36. Ms Muller participated in seven life coaching sessions. She asserts that these sessions were part of the continuous education for 2012/2013 and she should be reimbursed for the expenses incurred. They were included in her April 2013 to September 2013 development plan. Ms Muller says Westpac received a direct benefit from her attending these sessions because they did not have to pay for other development training. It also received an indirect benefit because as an employee she was receiving external training and development.

37. According to Westpac these sessions were for her personal growth and were not related to any Westpac approved coaching or training. Although Mr Hynd was supportive of Ms Muller participating in these sessions he did not require her to attend nor did he have any choice with respect to her attendance. These sessions were not related to her role and did not satisfy Westpac’s criteria for study leave or funding. According to Westpac it was unreasonable for Ms Muller to expect it to pay the costs of these sessions.

38. Ms Muller contends that Westpac reimbursed male staff members’ expenses incurred by them as part of their continuous education. In the absence of any reasonable explanation as to why Ms Muller was treated differently from her male colleagues she submits that one of the reasons for such treatment is that she is a woman.

39. The reason Westpac gives for refusing to reimburse Ms Muller for life coaching sessions was that they did not regard them as compensable training. That is an entirely plausible explanation for their decision. No inference of sex discrimination arises.

40. This allegation lacks merit and it would not be fair or just for it to proceed.

Allegation 5 - presentation of needs action plans to senior managers

41. At 3 pm on Thursday, 21 November 2013 Mr Hynd asked Ms Muller to present her action plan to Senior Managers and colleagues the following day. She submits that providing her with less than 24 hours’ notice was not a fair and transparent assessment process as required by [44.2] of the Enterprise Agreement.

41. Ms Muller did not attend the following day due to illness.

42. Westpac denies that Ms Muller was singled out to present her action plan to Senior Managers. Because her performance rating was “needs development” in the 2012/13 performance year, it was considered appropriate and advantageous to ensure that the State Managers endorse the short term objectives being set for Ms Muller. In Westpac’s opinion, that was done in anticipation that successful execution of these objectives would lead to a return to an “effective” performance rating. It was appropriate to speak to State Managers because one of Westpac’s concerns was her inability to manage incidents that had adversely affected State Managers and their clients.

43. All of Ms Muller’s colleagues received performance ratings above “needs development” and accordingly it was not necessary to require them to present their action plans to Senior Managers.

44. Ms Muller’s primary submission is that in the absence of some objective evidence such as internal policy and procedure, her “needs development” status should have had no impact on any internal decision. As a matter of normal business practice, it is logical that an employee with a “needs development” status may be treated differently from other employees. Even if Ms Muller was treated differently because of her “needs development” status, that does not give rise to an inference that sex was one of the reasons for that treatment.

45. Alternatively Ms Muller submits that her “needs development” status should have resulted in Mr Hynd providing her with more time than other employees to properly prepare and present her action plan to Senior Managers. Direct discrimination requires no more than formal equality. There is no obligation to treat a female employee more favourably than a male employee..

46. This allegation lacks merit and it would not be fair or just for it to proceed.

Allegation 6 - no explanation for change to rating

48. Mr Hynd put forward Ms Muller as an “effective” employee for the 2012/2013 performance year. In discussions with Ms Muller at the half-year performance review on 31 March 2013 she was asked how she believes she had performed in the first six months of the performance year. She indicated she had not performed satisfactorily and tendered her resignation. Mr Hynd confirmed that her performance had not been satisfactory and that this was due mainly to her failing to manage a situation which became uncontrollable and damaged the business. Mr Hynd encouraged Ms Muller to reconsider her position and to work through her performance issues. As a result of these discussions Mr Hynd says that he focused the subsequent performance review sessions around coaching to better engage with and influence key stakeholders.

49. As a result of an “alignment session”, with other senior managers, the “effective” rating was changed to “needs development”. An “alignment session” is a process whereby employee performance across the broader team is assessed and compared. They are a standard part of Westpac’s performance rating system and are overseen by Human Resources. Neither Mr Hynd nor Ms Muller attended the alignment session.

50. Ms Muller submits that, as her direct supervisor, Mr Hynd was in the best position to assess her performance. Ms Muller is also aggrieved because the changes were made without consulting her and without providing her with reasons. In her view, Westpac has failed to assess her performance in a fair and transparent manner as required by clause 44.2 of the Enterprise Agreement. There was no evidence that male staff members were subjected to the same alignment session process. In the absence of any reasonable explanation as to why the Enterprise Agreement was not adhered to and why Ms Muller was treated differently from her male colleagues she submits that one of the reasons for such treatment is that she is a woman.

51. In my view, a Tribunal hearing this case is likely to accept Westpac’s explanation of the alignment process. Even if Westpac’s conduct was considered unfair or inconsistent with the Enterprise Agreement, there is no basis for an inference that Ms Muller’s sex was a reason for that conduct.

52. This allegation lacks merit and it would not be fair or just for it to proceed.

Allegation 7 – denial of 10-13% annual bonus

53. Ms Muller is entitled to a 10% bonus if her performance rating is “effective”. She did not receive a bonus for the 2012/2013 year. Ms Muller contends that every other team member was awarded a bonus for their performance in the 2012/2013 year. Westpac contended that there were employees across the broader team, both female and male, who qualified, and who did not qualify, for a bonus.

54. Ms Muller chose another employee, Josh Bunney, with whom to compare herself. He had an “effective” rating at the time and received a bonus in 2012. Ms Muller also had an effective rating at the time but did not receive a bonus and was told that no other team member was getting a bonus.

55. In the absence of any reasonable explanation as to why Ms Muller was treated differently from Mr Bunney Ms Muller submits that one of the reasons for that treatment is that she is a woman.

56. Westpac stated that there was evidence that Ms Muller did not satisfy the requirements for an “effective” rating and therefore she did not qualify for a bonus. The decision to rate Ms Muller as “needs development” for 2012/2013 was made after consideration and debate about her performance during the alignment session.

57. Singling out a particular male who had an effectiveness rating and who received a bonus would be unlikely to satisfy a Tribunal hearing this case that a reason Ms Muller did not receive a bonus was her sex. Her own evidence is that every other team member, male and female, received a bonus for their performance in 2012/2013. If that is correct, sex cannot have been a reason for the decision not to give her a bonus.

58. This allegation lacks merit and it would not be fair or just for it to proceed.

Allegation 8 - denied a travel voucher to the Christmas function

59. An off-site event to be followed by a team dinner was scheduled for 18 November 2013. Ms Muller requested a cab-charge docket to travel home after the dinner but was told that she was not eligible. On the morning of the off-site Ms Muller told Mr Hynd that she was unwell and would not be attending the off-site or the dinner.

60. Westpac explained that the off-site was a day event to be followed by a team dinner to celebrate the achievements of the 2012/13 year. Mr Hynd told the team that the dinner was expected to finish before 8:30 pm and there would be no need for taxi reimbursements to be provided. Mr Kitchener, who was Mr Hynd’s supervisor, attended the dinner. The dinner finished much later than originally intended and at the dinner Mr Kitchener advised the team that he had authorised the use of taxis to travel home. The decision to provide taxi travel was a last minute decision made at the dinner because it went for longer than planned. Had Ms Muller attended the dinner she would also have been given the same benefit.

61. Ms Muller did not disagree with this version of events and it raises no inference that her sex was a reason for the initial decision to refuse to provide her with a cab-charge voucher.

62. This allegation lacks merit and it would not be fair or just for it to proceed.

Order

63. Leave is refused for the applicant’s complaint of sex discrimination to proceed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 02 December 2015