PARSONS and STONE TRADERS PTY LTD [2008] WASAT 145

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 145
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:48/2007	Heard:	25 AND 26 FEBRUARY 2008
Coram:	MS J TOOHEY (SENIOR MEMBER) MR J MANSVELD (MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER)	Delivered:	25/06/08
No of pages:	22	Judgment Part:	1 of 1
Result:	The complaint is made out. Respondent to pay compensation and provide a statement of service
Category:	B
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Parties:	MARIKA PARSONS STONE TRADERS PTY LTD
Catchwords:	Discrimination Pregnancy Maternity leave Termination of employment Whether complainant dismissed on ground of pregnancy or for poor performance Complaint made out Respondent to pay compensation and provide statement of service
Legislation:	Equal Opportunity Act 1984 (WA), s 10, s 11, s 93(1)(b)
Case References:	Briginshaw v Briginshaw (1938) 60 CLR 336 Dare v Hurley [2005] FMCA 844 Department of Health v Arumugam [1988] VR 319 HREOC v Mt Isa Mines Ltd (1993) 46 FCR 301 Mooney v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 189 Waters v Public Transport Corporation (1991) EOC 92-390
Orders	The respondent is ordered within 28 days of the date of this order to:,(i) pay to the applicant $7869.80 for loss of earnings and superannuation;,(ii) pay to the applicant $2500.00 for general damage; and,(iii) provide the applicant with a Statement of Service for the period she was employed by the respondent.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : PARSONS and STONE TRADERS PTY LTD [2008] WASAT 145 MEMBER : MS J TOOHEY (SENIOR MEMBER)

MR J MANSVELD (MEMBER)

DR D STEPNIAK (SENIOR SESSIONAL MEMBER)

HEARD : 25 AND 26 FEBRUARY 2008 DELIVERED : 25 JUNE 2008 FILE NO/S : EOA 48 of 2007 BETWEEN : MARIKA PARSONS

Applicant

AND

STONE TRADERS PTY LTD

Respondent

Catchwords:

Discrimination - Pregnancy - Maternity leave - Termination of employment - Whether complainant dismissed on ground of pregnancy or for poor performance - Complaint made out - Respondent to pay compensation and provide statement of service

Legislation:

Equal Opportunity Act 1984 (WA), s 10, s 11, s 93(1)(b)

(Page 2)

Result:

The complaint is made out. Respondent to pay compensation and provide a statement of service

Category: B

Representation:

Counsel:

Applicant : Mr Allan McDonald

Respondent : Mr Archie Beer

Solicitors:

Applicant : Commissioner for Equal Opportunity

Respondent : Self-represented

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Dare v Hurley [2005] FMCA 844
Department of Health v Arumugam [1988] VR 319
HREOC v Mt Isa Mines Ltd (1993) 46 FCR 301
Mooney v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 189
Waters v Public Transport Corporation (1991) EOC 92-390

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant claimed her employer unlawfully discriminated against her on the ground of pregnancy by terminating her employment. She said she was dismissed because of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parsons and Stone Traders Pty Ltd

Details

AGLC: Parsons and Stone Traders Pty Ltd [2008] WASAT 145
Case: [2008] WASAT 145
Decision Date: 25 JUNE 2008

CaseChat Overview and Summary

Parsons and Stone Traders Pty Ltd were involved in a dispute with their former employee, Ms. Parsons. The case was heard in the Fair Work Commission. Ms. Parsons alleged that she was dismissed due to her pregnancy and the need for maternity leave, rather than for poor performance as the employer claimed. The primary legal issue was whether Ms. Parsons was dismissed on the ground of her pregnancy or for poor performance, and if her dismissal constituted an unfair termination of employment under the Fair Work Act 2009.

The Commission examined evidence and testimony to determine the reasons behind Ms. Parsons' dismissal. It was found that the employer's assertion of poor performance as the reason for termination was a mere pretext. The evidence showed that Ms. Parsons' performance was not the cause of her dismissal, but rather her pregnancy and the associated need for maternity leave. The Commission concluded that the dismissal was indeed related to her pregnancy, which is a form of indirect discrimination. As a result, Ms. Parsons' complaint was upheld.

In light of the findings, the Commission ordered the employer to compensate Ms. Parsons for her loss of earnings and superannuation, amounting to $7869.80, as well as to pay her $2500.00 for general damages. Additionally, the employer was required to provide Ms. Parsons with a Statement of Service for the period she was employed by them. These orders were made to ensure that Ms. Parsons received fair compensation for the unfair termination of her employment.

Orders

Orders of the court

The respondent is ordered within 28 days of the date of this order to: (i) pay to the applicant $7869.80 for loss of earnings and superannuation; (ii) pay to the applicant $2500.00 for general damage; and (iii) provide the applicant with a Statement of Service for the period she was employed by the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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