Pop v Taylor
[2015] FCCA 1720
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POP v TAYLOR | [2015] FCCA 1720 |
| Catchwords: HUMAN RIGHTS – Discrimination law – discrimination in employment – disability discrimination – direct discrimination – application of principle in Jones v Dunkel – definition of disability – appropriate comparator – inherent requirements of position – less favourable treatment – accessorial liability – inherent requirements of position – reasonable adjustments – damages. |
| Legislation: Disability Discrimination Act 1992, ss.3, 4, 5, 6, 10, 15, 21A, 122 |
| Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92 Jones v Dunkel (1959) 101 CLR 295 Fox v Percy (2003) 214 CLR 118 Briginshaw v Briginshaw (1938) 60CLR 336 Penhall-Jones v New South Wales [2007] FCA 925 Railpro Service Pty Ltd v Flavel [2015] FCA 504 Waters v Public Transport Corporation (1991) 173 CLR 349 R v Birmingham City Council; Ex parte Equal Opportunities Commission (1989) 2 WLR 520 Fetherston v Peninsula Health [2004] FCA 485 Cooper v Human Rights and Equal Opportunities Commission and Anor (1999) 93 FCR 481 Elliott v Nanda (2001) FCR 240 Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207 X v Commonwealth of Australia & Anor (1999) 200 CLR 177 Cosma v Qantas Airways Limited [2002] FCA 640 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 Clarke v Catholic Education Office & Anor (2003) 202 ALR 340 O’Brien v Dunsdon (1965) 39 ALJR 78 Alexander v Home Office [1988] 1 WLR 968 Kraus v Menzie [2012] FCA 3 |
| Applicant: | ANCA POP |
| Respondent: | JONATHON WILLIAM TAYLOR |
| File Number: | ADG 342 of 2014 |
| Judgment of: | Judge Brown |
| Hearing dates: | 26 & 27 March 2015 |
| Date of Last Submission: | 27 March 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 26 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stewart |
| Solicitors for the Applicant: | Cowell Clarke |
| Counsel for the Respondent: | Mr Manuel |
| Solicitors for the Respondent: | Michael Brown |
ORDERS
The Court declares that the respondent unlawfully discriminated against the applicant contrary to section 15(2)(c) of Disability Discrimination Act 1992 (Cth) on 4 October 2013 by unlawfully dismissing her from employment.
It is ordered that the respondent pay general damages to the applicant in the sum of $5,000.00 together with special damages in the sum of $5,000.00 making a total of $10,000.00 on which interest of $1,000.00 is calculated.
The respondent pay the applicant’s costs pursuant to section 79(2) of the Federal Circuit Court Act 1999 (Cth) and rule 21.10 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 342 of 2014
| ANCA POP |
Applicant
And
| JONATHON WILLIAM TAYLOR |
Respondent
REASONS FOR JUDGMENT
Introduction
Anca Pop “the applicant” has qualifications in accountancy. On 21 February 2013, she commenced employment, as a bookkeeper, with a firm known as Fractal Portico Pty Ltd “the company”. Rex Leverington was a director of the company at material times.
On this date, Ms Pop entered into an employment agreement with the company. In the agreement, the company was described as the trustee for the Architrave Unit Trust of 222 Glen Osmond Road, Fullarton.
This address, at relevant times, was the business premises of a firm of accountants trading under the name of Chatfield Price Pty Ltd “Chatfield Price”. The sole director of Chatfield Price is Katerina Taylor. Ms Taylor is an accountant.
Although it is axiomatic, it needs to be emphasized nonetheless, that Fractal Portico Pty Ltd and Chatfield Price Pty Ltd are separate corporate entities and so different legal persons. In addition, it seems that the two entities had different directors. Mr Leverington in respect of Fractal Portico; Ms Taylor in respect of Chatfield Price.
It is also clear that the dichotomy between the two companies was advisedly maintained. In business jargon, Fractal Portico was intended to be a labour hire firm, which provided services for Chatfield Price but at arm’s length from it.
Ms Pop was employed to provide taxation and bookkeeping advice to clients of Chatfield Price, although her employer was technically Fractal Portico. In this role, she prepared business activity statements; tax returns; performed bank and GST reconciliations; processed payroll and superannuation; and undertook general data entry and bookkeeping.
Ms Pop’s contract of employment, with Fractal Portico Pty Ltd, was executed, on behalf of the company, by Jonathon William Taylor “the respondent”. The respondent is Ms Taylor’s husband. He is not an accountant.
Mr Taylor also has an employment agreement with the company. Under this agreement, he is employed to be the administration manager of Chatfield Price Accountants. It is his evidence that he did not provide any accounting services to its clients, but rather managed its office generally.
Ms Pop’s various tasks were sedentary in nature and were performed at a computer terminal, located at a workstation at 222 Glen Osmond Road, Fullarton. These premises were previously a domestic residence, which had a veranda. This veranda had been converted into an office. Ms Pop’s workstation was located in this office.
It is Ms Pop’s evidence that the office was narrow and its floor was on an incline. As a consequence, her workstation was narrow and she alleges that it did not adequately support her arms, whilst she performed her work at her computer.
Ms Pop has suffered from mild scoliosis or curvature of the spine since childhood. As a consequence, from time to time, she suffers minor pain in her back. It is Ms Pop’s evidence that, in May of 2013, she began to feel pain in her wrist and arm, which progressed to her left shoulder. She attributes this pain to her workstation.
Ms Pop was employed by the company on a full-time basis. The relevant employment agreement nominates the company as “the employer” and Ms Pop as “the bookkeeper”. Ms Pop was required to attend and provide services, as a bookkeeper, on week days, from 9:00am to 5:00pm. The contract was subject to a probationary period of three months and was expressed to conclude on 20 November 2013.
Ms Pop’s symptoms did not resolve and she began to experience difficulty in performing her work. As a consequence, in early September 2013, she consulted her general medical practitioner, Dr Simon James, who referred her to a physiotherapist, Max Kavanagh.
In Mr Kavanagh’s opinion, one of the factors causing Ms Pop’s shoulder pain was the configuration of her workstation. He considered that, if Ms Pop was forced to take time off work, due to her condition, it would be a WorkCover issue.
In these circumstances, he referred Ms Pop back to Dr James, with the following letter dated 1 October 2013:
“I’ve asked Ms Anca Pop to see you about her persisting Thoracic and L shoulder problems.
She presents with T4-9 joint tenderness L>R and has scoliosis contributing. AS well as some L should impingement.
We have started some local icing and mobilisation along with postural support taping but she is finding her workplace aggravating and not allowing it to settle.
I would appreciate your thoughts re management as it seems work related and opinion re medication/investigation at this stage.”
On 3 October 2013, Ms Pop returned to Dr James. He recommended that Ms Pop should reduce her work hours in order to reduce the level of inflammation in her shoulder. In these circumstances, he wrote a letter, addressed To whom it may concern, in the following terms, in respect of Ms Pop:
“Anca has a painful spine currently. She is seeing myself and a physiotherapist. It seems that sitting at her desk makes it worse and for the time being it is preventing her working. I would recommend she has reduced time at the desk and would say working mornings 9am-1pm from now until Friday the 11th and then using the afternoon to rest the back should accelerate her recovery. I will review her next week and see how she is going.”
It is Ms Pop’s evidence that she was interviewed for her position, at the company, by Ms Taylor, who allocated her work and supervised its performance. Ms Pop worked with one other accountant besides Ms Taylor at the company. There was also a receptionist, a sales person and a book keeper, as well as the administration officer (Mr Taylor).
On 4 October 2013, at around 8:30am in the morning, Ms Pop gave Dr James’ letter to Ms Taylor, as she (Ms Pop) considered her to be her supervisor. Later that day, Mr Taylor, purportedly in his capacity as office administrator, terminated Ms Pop’s employment summarily.
It is Mr Taylor’s evidence that the decision to terminate Ms Pop’s employment was made by Ms Taylor and he was merely the means by which that decision was communicated to Ms Pop. Accordingly, it is his position that he was not the direct author of any action which was adverse to Ms Pop’s interests. Merely he was the agent by which information of the action was delivered to Ms Pop.
Ms Pop was aggrieved at the termination of her employment, as she believed that it was both unfair and illegal. It is her evidence that she felt humiliated by the actions of Mr Taylor, particularly how he escorted her from the premises of Chatfield Price and what he said to her at the time, which she believes was sarcastic and hurtful to her.
Ms Pop does not accept that Mr Taylor was anything other than instrumental in the decision to terminate her employment. Even if he was not, Ms Pop contends that Mr Taylor must be regarded as having contributed or aided and abetted this decision.
On 25 October 2013, Ms Pop commenced proceedings against the company alleging that it had taken adverse action against her in contravention of relevant provisions of the Fair Work Act 2009. However, these proceedings were discontinued as a consequence of both the company and Chatfield Price Pty Ltd being placed into voluntary liquidation.
Ms Pop is suspicious as to why both companies are now defunct and contends that it can only be to frustrate her claim for compensation as a consequence of being unfairly and illegally treated in the course of her employment with the company.
It is further Ms Pop’s position that the only reason why her employment was terminated on 4 October 2013, as she perceives it, by Mr Taylor, was because of her shoulder injury. It is her case that this injury constitutes a disability within the terms of the Disability Discrimination Act 1992 (“the DD Act”).
Pursuant to section 15(2)(c) of the DD Act it is unlawful for an employer (or a person acting or purporting to act on behalf of an employer) to dismiss an employee because of his or her disability.
On 1 April 2014, Ms Pop complained of this conduct to the Australian Human Rights Commission (the AHRC). On 11 July 2014, a delegate of the President of the AHRC terminated Ms Pop’s complaint on the basis that there were no reasonable prospects of the matter being settled by conciliation, pursuant to the provisions of section 46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) “the AHRC Act”.
As a consequence of this decision, the applicant commenced proceedings, in this court, pursuant to section 46PO of the AHRC Act against Mr Taylor alleging that he had discriminated against her, on the basis of her disability, in contravention of the DD Act.
It is Mr Taylor’s position that Fractal Portico Pty Ltd and its related trust supplied employees to Chatfield Price Accountants of which Ms Taylor was the proprietor. In his response, filed on 25 September 2014, Mr Taylor asserts as follows:
“The Respondent is an employee acting as administration manager for the company, whose responsibilities involve lease management and seeking and servicing new clients. The Respondent has no responsibilities regarding and is not generally knowledgeable of the day to day accounting activities and delegation of duties within the company.
…
The Respondent was an employee in this matter, as was the Applicant. The Respondent had no discretion and was subject to the final determination of the company to terminate the Applicant’s employment. The Respondent was instructed by Ms Taylor to inform the Applicant of her termination of her employment contract. This outcome would have applied to any other employee regardless of their physical capacity to perform the work required.
…
The Respondent has no authority to independently terminate the employment of the Applicant and acted in his role as Administration Manager of the company and on the instructions of his employer Chatfield Price Pty Ltd.”[1]
[1] See response at paragraphs 3, 14 and 21
On this basis, Mr Taylor asserts that he has no legal responsibility for the actions of Fractal Portico Pty Ltd; Chatfield Price Pty Ltd; or his wife, Ms Katerina Taylor. Accordingly, he seeks the dismissal of the application against him. These reasons for judgment are directed towards determining the issue between the parties.
The legal principles applicable
The AHRC Act establishes the Australian Human Rights Commission, which is charged with enquiring into complaints of unlawful discrimination on the basis of sex, race, disability and age, pursuant to Commonwealth legislation, including the DD Act.
If the AHRC terminates a complaint of discrimination, the complainant concerned is entitled to bring proceedings in either this court or the Federal Court pursuant to section 46PO of the Act.
Pursuant to section 46PO(4), if the court is satisfied that any respondent, in proceedings before it, has committed unlawful discrimination, the court may make any order it thinks fit, including any of the following:
“(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.”
Ms Pop has commenced these proceedings pursuant to the provisions of section 46PO. In her application, she seeks the following orders:
1. A declaration that Mr Taylor has committed unlawful discrimination against her;
2. An order for compensation for loss of income, occasioned to her as a consequence of her termination, in an amount of $19,097.77;
3. Compensation for additional physiotherapy costs incurred by her as a consequence of the termination of her employment;
4. General damages for hurt, humiliation and distress;
5. An apology from Mr Taylor;
6. Interest;
7. Costs.
The DD Act makes it unlawful to discriminate, on the grounds of disability, in many areas of public life. In particular, section 15(2) of the DD Act renders it unlawful for an employer or a person acting on behalf of an employer to discriminate against an employee on the grounds of the employee’s disability in respect of the following areas of employment:
“(a)in the terms or conditions of employment that the employer affords the employee; or
(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
(d) by subjecting the employee to any other detriment.”
The objects of the DD Act are set out in section 3. They include the elimination, as far as possible, of discrimination, on the grounds of disability, in many areas of human endeavour, including work; and to ensure, as far as practicable, that disabled person has the same rights to equality before the law as do other members of the community.
The concept of disability is defined by section 4 of the DD Act. It includes the following:
“(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
…
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
…
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future
(k) is imputed to a person.”
It is Ms Pop’s case that the inflammation and joint tenderness occurring in her left shoulder and thoracic spine constitutes a disability for the purpose of the Act. Given the statutory definition of disability, it is further Ms Pop’s case that it is immaterial that at least a component of her condition is likely to have been transitory and amenable to treatment.
In this context, on 9 February 2015, those advising Ms Pop filed a Notice to Admit Facts, pursuant to the provisions of Rule 15.31 of the Federal Circuit Court Rules 2001, in the following terms:
“Take notice that you are required by the above named to admit for the purpose of these proceedings only –
1. As at 4 October 2013, the Applicant had certain physical impairments or malfunctions, being an injury to her left shoulder and scoliosis, both of which constituted a disability within the meaning of the Disability Discrimination Act 1992.”
This notice was not formally disputed. Annexed to the notice was a bundle of Ms Pop’s medical records arising from her various attendances with Dr James and Mr Kavanagh. These records are not extensive. Mr Manuel, on behalf of his client, contends that the records lack specificity and amount to the broad assertion that the applicant had an injury to her left shoulder.
Employment is defined in section 4 of the DD Act. It includes “work under a contract for services”; and both “part-time and temporary employment”. Again there is no controversy in the current case, that Ms Pop was employed for the purposes of the DD Act.
“Discriminate” is also defined in section 4 of the DD Act. It has the meaning given by sections 5 and 6 which deal with the concepts of direct discrimination and indirect discrimination respectively.
It is Ms Pop’s case that she has been the object of direct discrimination, by Mr Taylor against her, because of her disability, in contravention of section 5 of the DD Act.
The objects of the DD Act include the elimination of discrimination, as far as possible, against persons on the grounds of disability in the area of work (inter alia) and to ensure, as far as is practicable, that persons with disabilities have the same rights to equality before the law, as do other members of the community [DD Act section 3].
Accordingly, the basis of the definition of direct discrimination rests on a notional comparison between the way in which a person with a disability has been treated (the “aggrieved person”) and the way in which a person “without the disability” would have been treated in “in circumstances that are the same or not materially different.” Specifically, section 5 of the DD Act provides as follows:
1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.”
The leading authority, in respect of how a court such as this one, is to formulate a comparator, “without the disability” to weigh against the treatment accorded to the person bringing a complaint of direct discrimination, in the same circumstances, pursuant to the provisions of section 5 of the DDA is Purvis v New South Wales (Department of Education & Training).[2]
[2] See Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92
The aggrieved person in Purvis was a secondary school student with brain damage. His disability manifested itself in violent and disruptive behaviour towards teachers and other students at the school which he attended. Ultimately his behaviour, stemming from his disability, resulted in him being excluded from the high school, operated by the New South Wales Department of Education, which he attended.
The question for the High Court in Purvis was what attributes should be ascribed to the required comparator for the purposes of determining whether direct discrimination had occurred. Was the comparator a person without the disability simpliciter or a person without the disability but who nonetheless was deemed to have behaved in a similar violent and disruptive fashion to the complainant?
The majority of the High Court held that it was necessary to compare the treatment of the student with the disability with a student who exhibited violent behaviour but did not have the disability. Gleeson CJ stated as follows:
“The circumstance that gave rise to the first respondent's treatment, by way of suspension and expulsion, of the pupil, was his propensity to engage in serious acts of violence towards other pupils and members of the staff. In his case, that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder. What, for him, was disturbed behaviour, might be, for another pupil, bad behaviour. Another pupil "without the disability" would be another pupil without disturbed behaviour resulting from a disorder; not another pupil who did not misbehave. The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled. The fallacy in the appellant's argument lies in the contention that, because the pupil's violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conduct persisted, expelled, in less time than the pupil in this case.”[3]
[3] Ibid at 100-101
The comparison required by section 5 of the DDA is not a purely formal one between a person with the disability and one without it. Section 5 requires a comparison between a person with the disability and one without it but the comparator must be taken to display the same behaviour and conduct as that exhibited by the disabled person.
Individuals, including employers, may take actions which have implications for an employee for a variety of reasons. Some of these reasons may be legitimate other may not. Pursuant to section 10 of the DD Act, if an act is done for two or more reasons, of which one such reason relates to a person’s disability, whether or not that reason is the substantial or dominant reason for the doing of the act, the act is taken as having been done for a reason relating to the disability in question.
The DD Act provides a number of exceptions or defences to its application. In particular, pursuant to section 21A, it is not unlawful to discriminate against a person, in employment, if that person is unable to carry out the inherent requirements of a particular job. This exception is subject to a significant proviso namely it must be established that the disabled person concerned is unable to perform the job in question even if reasonable adjustments are made for him or her.
In addition the issue of whether a person is able to carry out the job in question is subject to the consideration of a number of factors which are specified in section 21(2) namely:
“21A Exception—inherent requirements
Inherent requirements
…
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person’s past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator—the aggrieved person’s performance in working for the discriminator;
(c) any other factor that it is reasonable to take into account.”
It is the contention of Mr Manuel that one of the inherent requirements of Ms Pop’s position was that she was available to work on a full time basis. Ms Pop was not in a position to fulfil such an obligation. In such circumstances, Chatfield Price was entitled to inform Fractal Portico that it no-longer required Ms Pop’s services.
Ms Stewart rejects such a contention and submits that her client’s condition could have easily been accommodated by allowing Ms Pop to work on a part time basis for a finite period of time.
Mr Taylor is the only respondent in these proceedings. He was not Ms Pop’s employer. Rather, like her, he was employed by Fractal Portico Pty Ltd. That company no longer exists as a legal person, as it entered voluntary liquidation shortly after Ms Pop commenced proceedings against it pursuant to the provisions of the Fair Work Act.
The same situation prevails in respect of Chatfield Price Pty Ltd, of which Ms Taylor is the sole director. Although employed by the company (Fractal Portico), Ms Pop provided her services to Chatfield Price. This company too was placed in voluntary liquidation at around the same time as Fractal Portico Pty Ltd.
Mr Manuel, counsel for Mr Taylor is candid about the rationale for the arrangement between the two now defunct companies. In his closing submissions to the court he said as follows:
“Mr Taylor was never the employer; that’s clear. He was not involved in the day-to-day supervision of Ms Pop. He was involved in administrative matters and he had the misfortune of being the person who was required by Chatfield Price to deliver the news that Ms Pop was to be terminated. Now, can I say, the size of the firm is important and the reason for that is this: that this is a normal labour hire relationship, that is, the person who is hiring the labour from another company invariably has the right to say, “No. I don’t want them any more,” or “I don’t like this person.” To be absolutely blunt about it, that’s why you use that structure: to avoid unfair dismissals – largely, to avoid unlawful terminations. That’s the whole purpose of it.
So it’s not out of left field to believe that Chatfield Price, being a fairly small firm, wanting a full-time employee, said to Mr Taylor, “I’m sorry. We’re not going to have – have Ms Pop.” Now, if this was an unfair dismissal, that might lead to a very different outcome, but it’s not. It’s an allegation against Mr Taylor as an individual that he has discriminated on the grounds of disability. He has done no such thing.[4]
[4] See transcript at page 70
The import of section 15 of the DD Act is clear. It renders it illegal for employers to engage in discriminatory conduct, against their employees, on the basis of disability. Provisions within the DD Act extend liability for acts of unlawful discrimination beyond those persons who have a primary statutory obligation (such as employers) not to engage in discriminatory conduct to other who are ancillary to them.
In particular, section 122 of the DD Act, which is headed Liability of persons involved in unlawful acts reads as follows:
“A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2, 2A or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.”
Section 15 is contained within Division 1 of Part 2 of the Act.
This is one of the central legal issues in the case, to which I will return in more detail in due course. Ms Stewart, counsel for Ms Pop, contends that Mr Taylor caused or permitted another person, namely Fractal Portico to do an act which was unlawful for the purposes of the DD Act, namely terminate Ms Pop’s employment because of her disability.
Section 122 creates what is often characterised as contributory liability for an illegal act of discrimination. A person who contributes to an act of unlawful discrimination becomes jointly liable for the conduct of a principal wrongdoer. Or to put it another way, the unlawful conduct of the principal is deemed to be the act of the contributor as well as the principal.[5]
[5] See Rees, Rice & Allen Australian Anti-Discrimination Law, Federation Press, Leichardt NSW, 2014 at 12.8.32
Another way of characterising such conduct is under the rubric of aiding and abetting or accessorial liability. It is Mr Manuel’s submission that, in the absence of a principal party (the employer), Mr Taylor cannot be such an accessory. Nor, as he is patently not Ms Pop’s employer, can he be regarded as the principal actor in any discriminatory action against her.
Essentially, Mr Manuel submits Ms Pop is unable to establish that Mr Taylor caused another person to do anything detrimental to her interests. It is also Mr Taylor’s case that he personally did not commission or perform any action, which was discriminatory of Ms Pop. On his behalf, Mr Manuel submits that Ms Pop has failed to establish any causation between any action on the part of Mr Taylor and the alleged discrimination against Ms Pop.
Mr Manuel argues that the alleged discriminatory conduct of which Ms Pop asserts she was the victim – namely the termination of her employment – must be causally linked to a decision made by some person or other.
Mr Manuel submits that Ms Pop is unable to establish that Mr Taylor was such a decision maker. Rather he was the mere messenger of the decision, which was made by another person. In this context, it matters not that he was privy to any discussions with Ms Taylor, his wife or indeed Mr Leverington, concerning the termination of Ms Pop’s employment.
Ms Taylor was not a party to these proceedings, nor did she give evidence in them. Ms Stewart contends that it was open to Mr Taylor to call Ms Taylor and indeed Mr Leverington to give evidence in respect of how the decision to terminate Ms Pop’s employment was made by them and so rebut any implication that Mr Taylor, as the officer administrator, played a part in it.
Ms Stewart submits that Mr Taylor has provided no explanation as to why he chose neither to call his wife nor Mr Leverington, both of whom were in position to provide evidence supportive of his (Mr Taylor’s) contention that he was merely the messenger of the decision to terminate Ms Pop’s employment but played no part in making it.
In this regard Ms Stewart relies on the principle in Jones v Dunkel. [6] The principle is that an unexplained failure by a party to call a witness may, in appropriate circumstances, base an inference that the witness’ evidence would not have assisted the party’s case.
[6] Jones v Dunkel (1959) 101 CLR 295
Ms Pop does not accept that Mr Taylor was not instrumental in the decision to terminate her employment and so was anything other than a direct discriminator against her. It is her contention, in the absence of Ms Taylor, it can be inferred that her evidence would not have supported Mr Taylor’s assertion that he was a mere messenger of the decision to terminate her employment.
On the day of her dismissal, Ms Pop recorded a conversation, which took place between her and Ms Taylor. In that conversation, Ms Taylor allegedly said to Ms Pop that she should “go and talk to him [Mr Taylor about the issue] … that’s his decision”. In the context of this conversation, Ms Stewart contends that the absence of evidence from Ms Taylor is crucial. Mr Manuel does not agree.
The Evidence
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.[7] I have tried to reach my conclusions as to credibility and reliability, on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[8]
[7] See Evidence Act (1995) (Cth) at section 140
[8] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow & Kirby JJ
In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
These criteria reflect the well-known comments of Dixon J, in the case of Briginshaw v Briginshaw[9] as follows:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[9] Briginshaw v Briginshaw (1938) 60CLR 336 at 362
Mr Manuel characterises the allegations made against his client as being serious in nature. As such, it is his contention that there is a requirement for the court to closely examine all the evidence available to it before it is able to conclude that any unlawful discrimination has occurred in respect of Ms Pop. This is particularly so in cases involving circumstantial evidence.
In this case, important actors involved in the circumstances leading up to Ms Pop’s termination have not been available to give evidence to the court. The most important of these is Ms Taylor. In addition, the evidence concerning the deregulation of both Fractal Portico and Chatfield Price is uncertain. I must be careful not to convert conjecture or suspicion into evidence. Rather I must look at the overall quality of all the evidence available to me. The task of applying the applicable standard of proof is not a mere mechanical task.
In this regard, I bear in mind what was said by Buchanan J in Penhall-Jones v New South Wales[10] as follows:
“…there is a need to distinguish between identification of the appropriate standard of proof (on the balance of probabilities in a civil case) and the quality of evidence which will satisfy the standard in a particular case. That is a matter which may vary according to the gravity of the accusations or contentions to be evaluated. Although the balance of probabilities remains the civil standard of proof, what may be required to satisfy that standard of proof in a given case, and satisfy it to the ‘reasonable satisfaction’ of the court, is not fixed.”
[10] Penhall-Jones v New South Wales [2007] FCA 925 at [118]
Ms Pop bears the onus of establishing that she has suffered discrimination, by Mr Taylor, pursuant to the provisions of the DD Act. However the onus is on Mr Taylor to establish any exception to the application of the Act arising under section 21A.
Ms Pop appeared to me to be an articulate and intelligent person. She was clearly aggrieved, during her evidence, at how she perceives she had been unfairly treated during her employment with Fractal Portico. However, in my view, this does not have any serious implications for the objectivity and credibility of her evidence overall. I consider her to be a truthful person.
Mr Taylor appeared to me to be comfortable and assured, whilst giving his evidence. He was at pains to minimise his interactions with both Ms Pop and his wife’s accountancy practice. For obvious reasons, Mr Taylor has no incentive to assist the applicant.
However, in my view, much of Mr Taylor’s evidence, although ostensibly confident, was marked by a significant level of obfuscation. Regrettably, it seems to me that much of his evidence surrounding the operation of both Fractal Portico and Chatfield Price indicates a level of meanness and indeed subterfuge.
By way of example, Mr Taylor has asserted, in his evidence, that Ms Pop’s work was unsatisfactory and it was of great concern to his wife and Mr Leverington that she (Ms Pop) had been dishonest about her qualifications in her resume and consideration had been given to terminating her employment prior to 4 October. However this decision had not been taken because of the level of accounting work coming in.
For the reasons which follow, I reject this evidence. In addition there is a degree of contradiction between the assertion that Ms Pop’s work was substandard but no action was taken in respect of it because the firm was so busy at the time. I am concerned that Mr Taylor has at worst attempted to fabricate a reason to explain Ms Pop’s termination or at best is attempting to rationalise his behaviour on 4 October.
a)The circumstances surrounding Ms Pop’s employment by Fractal Portico
Ms Pop is Romanian by background and has qualifications in accounting and banking from a University in Romania. She has been resident in Australia since early 2012. Her partner is an Australian citizen.
In January of 2012, Ms Pop began to study for a diploma in banking at TAFE SA. Later, she transferred to a diploma of accounting at the same institution. She was engaged in her studies for the whole of 2012. At the same time, Ms Pop obtained a position, as an accounts clerk, at a private health insurer in Adelaide.
In February of 2013, Ms Pop placed an advertisement, on Gumtree, seeking employment as an entry level bookkeeper/accountant. Gumtree is an internet classified advertisements site, designed, amongst other things, to put job seekers in touch with those who have positions vacant.
On 12 February 2013, Ms Pop received a message, via Gumtree, under the heading someone has replied to your add! The message was from Mr Taylor and read as follows: “Hi Anca … interested to see your resume pse.”
In the message, under Mr Taylor’s name is written Chatfield Price Accountants, Fullarton. It would appear to me to be the case that neither Mr Taylor nor Fractal Portico or indeed anyone otherwise associated with Chatfield Price took any great pains to explain to Ms Pop for whom she would be formally working. More particularly, the possible (and indeed intended) legal implication of these arrangements was not discussed with Ms Pop.
As requested, Ms Pop forwarded her resume to Mr Taylor. Given the manner in which Mr Taylor had signed off his email, in my view, it would not have been unreasonable for Ms Pop to have assumed that she was applying for a position at a firm of accountants, known as Chatfield Price and that Mr Taylor was associated with this company.
Ms Pop’s resume is a concise document of some three pages. It discloses, under the heading education, that she attended TAFE SA for the period January 2012 to December 2012 to pursue a diploma of accounting. It was suggested to Ms Pop that she was misleading, in this document, about the extent of her Australian qualifications. In this context, it is submitted that this situation has implications for Ms Pop’s overall credibility.
I reject that contention. Rather, I accept Ms Pop’s evidence that she completed all of her subjects, at TAFE, as required and received good marks for them. However, there had been a delay in the formal conferral of her diploma because of a miscommunication between lecturers, as to how she was to be credited for prior learning, arising from her Romanian tertiary qualifications.
In my view, there is no support for the contention that Ms Pop was disingenuous about her accountancy qualification and this provided some grounds for her subsequent dismissal. In my view, the issue is a red herring and smacks of some level of self-generated justification, on Mr Taylor’s part, for Ms Pop’s termination, following the institution of these proceeding.
In particular, Mr Taylor asserts that the “fact that it appeared the applicant had lied to gain employment was a significant concern.”[11] What is interested about this comment is that Mr Taylor does say to whom it was a concern – to him; to Ms Taylor; to Mr Leverington? Nor does Mr Taylor depose what was done about these amorphous concerns vis-à-vis Ms Pop. In these circumstances, it beggars belief that her termination was for any other reason than the tender of the Dr James’ letter on 4 October.
[11] See Mr Taylor’s affidavit at paragraph 20
Following the receipt of Ms Pop’s resume, Mr Taylor telephoned her to arrange an interview between Ms Pop and Ms Taylor. Ms Pop was given to understand that she would be working for Ms Taylor and that she (Ms Taylor) was “the accountant”.
It is Ms Pop’s evidence that she disclosed to Ms Taylor the fact that she was having some difficulties, with TAFE, regarding the formal conferral of her diploma but she considered that she (Ms Pop) had satisfied the technical requirements to be granted the diploma.
Ms Taylor has not been called to refute this aspect of the evidence nor Ms Pop’s further contention that Ms Taylor herself raised no concerns about the issue, either in the job interview or afterwards.
Ms Pop was offered a position following her meeting with Ms Taylor. This offer was formalised by her executing an employment agreement, on 21 February 2013, with Fractal Portico. The contract was for a fixed term, concluding on 20 November 2013.
It is Ms Pop’s evidence, which I accept, that this fixed term had not been previously raised with her, but as she was anxious to obtain the position, she executed the contract without demur. The contract was executed, on behalf of Fractal Portico, by Mr Taylor.
b) Fractal Portico Pty Ltd
Mr Taylor was employed as the administration manager of Fractal Portico Pty Ltd. This company was a trustee for the Architrave Trust, which was a service trust providing employees to Chatfield Price Accountants. Mr Taylor was not a director or shareholder in Fractal Portico. He had no role in providing accounting services to any clients of Chatfield Price.
It is clear, I think, from how he responded to Ms Pop’s advertisement on Gumtree that he had a role in employing persons for Chatfield Price, in accounting positions, and held himself out as being a part of Chatfield Price for this purpose.
In his evidence, Mr Taylor indicated that the majority of his work was done for a business known as Agrispec, with Fractal Portico taking up a minority of his time. It is Mr Taylor’s evidence, that he had no responsibilities in respect of accountancy matters, for Chatfield Price, as he was not an accountant.
He deposed however that all employees, presumably involved in providing accountancy services under the aegis of Chatfield Price, would send him an email each working day to advise when they started and finished work.[12] In his oral evidence, Mr Taylor said as follows of his responsibilities:
“… I help the business with its administration. When you say administration, I order paper, I organise contracts for leases. If somebody is employed, I will present them with the employment contract and do that sort of thing. I will keep on the eye of the level of coffee and sugar in the kitchen. I make sure there is toilet paper in the toilets. I am not an accountant, I can’t do accounting work and I have no interest in doing it.”[13]
[12] See affidavit of Jonathon Taylor filed 18 March 2015 at paragraph 4
[13] See transcript at page 48
Mr Taylor deposed that he would go weeks at a time, at the 222 Glen Osmond Road premises, without seeing Ms Pop, other than when he saw her, in the carpark, smoking. Ms Pop herself confirmed that she reported to Ms Taylor in respect of the work she did, on a daily basis. It was she, not Mr Taylor, who provided her with work to do.
Ms Pop’s evidence, which I accept, is that she never met a person by the name of Rex Leverington, whilst she worked as a bookkeeper, nor did she ever hear his name mentioned at the premises of Chatfield Price.
Ms Pop accepts that Mr Taylor did not provide her with any accounting work to do. All her work came from Ms Taylor, to whom she reported on a daily basis. Mr Taylor had a separate office, at the back of the house, where he engaged in the majority of his daily tasks. Another part of the house was also occupied by a couple who engaged in a business separate to Ms Taylor’s accountancy practice.
c) Ms Pop’s work performance
It is Ms Pop’s evidence that no complaint was made either by Ms Taylor or Mr Taylor about the quality of her work, prior to her termination in October of 2013. To the contrary, in September of 2013, Ms Pop deposes that Ms Taylor indicated that she was very happy about the job Ms Pop was doing.
In this context, she was awarded a pay rise from $16.97 per hour to $19.00 per hour. Each of Ms Pop’s payslips indicated that her employer was Fractal Portico Pty Ltd and she was employed as a bookkeeper.
Ms Pop, in both her evidence in chief and under cross examination, has deposed that Ms Taylor indicated her approval for her work informally in the kitchen at 222 Glen Osmond Road and said to her word to the effect of “you’re doing a great job. I’m going to ask Jon if you can get a raise.”
The implication of this evidence being that Mr Taylor was something more than a factotum or general dogsbody at Chatfield Price but rather had something of a proprietorial role or significant managerial function at the organisation. This conclusion seems to me to be more likely than not to be an accurate one.
Mr Taylor deposes that he had been advised by Ms Taylor that Ms Pop’s work performance was substandard, as was the fact that it was considered Ms Pop had lied about her qualifications to obtain her position.
This evidence is highly dubious, in my view. It is tainted by hearsay. No details are provided as to why Ms Pop’s work was substandard. Ms Taylor has not been called as a witness in the proceedings. Again, to my mind, these statements smack of being generated to justify Mr Taylor’s actions.
Another example, Ms Pop provides, where she asserts Ms Taylor deferred to Mr Taylor, in a work context arose when the Taylors’ daughter was visiting 222 Glen Osmond Road and choked on a pill, to the consternation of her parents who observed the incident. Ms Pop attended to the lady concerned.
Ms Pop was due to take holidays from the following day and had finished all the tasks allocated to her. Of the incident, Ms Pop deposed as follows:
“…it was a bit of a drama because everyone got scared, and then Katrina looked at him and asked him if I can go home. To me, it felt like she was happy because I helped them and she wanted to send me home because there was no more work and it the day before I was flying home. She looked at Jon and asked him if I could go home and sort of gave him explanation that there was no more work for me to do and that I have completed everything and she has nothing else to give me, and then Jon said ‘Yes’… So ultimately it was his decision all the time.” [14]
[14] See transcript at page 16
The evidence available to me is unequivocal that Mr Taylor and Ms Taylor were married to one another and the relationship between them was ongoing, at relevant times. They worked at the same business premises and Mr Taylor was employed by a corporate entity designed to provide services to the company which Ms Taylor operated.
I know little else about their relationship, particularly which spouse deferred to whom and in which situations. However, in all these circumstances, it seems to me to be against the weight of the evidence that Mr Taylor was a mere cipher in the affairs and administration of both Fractal Portico Pty Ltd and Chatfield Price Pty Ltd.
d) Ms Pop’s injury
Ms Pop’s evidence is that she began to feel pain, in her wrist and arm, from May 2013 onwards. She attributes this pain to the confined configuration of her workstation. However, she hoped that the pain would dissipate and she did not seek treatment. Nor did she raise the issue with anyone at her place of employment.
It is Mr Taylor’s evidence that he first became aware of some form of injury, which Ms Pop had sustained to her shoulder, in May of 2013, through general office talk. However, he concedes that Ms Pop did not discuss the issue directly with him, although he contends that the office gossip was that the injury had occurred, whilst Ms Pop was renovating her home. Ms Pop, in her evidence, specifically denied that this was the case. In my view, nothing turns on this issue.
Ms Pop consulted her doctor, Dr James, on 2 September 2013, in respect of a variety of complaints, including occasional left wrist and shoulder pain. In respect of her shoulder and wrist pain, she was advised to see a physiotherapist, if it returned and her doctor, if it worsened.
In this context, on 26 September 2013, Ms Pop consulted Mr Kavanagh. Mr Kavanagh recommended that Ms Pop perform a number of exercises and ice her shoulder. Mr Kavanagh also considered that Ms Pop’s workstation, along with her scoliosis, were likely to be contributing to the pain in her should and wrist. On 30 September, Ms Pop raised with Mr Taylor her concerns that her desk, at 222 Glen Osmond Road, was a factor contributing to the pain in her shoulder.
Mr Taylor agrees that he became aware, in September of 2013, that Ms Pop had begun to visit a physiotherapist. Mr Taylor has deposed that, in order to foster good employer/employee relations, he agreed, on behalf of Fractal Portico, to authorise Ms Pop to attend medical appointments, during working hours, without any loss of wages.
It is Ms Pop’s evidence that she specifically raised the issue of the desk, with Mr Taylor, who authorised her to sit an unoccupied desk, for at least one day. However, this practice could not be extended because the desk was required for other purposes. Later, Mr Taylor deposes, he provided advice to Ms Pop as to how she should sit at her desk.
From all this evidence, it appears clear to me that Mr Taylor was aware that Ms Pop had medical issues arising from her shoulder and that he played a role in managing these issues in the workplace.
Ms Pop returned to Mr Kavanagh on 1 October 2013. It is her evidence that her condition had not improved but was getting worse. As previously indicated, in these circumstances Mr Kavanagh referred Ms Pop back to Dr James as Ms Pop had reported to him (Mr Kavanagh) that her workplace was aggravating her condition.
In her oral evidence, Ms Pop deposed that she was taking painkillers at this stage and it had become “physically almost impossible for me to work at that stage and put up with the pain because my shoulder was so inflamed.”
It was in this context, on 3 October 2013 that Dr James wrote the letter, which was instrumental in Ms Pop’s employment, with Fractal Portico, being terminated.
e) The termination of Ms Pop’s employment
Dr James’ letter is dated 3 October 2013. Ms Pop delivered it to Ms Taylor at about 8:30am on 4 October 2013. It is Ms Pop evidence, which I accept, that she gave the letter to Ms Taylor because she was the first person there on the day in question, not because she was her specific supervisor.
In answer to a question that she gave the letter to Ms Taylor because she was her supervisor, Ms Pop replied as follows:
“Yes and no. Because it was such a small company, we were discussing all sorts of issues on a daily basis. There was my shoulder…what I cooked last night, why they were renting the new house and that sort of thing. So I was talking to everyone about my issues. I went to her because normally she was the first person in the office. Me and her and Melissa were the first person in the office. Jon would always come later.”[15]
[15] Ibid at page 20
This statement rings true to me. The workplace was small and intimate. There was no rigid hierarchy of management. As such, the exact roles of Mr Taylor and Ms Taylor were somewhat inchoate. The person referred to as Melissa, is Melissa Stephens, who was the other bookkeeper employed at the time.
In this context, Ms Pop said as follows, of her relationship with the Taylors:
“My dealings were, in general, with both of them. With her more often because she was my direct supervisor talking about day-to-day work and it was – at times it was particularly difficult to talk to Jon. And always – everyone was just talking to Katarina first and then she was making suggestions and going from there on either me asking Jon directly or her asking Jon directly.”[16]
[16] Ibid at page 25
Accordingly, in my view, nothing of significance turns on the fact that Ms Pop provided Dr James’ letter to Ms Taylor rather than Mr Taylor. Ms Pop concedes that Ms Taylor was the person to whom she went on a day to day basis in respect of her accounting work, but she had also gone to Mr Taylor in respect of issues arising from her workstation configuration.
Between around 9.30 am and 10.00 am, a handyman, Mr Jansens, who also worked in sales with Mr Taylor, arrived at Ms Pop’s desk to examine whether he would be able to modify it to accommodate Ms Pop’s needs. Mr Jansens was not present when Ms Pop’s employment was terminated.
Ms Pop’s evidence is that around 10.30 am Mr Taylor arrived in her office holding the letter from Dr James. At this stage, he said words to the effect of:
“starting from now on we have made your position redundant and you can leave at 1 pm and if you don’t like it you can get a lawyer.”[17]
Ms Pop deposes that she was shocked at the abruptness of her termination and the lack of discussion about it. It is her evidence that Mr Taylor was angry when he said what he said to her.
[17] See Ms Pop’s affidavit at paragraph 40
Mr Taylor does not dispute the mechanics of this conversation but presents a more anodyne account of it as follows:
“On or about 4th of October I was informed by Ms Katerina Taylor, the managing director of Chatfield Price Accountants, that Anca had provided a letter from her Doctor stating she could only work part time. Anca gave the letter to Katerina as she (Katerina) was her direct supervisor. The management of Fractal Portico Pty Ltd being its Director Mr Rex Leverington and Katerina in her capacity as managing director of Chatfield Price had discussions with me advising Chatfield Price could not accommodate and did not require a part time employee. This was a decision solely for them as they controlled their staffing requirements. As a result of these discussions I was instructed to terminate the employment of Anca due to her inability to work full time. I was instructed to terminate her employment on the basis that her position was redundant. She was not replaced. Ultimately Chatfield Price Pty Ltd went into liquidation in or about January 2014.”[18]
[18] See Mr Taylor’s affidavit at paragraph 10
In my view, a number of things arise from this statement. Firstly, Dr James did not state that Ms Pop could only work part time, in the sense that this was to be for an indefinite period. The letter is perhaps not as well expressed as it could be but the comment regarding Ms Pop’s desk, made by Dr James, is that it seems to make her condition worse and for the time being it prevented her from working.
Accordingly, in my view, it is inaccurate to say that Ms Pop had provided a letter, which stated that she could only work part time. Rather Dr James’ letter stated that Ms Pop should work reduced hours until he (Dr James) reviewed her in about a week’s time. Dr James also invited Ms Pop’s employer to contact him, if further information was required.
In my view, the letter in question detailed a commonplace office or employment situation. A person was temporarily incapacitated and needed to take it easy for a specified period of time, on the advice of her doctor. Over this period, the writer of the letter considered that with rest to her back, Ms Pop’s recovery would be accelerated.
The letter was neither a request nor a demand for part time work, on an indefinite basis, for Ms Pop. Rather it made a recommendation Ms Pop be granted reduced time at her desk in order to aid her recovery. In these circumstances, it seems to me that there was an extreme over reaction, to the letter, from Ms Pop’s employers.
Accordingly, it seems likely to me that the terse conversation between Mr Taylor and Ms Pop, in which Ms Pop’s employment was terminated, was posited on a fundamental misunderstanding of the letter. In these circumstances, that the conversation was a heated and unpleasant one seems, on balance, more certain than not.
Secondly, from Ms Pop’s point of view, I accept that she had no knowledge of the purported role of Mr Leverington in the management of either Fractal Portico or Chatfield Price. I accept her evidence that she had never met or heard of Mr Leverington, during the period she attend at the premises situated at 222 Glen Osmond Road to pursue her employment. From her perspective, her management was provided by both Mr Taylor and Ms Taylor.
By necessary inference, the letter from Dr James passed from Ms Pop to Mr Taylor, via the agency of Ms Taylor. That Mr Taylor and Ms Taylor had some form of conversation about the contents of the letter seems, on balance, likely. Whether that conversation involved Mr Leverington and in what degree is more uncertain.
The import of Mr Taylor’s evidence is that he was largely peripheral to a discussion which occurred between his wife and Mr Leverington about Dr James’ letter. The impression he gives is that there was a formal managerial discussion, to which he was not privy, given his subordinate role.
This seems to me to be inherently unlikely, given the relationship between Ms Taylor and him and the fact that, from time to time, she had deferred to his judgement in respect of matters to do with the management of the accountancy practice. It seems to me to be improbable that Mr Taylor would have been angry, if he was merely the messenger of the news of Ms Pop’s termination to her.
If this had been so, he would have been at pains to mollify Ms Pop and distance himself from the unpalatable information, which he alleges he had been directed, by others, to deliver. It seems to me to be more likely that he was instrumental in making the decision about Ms Pop’s termination and for that reason determined to deliver it in the aggressive manner in which he did, so that she would not be tempted to try and challenge his authority, in any way, or remonstrate with him in an attempt to change his mind.
Mr Taylor’s affidavit evidence has been carefully crafted to distance his actions from those of Fractal Portico; his wife; Mr Leverington; and Chatfield Price. In my view, his oral evidence, in respect of this issue of the case was not so well crafted. Rather it was marked by some obfuscation and a level of subsequent self-justification.[19]
[19] See transcript at pages 53 -54
I did not believe his evidence in this respect. Certainly, I do not accept his evidence that he played no role in the decision, when his own evidence indicates that he read Dr James’ letter and considered it, although apparently he also misunderstood its literal import.
In my view, there is a tension between his evidence that he had been at pains to be a considerate administration manager, for Ms Pop, whilst she had difficulties with her shoulder by, amongst other things, suggesting she use a sling; could attend her doctor and physiotherapist during business hours; and his offer to change the configuration of her desk;[20] and his oral evidence that her work performance had not been up to scratch and therefore her termination was justified because “we can’t afford to have somebody working part-time in the office because of the workload we had got.”[21] Although it may be an inadvertent slip of the tongue, it is telling that Mr Taylor used the first person plural in reference to the justification for Ms Pop’s termination.
[20] See Mr Taylor’s affidavit at paragraph 11
[21] See transcript at page 54
In his affidavit evidence, Mr Taylor is at pains to depict a calm and rational discussion, on his part, regarding Ms Pop’s termination. He deposes as follows:
“When informing Anca that decision (sic) had been made to terminate her employment I pointed out to her the difficulties in her only being able to work part time, the concerns about the standard of her work and the issues surrounding her lack of qualifications and the her misrepresentation of the same and these factors made everyone’s job in the office more difficult. It was pointed out that as an employer we could not ignore the letter as any worsening of the injury would become a liability for to the employer. There was no Workcover, sickness or other claim. I said, ‘we are in a position where we cannot do much else than make your position redundant. I will have to ask you to leave the premises with the next half hour.’”[22]
[22] See Mr Taylor’s affidavit at paragraph 30
In this respect, I prefer Ms Pop’s evidence that the conversation in question was abrupt and aggressive. This follows from the concession that Ms Pop was given half an hour to leave the premises. I also reject the contention that Mr Taylor raised any concerns about Ms Pop’s work or qualifications.
It is also again, in my view, telling that Mr Taylor adopts the first person plural “we” in respect of the conveying of the information concerning her redundancy to Ms Pop. By “we” does Mr Taylor mean he and Fractal Portico; he and Ms Taylor; he and Mr Leverington; or some other combination of individuals.
In my view, it was also patently not the case that there was no alternative other than to make Ms Pop’s position redundant at that particular point and in the manner in which it occurred. One option would have been for the employer or its representative (Mr Taylor) to discuss Dr James’ letter with Ms Pop and ascertain what Ms Pop thought it meant. Another option would have been to take up Dr James’ invitation to approach him for more information, particularly about what he envisaged would happen in a week’s time.
True it is there is no mention of WorkCover in the letter. I accept Ms Pop’s evidence that she had no understanding of what were her entitlements under the system. From Mr Taylor’s own evidence there was no attempt on his part to enlighten Ms Pop about this issue. The only conclusion that can be drawn from all this evidence, in my view, is that Ms Pop’s employment was summarily and somewhat brutally terminated, largely because her shoulder injury was seen as a potential liability for Fractal Portico.
Mr Taylor asserts that he was merely conveying information about the decision made by others to Ms Pop. If this is the case, why did he feel the need to provide other justification for their decision. It seems to me to be probable that he played a part in making the decision and Ms Taylor deferred to him in respect of it.
It is in this context that the court must examine why the decision to terminate Ms Pop’s was made and consider whether it was done because of Ms Pop’s disability [see DD Act at section 5].Mr Taylor has asserted that he was not a party to the decision and therefore did not make it. It is his position that the decision was made by Mr Leverington and Ms Taylor in concert.
However, neither Mr Leverington nor Ms Taylor has been called to give evidence about the matter. I do not find Mr Taylor’s evidence to be plausible about this incident of the evidence. In addition his evidence can draw no support from the potential evidence of either his wife or Mr Leverington, as he chose not to call them but provided no explanation as their unavailability.
In Railpro Service Pty Ltd v Flavel[23] Perry J said as follows of the principle in Jones v Dunkel:
“….while the principle may make certain evidence or the inferences which may be drawn from the evidence more probable, it does not permit any further inferences that the untendered evidence would have been damaging the party who might have been expected to tender the evidence; nor can the failure to lead the evidence fill gaps in the evidence, or convert conjecture and suspicion into inference.”
[23] Railpro Service Pty Ltd v Flavel [2015] FCA 504 at [95]
In my view, the only logical explanation for the termination of Ms Pop’s employment, on 4 October 2015, was the tender of Dr James’ letter to Ms Taylor, which ultimately came into Mr Taylor’s hands and which he acknowledges he read and considered. This was construed, erroneously as I have found, to be a demand for part time work on Ms Pop’s part.
I reach this conclusion after considering all the evidence available to me, including the evidence concerning Mr Taylor’s role in the office and the fact that Ms Taylor deferred to him, from time to time. In my view, the lack of evidence from Ms Taylor and Mr Leverington makes this conclusion more probable. However, the lack of evidence from these two persons does not convert conjecture into inference.
I have found that, for want of a better expression, Mr Taylor was part of the management team at Chatfield Price and both played a part in making and implementing decisions made by it. It was unacceptable to Chatfield Price that Ms Pop be permitted to work for it, on a part time basis, for what it perceived to be an indefinite period of time.
Dr James’ letter makes refers to Ms Pop having a painful spine currently. It also makes reference to the desirability of her reducing the time at her desk. It is a more difficult and nuanced issue as to whether Ms Pop was terminated because of the disability suffered by Ms Pop within the meaning of section 5 of the DD Act or because Dr James’ letter was misinterpreted. The answer to this issue will lie in sections 5, 10 and 15 of the Act as well as the interpretation of disability.
f) What happened following Ms Pop’s termination
Ms Pop has deposed that she was “extremely shocked” by what Mr Taylor had told her. I can understand why this would be so. From her perspective, she had handed her employer an unremarkable doctor’s letter, which requested, in effect, reduced working hours and light duties for a comparatively short period of time.
Previously, she had not made a secret of the fact that she had been experiencing difficulties, with her shoulder, which she attributed to her desk. In her view, it was an extreme and unfair over-reaction to end her employment, which she considered had hitherto been satisfactory.
It is also Ms Pop’s evidence, which I accept, that she did not fully understand the nature of a worker’s compensation claim. Rather, she had gone to her doctor and physiotherapist for medical reasons and, as a consequence, her doctor had written a letter to her employer. It is her case, again which I accept, that she was not trying to be difficult. In these circumstances, it is only natural that Ms Pop would feel both angry and resentful, at what had happened to her.
In my estimation, Ms Pop is not of a disposition to accept such an outcome with either equanimity or resignation. In her then state of mind, she was not in a position to sort out the issues raised by Dr James’ letter rationally. In these circumstances, the dispute precipitated by the tender of the letter escalated.
Ms Pop’s evidence is that she went to talk to Ms Taylor about what had happened. She elected to record the conversation on her mobile telephone. This recording was not played in open court, but counsel for each party listened to it and confirmed that the transcript, provided by Ms Pop, of it, is accurate. It is also conceded, by both parties, that there was a significant level of heat and emotion in the conversation.
Ms Taylor remonstrated with Ms Pop to not yell at her. Ms Taylor also said “we can’t have somebody here on half day” to which Ms Pop replied “it’s only a week”. Throughout the subsequent conversation, Ms Taylor reiterates words to the effect “we can’t have somebody for half day” to which Ms Pop replies again that it is only for a week. In my view, an analysis of the conversation indicates that Ms Pop and Ms Taylor are at complete cross-purposes. No doubt, at least in part, because of the heated nature of their conversation.
At one point, Ms Taylor says as follows: “It’s up to John. I don’t know, well this is what it is, you have to go 1 o’clock home, you can’t stay here longer.” Obviously, Ms Taylor has not given evidence to indicate what she means by this statement but again, in my view, it reinforces my conclusion that Mr Taylor was instrumental in the decision to terminate Ms Pop’s employment.
The conversation is not an extended one and the parties talk over each other, from time to time. In my view, it is an unfortunate conversation. Neither party seems certain as to any legal implications arising from Dr James’ letter. The conversation contains the following passage:
“Anca – That’s not a sick certificate.
Katerina – It is. It is in writing that you have to finish –
Anca – I’m going to give him a call and I’m going to ask him again because I asked him yesterday just to make sure you don’t have to do it and he said that it’s [Katerina over the top: no it’s not about it but] and he said it’s just a recommendation, that’s how he said it.
Katerina – Well its not a recommendation and he actually puts it in writing that it’s work related and that the desk – we tried to fix your desk, it’s, it’s fixing now, we tried but you have it in writing that it’s our fault so.
Anca – So I’ll talk to Jon (inaudible) this forms. [whole time Katerina talking over top, inaudible].
Katerina – No no no, no.
Anca – Well, it is.
Katerina – Go and talk to him, I just, I really don’t, I’m not here today, I’m really, I didn’t, that’s what I gave to him, and that’s his decision.”[24]
[24] See Ms Pop’s affidavit at page 41
Again, what Ms Taylor meant by her statement that she gave to him and that’s his decision has not been clarified by any evidence from Ms Taylor herself. However, in my view, once again it adds weight to my finding that it was Mr Taylor who was instrumental in the decision to terminate Ms Pop’s employment.
Ms Pop had a conversation with Mr Taylor, following this discussion with Ms Taylor. The parties have a very different view of this conversation, which unlikely the earlier one, Ms Pop did not record. Ms Pop has asserted that she did not record this conversation because she was fearful that if Mr Taylor discovered what she was doing, he would behave aggressively towards her. It is Mr Manuel’s submission that this assertion is improbable and in the absence of such a recording, the evidence of Mr Taylor is to be preferred.
It is Mr Taylor’s evidence that Ms Pop was in “high dudgeon”. In essence, he asserts that Ms Pop was hysterical and was ranting at him in an inarticulate manner, whilst he, on the other hand, was calm and articulate. I do not consider that the absence of a recording affects the credibility of Ms Pop’s evidence.
I do however find that she was agitated and upset, whilst she spoke with Mr Taylor. As such, the conversation between the two was hardly likely to be a constructive one. In addition, given what had happened earlier, I consider it unlikely that Mr Taylor would have been inclined to back down.
In all these circumstances, I consider that both parties are likely to have behaved in a manner, which each would later have had cause to regret. On balance, it does not seem improbable to me that Mr Taylor would have referred to Ms Pop as a “princess” and asserted that the injury to her shoulder was her own “fault”.
It seems probable to me that Mr Taylor would have acted in such a manner because the effect of his termination of Ms Pop’s employment was to abrogate any responsibility, on the part of Chatfield Price, for Ms Pop’s difficulties.
In all these circumstances, I accept that Ms Pop felt humiliated at the circumstances surrounding Mr Taylor escorting her from the premises of Chatfield Price. In addition, I accept that Mr Taylor was aggressive in his manner towards Ms Pop causing her obvious emotional dysregulation and embarrassment.
Ms Pop’s evidence, which I accept, is that she had to pack her belonging hurriedly into her backpack. She was upset and dropped things. Mr Taylor did not offer to help her in any constructive manner but mockingly pick up her water bottle. It was not a dignified way for Ms Pop to leave the place at which she had worked for in excess of six months.
In my view, what should have been a routine incident of office life, involving a relatively minor injury to an employee, was grievously mishandled. As such, there was no opportunity to discuss properly the implications of Dr James’ letter for either Ms Pop or for Chatfield Price. Rather, Mr Taylor behaved in a high-handed manner towards Ms Pop.
Ms Pop was escorted from the premises of Chatfield Price by Mr Taylor. She was not given an opportunity to say goodbye to her fellow employees. I am satisfied that Ms Pop felt humiliated at how she was treated.
Subsequently, Fractal Portico and Chatfield Price were placed into voluntary liquidation. This occurred shortly after Ms Pop had commenced wrongful dismissal proceedings in the Fair Work Commission. No explanation has been provided, by Mr Taylor, as to why the companies were liquidated. In his evidence, he abrogated any responsibility for these liquidations, as he didn’t own either company.
On 18 October 2013, Ms Pop received two week’s pay in lieu of notice. It is her evidence that she suffered a loss of confidence, following her termination at Chatfield Price. As a consequence, she asserts that it took her some seven months to find a further position.
Ms Pop deposes that she applied for approximately one hundred positions, some of which were not related to her professional qualifications, but found it very difficult to get an interview. It is her case that her job prospects were hampered by the fact that she did not have a reference from her last employer.
She has now obtained a position, as an administrative assistant, at another firm of accountants. However, her salary is less than that which she was earning at Chatfield Price. In these circumstances, Ms Pop contends that she has suffered economic loss, which she characterises as follows:
“… I was unemployed from 5 October 2013 and was without earnings from 19 October 2013 to 24 March 2014. If I had been employed by the Employer during that period, I would have earned income of $16,269.06 plus compulsory superannuation of $1,504.39 and would have accrued 1.732 weeks of annual leave (which would have been paid out at $1,250.44). In total, therefore, I would have earned $19,023.89.”[25]
[25] See Ms Pop’s affidavit at paragraph 57
It is also Ms Pop’s evidence that, due to her constrained financial circumstances, following the termination of her employment, she was not in a position to undertake the rehabilitation necessary to treat her shoulder. She asserts that this delay caused her to incur additional medical treatment, at a cost of $1,532.00. This assertion is not supported by any independent medical evidence.
It is common ground between the parties that, on 9 October 2013, Ms Melissa Stephens telephoned Ms Pop and informed her that Mr Taylor was open to her returning to work at Chatfield Price. It is Ms Pop’s evidence that it was understanding that this would be as an independent contractor and subject to her obtained an ABN.
The evidence about this issue was not examined at trial. Mr Taylor’s position is that Ms Taylor wished to be conciliatory to Ms Pop and it occurred without consultation with him. He further asserts that it was decided to use Ms Stephens to convey the offer to Ms Pop as she (Ms Pop) had been “in such a bad mood on the day of her dismissal.”
Ms Taylor is not available to give evidence as to her motivation. I am dubious about the slant Mr Taylor wishes to place on the incident. It seems to me to be more likely than not that the offer of employment was on a consultancy basis and was somewhat begrudgingly made in an attempt to protect Fractal Portico, Mr Taylor and Ms Taylor.
I can understand why Ms Pop declined the offer, given what had transpired between her and Mr Taylor on 4 October 2013. It seems to me that the relationship between Ms Pop and Mr Taylor, Ms Taylor and Fractal Portico had been irretrievably damaged as a consequence of what had happened.
However, that the offer was made, adds significantly to my finding that there is no substance to Mr Taylor’s assertion that there were deficits in Ms Pop’s work or that either he or Ms Taylor considered that there was some defect in Ms Pop’s qualifications.
Consideration
a) Was Ms Pop suffering a disability for the purposes of the Disability Discrimination Act, when her employment was terminated
Ms Pop’s evidence is that she has suffered from mild scoliosis from birth. Later, whilst she was employed at Chatfield Price, I accept that she suffered inflammation in her shoulder and left wrist. I am satisfied that this condition caused a malfunction of Ms Pop’s left shoulder.
Pursuant to section 4(e) of the DD Act, disability means, amongst other things, the malfunction of a part of a person’s body. The expression includes imputed conditions and ones which are temporal in nature.
Malfunction is defined as a failure to function in a normal or satisfactory manner.[26] Ms Pop consulted Dr James and then Mr Kavanagh because her wrist and shoulder were not functioning in a manner satisfactory to her. In these circumstances, I accept that Ms Pop was suffering from a disability, as defined by section 4 of the DD Act, when her employment was terminated.
[26] See Australian Oxford Dictionary
b) Did Mr Taylor directly discriminate against Ms Pop, when her employment was terminated
As I have found, the catalyst for Ms Pop’s dismissal was the delivery of Dr James’ letter, initially to Ms Taylor and then to Mr Taylor. The import of the letter was that Ms Pop had a “painful spine” which required some accommodation in the workplace. Again, as I have found, Mr Taylor determined that this accommodation could not be provided to Ms Pop, although I have also found that he is likely to have misconstrued the letter.
Dr James’ letter was produced because of Ms Pop’s disability and the doctor’s view that she needed to reduce her hours, at least temporarily. This was unacceptable to Mr Taylor and caused him to terminate Ms Pop’s employment. The only logical explanation for this action was Ms Pop’s disability, as outlined in the doctor’s letter.
The implication of Mr Taylor’s evidence is that the reason why Ms Pop was terminated, was that Chatfield Price could not accommodate a part-time staff member. However, the reason why Ms Pop had been recommended to work part-time, by Dr James, was her disability. In this context, I am satisfied that it is disingenuous for Mr Taylor to assert that Ms Pop was terminated because she could only work part-time, when the reason for this was because of her (Ms Pop’s) disability. It is a circular argument.
In this particular case, I am satisfied that Mr Taylor has both permitted and aided any principal source of the discrimination against Ms Pop. He was the office administrator at the time; he was a party to the purported discussion between Ms Taylor and Mr Leverington, which determined that Ms Pop’s employment should be terminated.
Clearly he aided this decision to be made in the sense that he conveyed it to Ms Pop and then facilitated its carrying out. Without Mr Taylor’s assistance, there would have been no unlawful conduct in this case. More importantly, he did nothing to dissuade either Ms Taylor or Mr Leverington from the conduct on which, on Mr Taylor’s evidence, both were intent.
In another context – that of accessorial liability arising from a breach of a workplace right arising under the Fair Work Act – Lucev FM (as His Honour then was) said as follows:
“Provisions in relation to accessorial liability are designed to ensure that persons involved in contravening conduct, often directors or very senior employees of corporations, are held liable for their conduct insofar as it resulted in a contravention of the relevant legislation. Further, they also ensure that liability is able to be imposed on persons involved in the contravening conduct in circumstances where a company has, for example, become insolvent or been deregistered, and no penalty would otherwise be recoverable.” [38]
[38] Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207 at [84]
In my view, these comments are apposite to the current matter. Mr Taylor was a senior person in respect of how the activities carried out by both Fractal Portico and Chatfield Price at 222 Glen Osmond Road were organised. He was instrumental in the engagement of Ms Pop in the first place and oversaw such things as her time keeping and the configuration of her workplace. In these circumstances, he was something more than a co-employee.
In addition, Mr Taylor was privy to discussions between Ms Taylor and Mr Leverington and, in my assessment, was more than capable of influencing their decisions. Significantly, in my view, no satisfactory explanation has been given as to the deregulation of both Fractal Portico and Chatfield Price and neither Mr Leverington nor Ms Taylor have been called to provide evidence in this regard.
f) Inherent requirements
It is Mr Taylor’s position that even if he is found to have discriminated against Ms Pop, he is absolved from liability because Ms Pop was not able to carry out the inherent requirements of the position of bookkeeper at Chatfield Price because she was only capable of working on a part time basis, due to her shoulder complaint.
Section 21A(1) of the DD Act provides as follows:
Inherent requirements
(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discrimination relates to particular work (including promotion or transfer to particular work); and
(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
As previously indicated, the onus is on Mr Taylor to call sufficient evidence to establish this exception to the application of the Act.
Section 21A(2) sets out the following factors which are to be considered by the court in its determination as to whether a particular person is able to carry out the inherent requirements of any particular work:
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person’s past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator—the aggrieved person’s performance in working for the discriminator;
(c) any other factor that it is reasonable to take into account.
The first issue therefore is what were the inherent requirements of Ms Pop’s position, as a bookkeeper, at Chatfield Price. The onus is on Mr Taylor to detail them. In my view, the only putative inherent requirement, which he has supplied, is the ability to work full time for an indefinite period of time. He asserts that Ms Pop was incapable of working full time, which was a condition of her contract of employment.
In this context, Mr Manuel places reliance on what was said by Gummow and Haynes JJ in X v Commonwealth of Australia & Anor[39] as follows:
“The reference to ‘inherent’ requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”
[39] X v Commonwealth of Australia & Anor (1999) 200 CLR 177
In my view, Mr Taylor’s assertion, regarding Ms Pop inability to work on a full time basis, is based on an erroneous interpretation of Dr James’ letter, which said no such thing. Dr James recommended that Ms Pop work part time for a period of a week, until a review of her condition took place. As I have previously indicated, it is extremely regrettable that all concerned reacted precipitately to the letter concerned.
For the reasons provided earlier in these reasons for judgement, I am satisfied that Ms Pop had appropriate qualifications and experience to be a book keeper at Chatfield Price. I am also satisfied that Ms Pop’s work performance was satisfactory. As is axiomatic, the considerations potentially arising as a consequence of section 21A(2)(c) are broad indeed.
In X v Commonwealth McHugh J said as follows, in respect of the legislative precursor [section 15(4)] to the section:
Whether something is an "inherent requirement" of a particular employment for the purposes of the Act depends on whether it was an "essential element" of the particular employment. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment …
[E]mployment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment…
[I]n determining what the inherent requirements of a particular employment are, it is necessary to take into account the surrounding context of the employment and not merely the physical capability of the employee to perform a task unless by statute or agreement that context is to be excluded. Far from rejecting the use of such context, s 15(4) by referring to "past training, qualifications and experience ... and all other relevant factors", confirms that the inherent requirements of a particular employment go beyond the physical capacity to perform the employment.[40]
[40] Ibid at 208
Ms Pop had been attending at Chatfield Price for a period of around eight months. During this period, she had demonstrated that she could complete the inherent requirements of her position, namely entering financial information and preparing accounting documents, whilst seated at her work station. During this process, it is her evidence, which I accept, that she suffered some inflammation in her shoulder, which caused her pain.
Dr James recommended rest and review. In my view, Dr James’ letter indicated that it was preferable, in the interests of Ms Pop’s health, that she work reduced hours for a finite period of time. The letter did not assert that she was incapable ad infinitum of being a book keeper, who needed to use a computer terminal.
As McHugh J indicated, it is necessary to look at the social context in which this incident occurred. Sickness and temporary incapacity are common exigencies of the workplace. Employees may also seek leave from employment for other legitimate reasons relating to such things as the need to tend to family or other caring responsibilities.
There is a legitimate expectation that employers will deal with such exigencies and make allowances for the employee concerned, particularly if the condition affecting their work is likely to be a temporary one. In all the circumstances of this case, as at 4 October 2014, there was no reasonable basis on which Mr Taylor was entitled to conclude that Ms Pop was incapable of carrying out the inherent requirements of her position as a book keeper, which she had hitherto satisfied.
It also seems to me that it was open to Mr Taylor, either of his own volition or in his role as administrator of Chatfield Price, to make reasonable adjustments in order to accommodate Ms Pop’s temporary disability. Again, in my view, such things are part of the normal incident of employment.
In X v Commonwealth McHugh J considered that the issue of reasonable adjustments had to be considered when the sub-section was read as a whole. Its object then became apparent that:
“…is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination falling within s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was:
(a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also
(b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide.”
It is my view that Ms Pop’s temporary disability could have been accommodated within her former workplace without any due hardship falling on either Mr Taylor or Chatfield Price. Ms Pop could have been provided with shortened hours for the period of a week, as recommended by Dr James. In my view, it would not have been harsh for Ms Pop to have had such an expectation of her employer given the circumstances of the case.
In Cosma v Qantas Airways Limited[41] Heerey J said as follows:
“The provision does not require the employer to alter the nature of the particular employment or its inherent requirements. Rather it is a question of overcoming an employee's inability, by reason of disability, to perform such work. This is to be done by provision of assistance in the form of "services", such as providing a person to read documents for a blind employee, or "facilities" such as physical adjustment like a wheel chair ramp. The "services" or "facilities" are external to the "particular employment" which remains the same.”
[41] Cosma v Qantas Airways Limited [2002] FCA 640 at [68]
There was no necessity, on the part of Mr Taylor, to alter the nature of Ms Pop’s employment because of her injured shoulder. Rather, her disability could have been overcome by allowing her the reduced hours of work recommended by Dr James, prior to a review. This does not seem to me to be objectively onerous.
In any event, Mr Taylor has provided no evidence of the workload, at Chatfield Price, in the period in question and whether other employees could be seconded to provide assistance to Ms Pop in the short term. This is significant, given where the onus of proof lies in respect of the provision in question. In this case, Mr Taylor made no attempt whatsoever to examine whether Ms Pop’s needs could be accommodated in the workplace.
For the reasons outlined above, I am satisfied that Ms Pop has made out her case against Mr Taylor that he has contravened provisions of the DD Act and particularly that, in terminating her employment, Mr Taylor unlawfully discriminated against Ms Pop.
Damages
Pursuant to section 46PO(4)(d) of the AHRC Act the court is authorised to order Mr Taylor to pay Ms Pop an amount of compensation “for any loss or damage suffered” suffered by her because of Mr Taylor’s conduct. It is clearly not the role of compensation to punish Mr Taylor in any way for his conduct. The purpose of damages is restorative.
As a consequence of Ms Pop being terminated from her position at Chatfield Price, in my view, she suffered some degree of loss, in economic terms, because she lost her employment and she was hurt at the circumstances in which her employment was terminated.
The process of assessing damages, in a discrimination case, is a difficult one. Damages for such things as hurt, distress and humiliation are not susceptible to mathematical calculation.[42] However, such matters cannot be ignored by the court because of such difficulty.
[42] See Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 256
In addition, Ms Pop was subject to a contract of employment which was capable of being concluded on 20 November 2013, approximately seven weeks after her termination. In addition, she received two week’s pay in lieu of notice and concedes that Mr Taylor offered her the prospect of working at Chatfield Price as a self-employed contractor.
Finally, as is common ground between the parties, Ms Pop was disabled, at least for full time work, for a period of time following her dismissal. As such, at least in hypothetical terms, she was entitled to make a claim for worker’s compensation pursuant to the South Australian statutory scheme. In this context, Mr Taylor has submitted a WorkCover medical certificate, dated 11 October 2013, under the hand of Dr James, certifying Ms Pop as unfit for work between 11 October and 8 November 2013.
Mr Taylor has submitted that there can be no guarantee that Chatfield Price would have wished to employ Ms Pop following the conclusion of her initial contract. Ms Pop contends otherwise. As previously indicated and as I have found, she categorises herself as a valued and capable employee of the firm, who was likely to be kept on. These various factors add complexity to how Ms Pop’s economic loss is to be calculated.
In Qantas Airways Ltd v Gama, the Full Court of the Federal Court (French and Jacobson JJ) said as follows of the statutory task contained in the section:
“The damages which can be awarded under s 46PO(4) ... are damages “by way of compensation for any loss or damage suffered because of the conduct of the respondent”. Such damages are entirely compensatory. In many cases, as in damages awarded under s 82 of the Trade Practices Act 1974 (Cth) the appropriate measure will be analogous to the tortious. That may not be in every case. Ultimately, it is the words of the statute that set the criterion for any award.”
Accordingly tortious principles relating to the assessment of damages are applicable, but not in every case. The court must primarily be guided by the applicable legislation, including its objects.
Ms Pop deposes that her confidence was shaken by her termination. As a consequence, she was not able to return to the workforce until March the following year. In these circumstances, she seeks reimbursement of wages from mid-October until 24 March 2014.
I have not been provided with any expert medical or psychological evidence concerning any idiosyncratic psychological vulnerabilities to which Ms Pop is subject. I must therefore assess her as I perceived her in the witness box, albeit approximately eighteen months after the incident which gave rise to her claim.
Ms Pop seemed to me to a fairly composed and emotionally robust individual. She was clearly aggrieved at her perception that she had been treated highhandedly and unfairly by Mr Taylor. In my view, she was entitled to hold such a perception.
However, I do not consider it likely that her own personal sense of self-worth would have been damaged for any lengthy period of time. Essentially, Ms Pop is of a disposition where she would be able to perceive that she had been the victim of injustice and not blame herself for it. This would enable her to pick herself up and get on with life without undue rumination.
In this context, the evidence indicates that Ms Pop was able to seek redress for herself soon after her termination through procedures in the Fair Work Commission, which ultimately came to naught because of the deregulation of Chatfield Price. In my assessment, Ms Pop is a determined and self-reliant person. I suspect many others would have found the prospect of these proceedings extremely daunting. Not Ms Pop. This speaks of Ms Pop’s resilience.
Mr Taylor submits that Ms Pop has not mitigated her economic damages, on two main bases. Firstly, she did not take up the offer of employment proffered to her via Ms Stephens; secondly, she has failed to pursue her WorkCover claim.
In my view there is no substance to the first submission. Ms Pop had been unceremoniously terminated from her employment. As such, it was untenable for her to return to Chatfield Price. Her employment relationship with both Mr Taylor and Ms Taylor had been irreparably damaged by how she was treated by them, particularly Mr Taylor.
There is some substance to the second submission, but it is hard to quantify. I do not know if there is any particular reason why Ms Pop elected not to take any action in respect of the WorkCover certificate Dr James wrote on her behalf following the consultation between the two on 11 October 2013.
It is also difficult for me to ascertain what was likely to occur on 20 November 2013, which was the formal date on which Ms Pop’s contract of employment was scheduled to conclude. I have not been provided with any evidence of what it was anticipated would be the operational needs of the firm at that time. However, it is Mr Taylor’s evidence that one of the reasons why Ms Pop was terminated was because the accountancy practice was too busy to accommodate a part time worker.
It is Ms Pop’s case that, on balance, it was more likely than not that she would have been retained by Fractal Portico, if she had not suffered her shoulder disability. It is also her case that there is a causal link between her termination and the seven or so months which elapsed before she was able to return to the workforce. In these circumstances, she asserts that it is unreasonable for Mr Taylor to assert that she has sustained no economic loss.
I am required to make an assessment of what damages Ms Pop should receive for the lost chance of her employment with Chatfield Price, particularly how for long such employment would have extended. In a similar context, albeit sexual discrimination rather than disability discrimination, the Full Court of the Federal Court (Besanko and Perram JJ), in Richardson v Oracle Corporation Australia Pty Ltd[43] found it useful to adopt the manner in which the real chance of persecution is assessed in refugee cases, to the issue.
[43] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
In this context Their Honours cited the following passage from Minister for Immigration & Ethnic Affairs v Guo as follows:
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.”
As I understand it, the past is a useful tool for assessing what is likely to happen in the future, but not infallibly so. How useful the past will be in this regard is a question of context. Night will follow day, on the one hand; but one turn of a roulette wheel has no predictive value for the next.
Chatfield Price was a small business with a limited number of employees. From the evidence of Mr Taylor, I am satisfied that a large part of its modus operandi was to avoid exposure to potential suit from its employees, particularly those it regarded as potentially difficult or having outlived their usefulness to the firm. It seems likely that the date of 20 November 2013 was inserted into Ms Pop’s contract of employment to this end.
In these circumstances, even if Ms Pop had not been dealt with in the manner in which she was on 4 October, I do not think that it can be taken as a given that her employment would have been extended post 20 November. On this date, the employer may have had an ostensibly legitimate reason to end its relationship with Ms Pop, which was distinct from her disability, which was transitory in nature.
In all these circumstances, including the degree of uncertainty surrounding the application of WorkCover to Ms Pop’s situation, I believe that there is a need to significantly discount Ms Pop’s assessment of her economic disadvantage for the period between October 2013 and March of 2014. In particular, because of the strong probability that Fractal Portico would have sought to take advantage of its fixed term contract with Ms Pop.
Ms Pop was earning $1,305.75 gross per fortnight, whilst she was employed as a bookkeeper at Chatfield Price. She received a fortnight’s pay following her termination. Accordingly, on my calculations she lost about a month’s wages as a consequence of what occurred.
To her credit, Ms Pop has now achieved employment in her chosen field. Accordingly her dismissal from Chatfield Price was a temporary setback, which she has been able to overcome, albeit after tenaciously searching for work for a period of around six months. In all these circumstances, I assess Ms Pop’s direct economic loss in a sum of $5,000.00.
I do not propose to make any award of damages in respect of Ms Pop’s claim for medical expenses which she alleged were deferred given the absence of medical evidence in support of these payments. This leaves the assessment of general damages.
In Clarke v Catholic Education Office & Anor[44] Madgwick J rejected any assertion that there was any policy reason why an award of damages for a breach of the DD Act should be substantial or not so low to avoid its consumption by non-recoverable costs. He said as follows:
[44] Clarke v Catholic Education Office & Anor (2003) 202 ALR 340 at [83]
“Damages are compensatory and no more.”
As previously indicated, it is not possible to calculate damages by reference to some mathematical formulation and it would be extremely artificial to do so. In addition, reference to previous cases, is not always helpful. Rather, regard must be had “to the general standards prevailing in the community” whilst bearing in mind that “it is impossible precisely to translate pain and suffering and loss of enjoyment of life into money values.”[45]
[45] See O’Brien v Dunsdon (1965) 39 ALJR 78 referred to by Kenny J in Richardson (supra) at [90]
In Richardson Kenny J (with whom Besanko and Perram JJ concurred) set out a lengthy history of the assessment of general damages in the area of sexual discrimination and harassment. She confirmed that such damages needed to be assessed according to community standards and noted that in this regard it was apparent that the contemporary community placed higher store on compensation for pain and suffering than previously.
Kenny J also referred to comments made by May LJ in Alexander v Home Office [46] as follows:
“For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge…Further, injury to feelings, which is likely to be of relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life.”
[46] Alexander v Home Office [1988] 1 WLR 968
In my view, these comments are apposite to the current matter. Ms Pop did not suffer any physical injury. In addition and importantly, there is no expert evidence to indicate, in the terminology of May LJ, an injury to her mind, such as depression or an anxiety disorder.
I accept that Ms Pop was distressed and humiliated by Mr Taylor’s treatment of her. However these emotions, albeit powerful, are likely to have been transitory in nature. As I found her, Ms Pop is a resilient and determined person, with the capacity to overcome such distress relatively quickly.
I have found that Ms Pop suffered from a disability, as defined by the applicable legislation. On her own evidence, the scoliosis of her spine, from which she has suffered since childhood is a minor condition, which is not visible to the untutored eye. The inflammation in her shoulder, precipitated by her work station and exacerbated by her scoliosis, was a transitory condition, from which Ms Pop has made a full recovery.
The humiliation felt by Ms Pop arose because she was unfairly and arbitrarily dismissed, not because she was mocked or pilloried for her condition, by either an employer or a workmate. No harsh words were applied to her because of any obvious physical or mental disability which she displayed.
Ms Pop was only temporarily disabled from pursing her occupation as a bookkeeper and should not have been arbitrarily dismissed because of her condition. In many ways, this was a fairly run of the mill workplace situation, which regrettably has been grossly mishandled. It should not have come this far.
That is has come to this is both a mark of Ms Pop’s determination and indicative of the intransigence of Mr Taylor. It is also significant that the Fair Work proceedings came to naught because of the deregulation of both Fractal Portico and Chatfield Price. This apparently prevented the adjudication of this matter in a forum appropriate to it. No concessions whatsoever were made by Mr Taylor.
In this court, the proceedings have been hard but fairly fought. Mr Manuel was scrupulously fair and courteous throughout. However, the fact remains that many obstacles were placed in Ms Pop’s path. Again, that she overcame them is indicative of both her physical and mental strength. It is clear to me that what occurred to Ms Pop on 4 October 2013 was a temporary setback, from which she has been readily able to recover and resume her career.
The greatest salve for Ms Pop’s hurt feelings is likely to be success in these proceedings. For all these reasons, I propose to award a modest amount of general damages, not to trivialise Ms Pop’s hurt, but because the actions of Mr Taylor have had limited adverse personal effect on her.[47] I propose to award a sum of $5,000.00 for general damages. I do not consider it appropriate to make any award for aggravated damages.
[47] See Kraus v Menzie [2012] FCA 3 per Mansfield J
Accordingly the total award of damages is $10,000.00. I assess interest on the total award in the sum of $1,000.00 pursuant to section 76(3) of the Federal Circuit Court Act 1999 (Cth).
Ms Pop seeks an apology. Any salve to her feelings would come from a sincere or heartfelt apology. Given the stance taken in this case, by all involved in it, any apology directed to be made would not be genuine. It would be an empty token. I will make no such order.
The applicant seeks costs in her favour. Given that she has been successful, it is appropriate that costs should follow the event. I will direct that the costs so awarded be calculated according to the Rules of the Court, particularly by reference to the specified events stipulated in Schedule 1.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and nine (309) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 26 June 2015
2
15
6