Power v BOC Ltd

[2017] FCCA 1868

FEDERAL CIRCUIT COURT OF AUSTRALIA

POWER v BOC LTD & ORS [2017] FCCA 1868

Catchwords:
INDUSTRIAL LAW – Adverse action – termination – terminating employment on a specific day – pregnancy – workplace right – alleged discrimination – effect of s.84 Fair Work Act 2009 (Cth).

Legislation:

Fair Work Act 2009, ss.84, 340, 342, 351, 361

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451

Applicant: CAROLINE POWER

First Respondent: BOC LTD (ACN 000 029 729)

Second Respondent: ANDREW FINNIE

Third Respondent: TROY HARRIS

File Number: BRG 167 of 2016

Judgment of: Judge Vasta

Hearing dates: 16 and 17 May 2017

Date of Last Submission: 7 August 2017

Delivered at: Brisbane

Delivered on: 9 August 2017

REPRESENTATION

Counsel for the Applicant: Mr Reidy

Solicitors for the Applicant: Adam Wilson Lawyer

Counsel for the Respondents: Mr Dwyer

Solicitors for the Respondents: AI Group Lawyer Pty Ltd

ORDERS

THE COURT DECLARES THAT:

1. The First Respondent breached s.340 of the Fair Work Act 2009 (Cth) (“the FW Act”) by bringing forward the date of redundancy of the Applicant from 12 November 2015 to 4 November 2015:

THE COURT ORDERS THAT:

1. The Application as against the Second and Third Respondent be dismissed.

2. The parties file and serve any written submissions as to penalty by no later than 4.00pm on 11 September 2017.

3. The matter be adjourned for penalty hearing to 2:15pm on 18 September 2017 in the Federal Circuit Court of Australia sitting at Brisbane.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 167 of 2016

CAROLINE POWER

Applicant

And

BOC LTD (ACN 000 029 729)

First Respondent

ANDREW FINNIE

Second Respondent

TROY HARRIS

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant, Caroline Power, began working with the Respondent company, BOC Ltd, in March 2013. Some 2 years later, in March 2015, the Applicant discovered that she was pregnant. She informed her superiors at the Respondent company at the appropriate time and her leave was eventually approved to begin on 6 November 2015. On 4 November 2015, the Applicant’s employment was terminated.

2. The Respondent company claims that the termination was as a result of a redundancy whereas the Applicant claims that this adverse action was because the Applicant was pregnant and was about to take parental leave. The Applicant has made this claim pursuant to s.361 of the Fair Work Act 2009 (Cth) (“the FW Act”) which obliges the Respondent company to prove that they did not take the adverse action because of this prohibited reason.

The Employment of the Applicant

1. The vast majority of the factual matrix of this matter is not in dispute. The Respondent company is a national company and has many offices throughout Australia. One of those offices is in Mt Isa. The Applicant became the key customer accounts manager in Mt Isa in December 2014.

2. In that role, the Applicant was responsible for the “on the ground administration” for a number of large companies who purchased goods from the Respondent company. In this position, the Applicant was the liaison between the customer and the Respondent company. She managed the background data and stock levels of goods purchased as well as the expectations of the customer. According to the Applicant, her key responsibilities were health and safety, business development, continuous improvement and increased applications knowledge (whatever that actually means).

3. There is no dispute that the Applicant was extremely competent in this position and was a true asset for the Respondent company.

4. The Applicant was paid an annual salary of $78,953.00. This included a $10,000.00 rural allowance. She was paid superannuation at a rate of 13% of her base salary. She was also entitled to a commission of $2,500.00 if she met her dollar targets each quarter. The Applicant also had full private use of a company vehicle and the benefit of full private use of a laptop and mobile phone supplied by the Respondent company.

The Respondent Company

1. BOC Ltd supplies compressed and bulk gases, chemicals and equipment. It is part of the Linde group which has over 600 affiliated companies in about 100 countries around the world. They service customers from the industrial, retail, trade, science, research and public sectors with a number of products and services.

2. The immediate superior of the Applicant was Andrew Finnie, the Second Respondent. The Second Respondent was the key customer sales manager for the Eastern region. He was based in Sydney but his territory included the whole of the eastern seaboard. The key customer sales manager for the western region was Samuel Rawson. The national executive manager was Troy Harris, the Third Respondent.

3. These three managers were at the same level within the company and they all reported to the general manager, Tony Newnham.

BOC Policies

1. The Respondent company has two policies that do have some relevance to this particular matter. The first policy is called “Leaving BOC” and, in that policy, it deals with how the company will handle the issue of redundancies. The policy includes these words:-

   “Redundancy is normally considered an option of last resort and employees in redundant positions will be given every opportunity to secure suitable alternative positions within BOC…..The prospect of redundancy often has a strong emotional impact on the affected employee and their family. Therefore all redundancy situations will be handled carefully and sensitively by BOC.”

2. The policy provides that outplacement counselling services would generally be offered to redundant employees. The policy provides that, broadly speaking, the severance package is 6 weeks’ pay and an additional 3 weeks’ pay for every year of service.

3. The policy also provides for the manager to meet with the affected employee, explain the reason for the redundancy, give them all appropriate information and to notify them, if the redundancy is to definitely go ahead, of the date of termination. The policy seems to envisage that there will be some time between that discussion and the actual termination during which there will be discussions between the manager and the affected employee.

4. The second policy is the paid parental leave policy. This policy is to fit in with the provisions of the FW Act regarding maternity leave and paid parental leave. This policy is designed to complement the paid parental scheme of the Federal Government. Whereas the government paid parental scheme offers 18 weeks leave at the minimum wage, the BOC policy provides for up to 21 weeks paid leave for any employee who takes parental leave to be the primary carer of the child.

5. To be eligible for such leave, a person must have been with the company for 12 months, have made an application for the government scheme and undertake not to engage in any paid work during the paid parental leave period.

6. What this meant for the Applicant was that, if such leave was granted, she would receive her full salary for the period of 21 weeks including the superannuation component. Obviously, this is a very generous scheme.

Chronology

1. The restructure that saw the Applicant promoted to her position and the appointment of the Second and Third Respondents (and Mr Rawson) to their positions in late 2014, was part of a number of ongoing changes within the Respondent company.

2. In May 2015, the staff members of the Respondent company were informed about the fact that changes were going to occur. This was known as “Project Lighthouse”.

3. In the meantime, the Applicant and the Second Respondent were discussing arrangements to take place when the Applicant would be on maternity leave. On 20 August 2015, the Applicant advised the Second Respondent that she was hoping to work the full term of her pregnancy. As her due date was 5 December 2015, the Applicant had hoped to finish work on Friday, 27 November 2015.

4. Subsequently, the Applicant discovered that some health complications meant that she now had a high risk pregnancy. It was after getting that news that the Applicant decided that she would take her annual leave earlier. She advised the Second Respondent about this.

5. This meant that while the Applicant would be on maternity leave from 6 November 2015, she would be paid her annual leave followed by her paid parental leave.  This would give her 6 months of normal pay during her maternity leave.  At the expiry of this period, she could return to work or continue to stay on maternity leave (which would be unpaid) as long as she returned to work by 5 November 2016.

6. On the evidence before me, it is clear that there were many discussions, and some anxiety, about what would occur when the Applicant took her leave. The evidence shows that there were a number of projects with which the Applicant was very familiar that needed proper continuity if they were to be successful.

7. In early September 2015, an email from Colin Isaac was sent to all staff that contained the following observation:

   “I must emphasise this initiative is a progressive change in the way we work rather than a re-organisation of team structures. Lighthouse is a sustained and multi-year initiative which progressively – yet substantially – alters how we conduct our everyday roles.

   At various stages over the next three years, processes will be adjusted and aligned to our vision of growth and efficiency for the long term. As with all processes changes, people’s roles will evolve, new skill sets and capabilities will be developed and in some cases, roles will no longer be required to deliver the new processes.”

8. After that email was sent, Mr Newnham reviewed the operation of the whole key customer account division which included a review of the number of customers and their locations. The result of this review and analysis was an identification that the customer base of BOC at Mount Isa was the smallest in Australia.

9. On 28 September 2015, the Applicant advised the Second Respondent that her final date at work would be 6 November 2015. She reiterated her anxiety about her replacement. The Second Respondent advised the Applicant that he “had this all in hand” and would communicate to the Applicant when decisions had been made.

10. On 30 September 2015, Bruce Currie sent an email to all staff that BOC. Relevantly, the email informed all of the staff that:

    “These changes in how we work will require a reduction of the Sales & Marketing team of between 5-10% over the 12 month period. We will achieve this using natural attrition and sourcing suitable alternative roles for displaced employees where possible, but ultimately some employees will transition out of BOC with appropriate support offered.”

11. Obviously, such an email put all staff on notice that redundancies would be occurring within the company. The Applicant gave evidence that she never considered that her position would be a target of such redundancies because of the very good work that was being done by her.

12. The Second and Third Respondents, as well as Mr Rawson, gave evidence that they were involved in this “whole of Department” review with an eye on looking at what redundancies could be made in line with the reforms being undertaken by the Respondent company. This was occurring throughout October 2015.

13. On 21 October 2015, the Applicant emailed the Second Respondent and again enquired as to what, if any, decision had been made on her replacement. She did not receive a reply until 26 October 2015.

14. In the meantime, the evidence discloses that the review team had discussed a number of options. A decision had been made that there would be eight redundancies from key customer accounts area. One of those redundancies was to be the Applicant.

15. The Second Respondent gave evidence that he had signed a confidentiality agreement on 20 October 2015 to the effect that he could not divulge what was occurring in these discussions. This is important because when one looks at the email correspondence between the Applicant and the Second Respondent from this day onwards, it is obvious that the Second Respondent has been less than frank with the Applicant.

16. In the reply of 26 October 2015, the Second Respondent told the Applicant that he would communicate with her later in the week as to how to manage the handover of her position. The next day, the Second Respondent set up a teleconference that included a person called Alan Vare. That person held at the equivalent position to the Applicant but in the Townsville office. During that teleconference, the Second Respondent announced that Mr Vare would be managing the accounts of the Applicant from Townsville during the maternity leave of the Applicant.

17. The Second Respondent and then arranged for Mr Vare to fly from Townsville to Mount Isa as part of the handover.

18. That conversation takes on a different complexion when one considers the evidence of the Second Respondent, Third Respondent, Mr Rawson and Mr Newnham. In their discussions, they considered that, for the northern Queensland area that comprised Townsville and Mount Isa, there was a need to reduce the two positions held by Mr Vare and the Applicant into one position.

19. The reasoning was that there are more sales conducted out of Townsville then there are out of Mount Isa; therefore, there should be one position, based in Townsville, servicing all the areas serviced by Townsville and Mount Isa. As to who should occupy that position, the thinking was that Mr Vare, having been an employee for nearly 15 years, had greater experience than the Applicant who had been an employee for not quite 3 years.

20. Therefore, even though the Second Respondent had told Mr Vare and the Applicant that Mr Vare would be managing the accounts of the Applicant while she was on leave, the reality of the situation was that this was to be the permanent arrangement. However, this was not communicated to either the Applicant or Mr Vare in this phone call of 27 October 2015.

21. Soon afterwards, the Applicant received an electronic meeting request from the Second Respondent for a meeting on 4 November. There was no detail to the request other than the meeting was to be between Mr Vare and the Second Respondent as well as the Applicant. On 2 November 2015, the Applicant sent an email to the Second Respondent asking him what the purpose of the meeting was. The Second Respondent replied advising that the meeting was to discuss arrangements for the handover.

22. On 4 November 2015, both the Second Respondent and the Third Respondent travelled to Mount Isa. Whilst the Second Respondent was expected at the Mount Isa office, the Third Respondent was not expected. Mr Vare and the Applicant had spent a great deal of time organising the takeover. At the scheduled meeting time of 4 PM, the Second Respondent asked the Applicant if they could “have a chat”.

23. The Applicant and the Second Respondent went into a room where they were joined almost immediately afterwards by the Third Respondent. It was then that the Second Respondent informed the Applicant that she was being made redundant.

24. There is no real contest as to what occurred in that meeting. The Applicant was handed a letter informing her of the decision that she was to be made redundant and that the decision was due to a business restructure. The Applicant testified that she asked whether it was a performance issue and she was assured that it wasn’t a performance issue and that her performance had been “great”.

25. The Applicant testified that she asked if the decision was made because she was pregnant. The Third Respondent replied that the truth was that the decision was made because of cost-cutting. The Applicant testified that she then became quite emotional and asked both the Second Respondent and the Third Respondent to leave the room so that she could try and compose herself.

26. There is no dispute as to these issues. The Second Respondent testified that for the purpose of conducting this meeting with the Applicant, a redundancy package had been prepared containing information around support and counselling.

The Issues Raised in the Application

1. The Applicant contends that there was no business case for a redundancy and that the Applicant was singled out. She claims that the termination occurred because she was about to take maternity leave and the termination would mean that the Respondent company did not have to pay her that maternity leave. The Applicant claims that she has been discriminated against because she is a woman and a pregnant woman who would soon have family responsibilities.

Who is the decision-maker?

1. Before embarking upon all of the issues raised in the application, the Court should determine who has made the decision to terminate the employment of the Applicant. The Applicant joined the Second Respondent and the Third Respondent as parties to this litigation and claimed that they were the decision-makers on behalf of the company.

2. It seems that such a claim is based on the fact that it was the Second Respondent and the Third Respondent who informed the Applicant that she was to be made redundant. Neither of those Respondents informed the Applicant that the decision was made by Mr Newnham.

3. The evidence that was given by the Second Respondent, the Third Respondent and Mr Rawson, was that the decision maker was Mr Newman. Mr Newman gave evidence that he was the decision maker. He gave quite unequivocal evidence that it was his decision, and his decision alone, to terminate the employment of the Applicant.

4. Notwithstanding this, the Applicant still urges me to find that the Second Respondent and the Third Respondent were involved in the decision-making.

5. The inference sought to be drawn would seem to rely on National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451.

6. In that matter, the Court determined that the Royal Melbourne Institute of Technology had failed to prove that the decision to terminate Professor Bessant was solely due to redundancy, and the Court accepted the argument put by the NTEU that the reason for her termination was an adverse action as a result of Professor Bessant exercising a workplace right.

7. Professor Gardner was the primary decision maker, and her evidence did not demonstrate that the decision was unrelated to Professor Bessant's exercise, or proposed exercise, of her workplace rights.  The Court did not accept that Professor Gardner was the sole decision maker as Professor De la Harpe and Ms Gough made decisions that were an essential part of the process leading to the ultimate decision to make Professor Bessant redundant. However neither Professor de la Harpe nor Ms Gough were called as witnesses. As they weren’t called, the employer failed to discharge the onus.

8. One surmises that this is the reason that the Respondents have called Mr Rawson to give evidence; that is, to ensure that there was not going to be a submission from the Applicant that Mr Rawson, as well as the Second Respondent and Third Respondent, were an essential part of the process that led to the ultimate decision.

9. On the facts in this case, I am of the view that Mr Newman was the sole decision maker. He may well have relied upon information given to him by the Second Respondent, Third Respondent and Mr Rawson, but ultimately, this was a decision solely made by Mr Newman.

Redundancy

1. Whilst I accept the evidence of the Applicant that she was a good worker and how well she had managed her position, I cannot accept her conclusion that there was no business case for a redundancy. I can certainly understand the frustration felt by the Applicant; if one is doing a very good job and the job is benefiting the company, it is always difficult for the person in the job to understand how such a job would not be necessary.

2. However, the Applicant is only looking at the position from where she sits. She has no real appreciation of the business from a national level. Unfortunately for the Applicant, this is a decision made in offices in Sydney and not on the ground in Mt Isa.

1. The decision was made after a review had been done of the company as a whole. There have been meetings within the upper echelon of the key customer account team of which the Applicant was not involved. The evidence from those people who were involved in the discussions has been consistent.

2. The final decision for the Queensland part of the operation was that there should only be one position covering the Townsville/Mount Isa area and not two; and that there should be only one position covering the Mackay/Rockhampton area and not two.

3. There is nothing before me that would, in any way, put any doubt into the genuineness of such a decision. Business decisions are made every day and there will always be others who have a contrary opinion. From where the Applicant sat, she had a contrary opinion. Whether that opinion is correct or not, is not to the point. While it is for the Respondents to prove to me that this was a business decision and not a decision made for a prohibited reason, I can find no evidence that would lead me to doubt this assertion. On this aspect, the Respondents have discharged their onus.

4. It is also instructive to note that in the 20 months since this decision was made, the duties formerly performed by the Applicant are still being performed by Mr Vare from his base in Townsville. It is also instructive to note that there were 8 redundancies in total from this process.

5. I conclude that there was a business case for redundancy.

Discrimination

1. Even though I have concluded that there was a business case for redundancy, the question is “why was the Applicant chosen for redundancy?”

2. The Applicant has alleged that she was chosen because she was pregnant; or because she was about to go on maternity leave; or because she was a person who would have to do care for family members; or a combination of the above reasons, it is for the Respondent company to prove that they had not engaged in discrimination of the Applicant.

3. The evidence of the Second Respondent was that he always knew that the Applicant was pregnant. He was the one who had approved her leave and had explained to her how to structure the leave. He was always cognisant that whilst the Applicant only intended to have 6 months away from her job, circumstances could change and the Applicant may need a full 12 months away from the job.

4. Up to the point of redundancy discussions occurring and the Second Respondent signing a confidentiality agreement, the evidence clearly is that the Respondent company through the Second Respondent had done all in its power to ensure that the Applicant’s rights were not just respected, but encouraged.

5. Whilst it was not actually said, the Second Respondent, in the way he answered questions, gave me a very clear inference that he did not, himself, wish the Applicant to be made redundant before she had given birth. I was left with a very clear impression that, even though he knew that the redundancy had to occur, he would rather that such was done well after the Applicant had given birth.

6. It was clear to me that the Second Respondent had recommended that the redundancy of the Applicant not occur until February 2016 when her baby would be at least 2 months old. Such a course was not palatable to the superiors of the Second Respondent, especially Mr Newnham.

7. As I have previously concluded, Mr Newnham was the ultimate decision-maker. In his evidence, Mr Newnham was asked whether or not the pregnancy of the Applicant played any part in his ultimate decision.

8. Mr Newnham categorically denied that the pregnancy played any part in the actual decision. He claimed, consistent with the evidence of the other witnesses for the Respondent company, that the choice as to whom would be made redundant, was between the Applicant and Mr Vare.

9. Mr Newnham claimed that the only factors that influenced the decision to keep Mr Vare and to make the Applicant redundant were the size of the accounts for which Mr Vare was responsible being larger than the accounts for which the Applicant was responsible; and that Mr Vare had been with the company for 15 years and the Applicant had been with the company for just under 3 years.

10. There was some criticism that this explanation given by Mr Newnham in his evidence before me, did not appear in his affidavit. I do not accept that this criticism is justified. This explanation was contained in the affidavits of the Second and Third Respondents and the affidavit of Mr Newnham only went to confirm that the adverse action was not taken for a prohibited reason.

Exercise of a Workplace Right

1. There is no doubt that the Applicant had a workplace right to take maternity leave and she exercised that right. There is also no doubt that the dismissal of the Applicant was adverse action. The question is whether the Respondents have proven that the adverse action was not taken for a prohibited reason.

2. Mr Newnham, who was the decision maker, has sworn that he did not make the decision because the Applicant was pregnant.

3. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 the High Court said at paragraph [45]

   “This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”

4. Mr Newnham has given clear and unequivocal evidence as to what his reasons were for making the decisions that he did. Consistent with what the High Court has said, this would be sufficient to discharge the onus.

5. If this were the only issue, the matter would be straightforward. However, there is a very complicating aspect to the decision.

6. Paragraph 8 of the Initiating Application of the Applicant states:-

   “8. The Respondent took adverse action against the Applicant by terminating the Applicant’s employment on 4 November with immediate effect”. (My underlining)

7. It was always part of the pleadings for the Applicant that the date of the termination was an integral part of the case.

8. The submissions for the Respondents, especially those in the reply, indicate that the decision that is being examined by this Court is solely the decision to make the Applicant redundant rather than the decision about when the redundancy would take place. Paragraph 8 of the Originating Application illustrates that both aspects of the decision were to be examined by this Court.

9. It is this latter aspect with which I now deal.

Timing of the Decision

1. The evidence in this case makes it very clear that there was a timeline for the redundancies to be made. There were to be 8 redundancies made nationwide (2 of these in Queensland, including the Applicant) and once it was decided who would be made redundant, there were discussions as to when this would happen.

2. As previously mentioned, the suggestion of the Second Respondent was that the redundancy of the Applicant not be made until February. Mr Newnham was quite scathing of such a suggestion and told the Second Respondent that the redundancy needed to be made much earlier.

3. The decision was made that all redundancies would occur on 12 November 2015. Both Mr Newnham and the Second Respondent said that if the Applicant were to be made redundant on this day, this would mean that she would have had to be brought back from her maternity leave to be told.

4. Neither of them felt that this was in the best interests of the Applicant and that it would be better for this to occur before the Applicant went on maternity leave. Both Mr Newnham and the Second Respondent were blissfully unaware of the provisions of the FW Act in this regard.

Section 84 of the Fair Work Act 2009 (Cth)

1. This section states as follows:

   “84 Return to work guarantee

   On ending unpaid parental leave, an employee is entitled to return to:

   (a) the employee’s pre‑parental leave position; or

   (b) if that position no longer exists—an available position for which the employee is qualified and suited nearest in status and pay to the pre‑parental leave position.”

2. If the redundancy was carried out on 12 November 2015, as was the case with the other 7 redundancies, the Respondent company would have been in breach of the above section. Both the Second Respondent and Mr Newnham seemed genuinely unaware of this when cross-examined before me.

3. In submissions, counsel for the Applicant has argued that I should reject this evidence as being inherently incredible. The submission is that the precept, as contained in s.84, is such an integral part of the industrial relations regime that it is incongruous that a manager at the level of Mr Newnham would not be aware of it.

4. Notwithstanding the force of that submission, I accept the evidence of Mr Newnham in this regard. He was quite open and frank with the Court and there was no mistaking his sincerity.

5. Of course this does cause other questions to be asked.

The Handling of the Redundancy

1. I accept the evidence of Mr Newnham that there was a great rush to have the redundancy occur on 4 November 2015. Because of the “indecent haste” with which this redundancy occurred, the policy of the Respondent company was not observed.

2. It became very obvious that no one from the HR Department of the Respondent company was involved in the redundancy of the Applicant. One suspects that if Mr Newnham had engaged the HR Department, the redundancy could not physically have taken place by 4 November 2015.

3. The email trail shows that Mr Newnham directed the Second Respondent and the Third Respondent to travel to Mt Isa to tell the Applicant of the redundancy (which further underlines the fact that this was not a decision made by either of them).

The Effects of the Redundancy Occurring on 4 November 2015

1. Notwithstanding that I have found that there was a business case for the redundancy of the Applicant, it was a redundancy that should have been made on 12 November 2015. Such a date would have enabled the policy of the Respondent company to have been put into effect. There is no evidence that the policy was not put into effect in respect of the other 7 redundant employees.

2. There are a number of other consequences for the Applicant because of the date of her redundancy was brought forward. This meant that the Applicant has not had the benefit of the safeguards of the redundancy policy of the Respondent company. More importantly, it meant that she could not rely upon the protection of s.84 of the FW Act.

3. These consequences amount to the Respondent company “altering the position of the Applicant to the Applicant’s prejudice” as such is defined in s.342 of the FW Act.

4. The bringing forward of the date of redundancy is adverse action.

The Reason for the Adverse Action

1. Mr Newnham was quite frank about why this adverse action occurred. It occurred because the Applicant was pregnant, had applied (and been granted) maternity leave and therefore was exercising a workplace right.

2. Therefore there has been a breach of s.340 of the FW Act.

3. Mr Newnham was also quite frank in saying that he was cognisant of the pregnancy of the Applicant and did not want to cause the any more stress than was absolutely necessary.

4. I do not find that this decision as to timing was made because Mr Newnham was discriminating against the Applicant; in fact, he was doing his best (as incompetent as it may seem in hindsight) to ensure that the Applicant was treated well.

5. Therefore I do not find that there has been any breach of s.351 of the FW Act.

6. I find that the Applicant was made redundant not because of a prohibited reason but I find that the date of her redundancy was brought forward because of a prohibited reason.

Who is Responsible?

1. I find that the decision was made by Mr Newnham, and Mr Newnham alone. This means that the First Respondent is liable for the consequences of the breach of s.340 of the FW act.

2. I do not find that the Second and Third Respondents are accessorily liable for the decision of Mr Newnham, because Mr Newnham was their superior and he was the person who directed the Second and Third Respondents.

3. I declare that the Respondent company has breached s.340 of the FW Act by bringing forward the date of redundancy of the Applicant from 12 November 2015 to 4 November 2015.

Consequences of this Decision

1. This ruling means I will have to assess any damages due to the Applicant because of the actions of the Respondent company. I will also have to assess whether I ought order pecuniary penalties against the Respondent company.

2. I will adjourn this matter to a date to be fixed for submissions as to the assessment of damages and pecuniary penalty.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 9 August 2017