Ryan v Albutt

[2004] FMCA 568

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RYAN v ALBUTT [2004] FMCA 568

HUMAN RIGHTS – Sex discrimination – grounds of pregnancy – where it was alleged that the applicant was dismissed from her employment due to her pregnancy – credibility of parties and witnesses – construction of the factual matrix – whether the applicant repudiated her own employment or whether the respondent contravened the Sex Discrimination Act 1984 by making comments and statements of a discriminatory nature in relation to the applicant’s pregnancy and thus amounted to unlawful discrimination.

DAMAGES – Economic loss.

Human Rights Equal Opportunity Commission Act 1986, s.46P
Sex Discrimination Act 1984, s.14
Human Rights Amended Act (Number 1) 1999, s.12

Applicant: CORINNE RYAN

Respondent: NADINE ALBUTT TRADING AS ALBUTT EXPRESS HOLDINGS PROPRIETARY LIMITED

File No: BZ73 of 2001

Delivered on: 12 October 2004

Delivered at: Brisbane

Hearing date: 22 April 2002

Judgment of: Rimmer FM

REPRESENTATION

Counsel for the Applicant: Mr Harris

Solicitors for the Applicant: Legal Aid Queensland

Counsel for the Respondent: Mr Hanlon

ORDERS

1. The application filed 10 May 2000 and transferred to the Federal Magistrates Court is hereby dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BZ73 of 2001

CORINNE RYAN

Applicant

And

NADINE ALBUTT trading as ALBUTT EXPRESS HOLDINGS PROPRIETARY LIMITED

Respondent

REASONS FOR JUDGMENT

The application

1. This is an application filed by the application pursuant to s.46P(o) of the Human Rights & Equal Opportunity Commission Act 1986 (Commonwealth) on the grounds of unlawful discrimination in contravention of s.14 of the Sex Discrimination Act 1984.

Background

1. A complaint was lodged by the applicant with the Human Rights and Equal Opportunities Commission (HREOC) on 10 May 2000 in the Federal Court of Australia.  A notice of termination had issued with respect to the complaint pursuant to s.12 of the Human Rights Amendment Act (Number 1) 1999 Commonwealth and such notice was dated 13 April 2000.  The complaint relates to allegations by the applicant that she is discriminated against on the grounds of her sex and/or on the grounds of her pregnancy in the course of and in the termination of her employment pursuant to the Sex Discrimination Act 1984 (Commonwealth) SDA.

2. Ms Albutt was the employer and owner of the business in which the applicant was previously employed, Albutt Express Holdings. By correspondence dated 26 May 1999 HREOC advised Ms Albutt of the receipt of the complaint and of the fact that Ms Ryan suggested that Ms Albutt had contravened the provisions of ss.7 and 14 of the Sex Discrimination Act on the basis of her pregnancy in her employment and/or on the ground of her sex and that she was dismissed by the respondent in contravention of SDA.

3. The respondent was requested by HREOC to respond to the complaint and provide information relating to certain specific matters and in particular as follows: whether Albutt Express Holdings is a company, a partnership, or whether it is owned by one person:

   Please describe your relationship with the business that is whether you are a director, managing director, partner or sole proprietor.

4. By correspondence dated 30 June 1999 the respondent through her then solicitors responded to HREOC as follows:

   Albutt Express Holdings is a business owned by one person being Nadine Albutt.  Ms Albutt is the sole proprietor of the business.

5. The matter was transferred to the Federal Magistrates Court by the Federal Court of Australia on 19 February 2001.  It was initially allocated for hearing on 18 September 2001 but was adjourned as the applicant was unable to attend due to the collapse of Ansett Airlines that day and her booking on that airline of a flight from Tasmania to Brisbane.

6. The applicant relies on the following documents to which I will have regard to:

   a)application filed in the Federal Court of Australia on 10 May 2000;

   b)order of the Federal Court on 19 February 2001;

   c)affidavit of Corinne Ryan filed 13 December 2001; and

   d)affidavit of Robyn Mavis Ryan filed on 10 December 2001.

7. The respondent relies on the following documents to which I will have regard to:

   a)affidavit of Nadine Albutt filed on 20 March 2002;

8. At the commencement of these proceedings I made rulings with respect to the affidavit evidence of Robyn Mavis Ryan and I have taken into account those rulings in considering her evidence.  The applicant and Robyn Ryan gave evidence and were cross-examined.  The respondent gave evidence and was cross-examined.

The applicant's case

1. The applicant was employed by the respondent as a casual sales representative selling mobile phones for about three months.  Prior to the applicant informing the respondent she was pregnant, the applicant indicated that she was nauseous one evening at home, but chose to ignore it hoping it would go away.  The applicant claims that when she informed the respondent she became nauseous her reply was:

   Oh, no you could be pregnant.  You are not pregnant are you?

2. The applicant perceived that the respondent's comments as negative but because of the excellent relationship between the parties she did not think it was meant in a negative way. 

3. On 7 and 8 May 1998, the applicant began to realise that the respondent was not happy at the possibility of the applicant being pregnant.  The applicant refers to an occasion where the respondent made a statement:

   What would you do if you were pregnant?  You wouldn't have the baby would you?  You are too young.  You should think about your career instead.

4. On 11 May 1999 the applicant's medical practitioner confirmed the applicant was pregnant.  The applicant informed the respondent of her pregnancy and it is alleged the respondent asked her:

   What she was going to do about it?

   The applicant says that she sought clarification of what this statement meant and the respondent said:

   Well you don't want a baby now, do you?  You are too young.  You should be thinking about your job.  My sister had her first baby too young and she always regretted it.  She should have had an abortion and not told Mum and Dad, because once she told them they made her have the baby and get married.  So don't tell your parents yet or else they'll probably expect you to marry Danny and have the baby.

5. The applicant says that she indicated to the respondent that she did not wish to have an abortion.  The applicant claims the respondent shared the fact that she herself had a number of abortions and that there was not really much to it.  It was an "in and out same day procedure" and it was not that bad.  She says that the respondent informed the applicant that if she were in her position she would at least consider it more before she told her parents.

6. The following day the applicant says that she told the respondent that she had always wanted children and although this was not a planned pregnancy, she and her partner, Danny were very excited and looked forward to having their first child.

7. She alleges that the respondent replied by telling her that all pregnant women get fat and that she would have to be careful, and that all pregnant women go absolutely crazy because their hormones change.  It is her evidence that the respondent then used an example of when she had a woman previously work for her and that she was really good, but she fell pregnant and from then on she just went crazy:

   She used to ring her up on the mobile crying her eyes out telling me she could not find her way and that she was lost.

8. Following this conversation the applicant says that she became quite upset that the respondent had viewed everything about pregnancy in such a negative manner.  Shortly thereafter the applicant became worried about her position at the company and claims that the respondent informed her in her honest opinion that women do not belong in the workforce.  She later in her evidence, amended this statement to say that the respondent said that pregnant women do not belong in the workplace.

9. It was around this time as alleged by the applicant that the respondent started to tell her that she was not happy with her performance and that the respondent was having to do most of her work because of her pregnancy.  She alleges that the respondent told her:

   Well, I'll probably end up doing most of your jobs because you can't do them.

   She says that she:

   What do you mean Nadine?  I can still do everything I'm doing now.

   And the respondent replied:

   You won't be able to do some things like carry the signs in from the footpath and go out on the road.

   which was incidental to her job description.

   And the applicant then asked:

   Why not?

   And the respondent replied:

   I don't want you ringing me up crying because you can't find your way or having an accident because you were thinking about something else.

10. The applicant claimed that it was very hard to work with the respondent after hearing these statements because it was a very small work place.  She worked in a two desk office alongside the respondent.  She claims that the respondent generally talked about the likelihood of becoming pregnant and indicated it was the worst thing that could possibly ever happen to her.  The applicant claims that at the time these comments were made, she was eight weeks pregnant.  The applicant claims that this negativity, instituted by the respondent, continued for the next two days. 

11. The applicant claimed that the respondent, on a regular basis, made reference to the whole "blond hair blue eyes nice figure stereo type women".  The applicant claimed she would make comments about how:

    This was the reason male clients wanted to deal with me in particular.

    and on a couple of occasions some of those male clients would show up unexpectedly to the office to introduce their other male associates to her.

12. The applicant claims that the respondent indicated that when those men would leave she would be informed that:

    The only reason they had come all the way in was to show the mates what the Vodaphone girl looked like and to cream themselves over there.

13. The applicant claims the respondent made other comments directed to her to the effect that:

    If the business was quiet she would put me out in the front of the shop in a G-string to attract customers.

14. The applicant felt uncomfortable with that concept and, in particular, felt humiliated that the respondent would joke about it in front of other customers or people that the business dealt with on a regular basis through advertising.

15. The applicant claims that upon informing the respondent of her pregnancy, the respondent would turn everything into a negative and made continual reference about how the pregnancy would affect her looks and the way her customers would perceive her. 

16. On one occasion the applicant recalls that she became very upset because the respondent made it so obvious as to how she felt about the pregnancy and it really hurt her feelings and embarrassed her in front of a customer and a newspaper advertiser, both males.  At this time they were both in the shop with the respondent and in front of her the applicant told them she was pregnant.  At this stage the respondent proceeded to laugh and said:

    Well, I guess we won't be able to put Corinne out the front in a G-string to attract customers any more.  Imagine that, a pregnant women in a G-string.

    The applicant found this an extremely embarrassing and degrading situation and felt very hurt and humiliated from that experience.

17. The applicant did not call any of the business customers or others she alleges were present when this conversation occurred to corroborate her evidence about these matters.

18. The applicant says that the following day the applicant's mother told her about a telephone conversation she had with the respondent on

    
    

    13 May 1998.  The applicant claimed she decided that she needed to know for sure what was going to happen to her job.  She could not stand it any more and was made to feel as though she had done something wrong and had done something she should not have done.  She felt that this was making her miserable and her work environment impossible to bear.

19. Prior to her leaving to go home on Thursday, 14 May 1998 she claims that at approximately 7.00pm on that evening that she sat down with the respondent and asked her to be honest with her and to tell her straight as to whether or not she was going to lose her job because she had fallen pregnant.  She claims the respondent said:

    To be honest, I'm really not sure at this stage.  I'm going to have to think about it and talk it over with Mark, her partner, and you know how he can be.  I really don't think he's going to like it when I tell him.

20. The applicant indicated to the respondent that she had full intentions to work through to full term pregnancy and that she was not going to have any problem continuing to fill her work requirements.  She says that however this appeared to make no difference to the respondent.

21. The applicant claimed that she had volunteered earlier in that week to go in on the Saturday, the 16th of May, and assist the respondent.  She says however that she eventually decided not to go into work on that day because of what had been happening at work on the preceding 5 days she discovered that she was pregnant and felt that she did not deserve the kind of treatment, and was not wanting to endure any more of it on her day off.

22. The applicant claimed that she could not bear what was happening and what she had to listen to on a daily basis.  She was trying to deal with the sudden shock of her pregnancy on the one hand, feeling excited and looking forward to it; but on the other hand she was made to feel as if she had done something bad or wrong.  Consequently, and all of a sudden, her boss with whom she had an extremely good relationship was telling her that she was probably going to lose her job because her partner had decided to have a baby.

23. On Saturday, the 16th of May, the applicant telephoned the respondent and indicated to her that she was not going to come into work.  She said that she made this call at around 8.30am.  She also indicated to the respondent that she was not feeling okay about what had been taking place in the work place.  She indicated that she was feeling extremely uncomfortable with the way the respondent was talking about her pregnancy in an extremely negative manner, and in particular in front of other people, when in actual fact, it was very happy and exciting news about having her first baby.

24. According to the applicant, the respondent became very defensive and said:

    Do you want to leave then?

    The applicant said:

    No, I just don't like the way you were being so negative about it all the time.  I'm happy about it and you are making it difficult for me.  From the way you talk about it all the time it's like you have this huge problem with pregnancy.

    The applicant then claims the respondent said:

    No, Corinne, you are the one with the problem.  You are the one that's pregnant.

    This confirmed to the applicant that the respondent did have a problem with her pregnancy.  The applicant asked the respondent:

    Well, what do you suppose I do then?

    The respondent told her:

    I think you'd better come in, pick up your stuff and return the post box key because this just isn't going to work.

25. The applicant became very upset and did not want to see the respondent again and therefore arranged for her partner, Danny, to go into the business and collect her belongings on the following Monday so she would not have to speak to the respondent.  Her partner went in to collect her things.  She then gives hearsay evidence as to an alleged conversation between the respondent and her partner which I have disregarded as it is denied by the respondent and not the subject of original evidence by her then partner

26. The applicant claims that the respondent had promised that as a term of her employment that she would be given a phone allowance each month for business calls that she made from the mobile phone.  The applicant claims that during the three months that she worked there, the respondent never paid any money towards those calls.

27. In the applicant's affidavit filed 18 April 2002 in response to the respondent's affidavit sworn 20 March 2002, the applicant disputes the work hours agreed between the parties in that she says that the agreement with the respondent regarding working times was initially that she started work at 9 a.m. and worked until 1 p.m.  However she said that after six weeks with working with the respondent the agreement was changed so that she could start at 8.30 a.m. and continue until 1 p.m.  The nature of this agreement was that the applicant worked these hours in the office and that in the afternoon she went out on the road to attend to clients and usually her work in the afternoon continued until 6 pm or thereabouts.

28. The respondent claims that the applicant's nauseous feelings started right from her first day at work.  The applicant disputes this.  She states that in fact when she started working during the last week of February 1998 she had only experienced nausea on or about 5 or 6 May 1998, some two months after she had commenced work at the business.  She denied that ever informing the respondent that she had a family disease of any kind.

29. She does, however, recall a conversation with the respondent on or about 5 or 6 May 1998 in which the respondent expressed her concern that the nausea related to the fact that she was pregnant.  She recalled saying to the respondent that he nausea problem had nothing to do with her pregnancy but may be the result of an over production of bile in her system and that her mother had experienced such a problem. 

30. The respondent claims that the applicant constantly complained about feeling sick.  The applicant says that the respondent constantly asked her, regarding her nausea, and provided her with feedback but did not constantly complain of a nauseous feeling.  She also says that:

    I did not constantly go upstairs to the ladies toilets.

31. The applicant says that in fact she only used the toilet at the workplace on three occasions in the entire three month period that she worked there and, further, contrary to the respondent's assertion she never once vomited during the entire term of her pregnancy.  The applicant claims that her nausea first became evident on or about 5 or 6 May 1998, some two months after she commenced work.  She attended the doctor referred to by the respondent from 11 May 1998.

32. The applicant says that she had a positive result from her pregnancy test that she conducted at home on 10 May 1998 and that the doctor, who she attended on 11 May 1998, confirmed her pregnancy status.  She claimed that she did not need to obtain a blood test to confirm the pregnancy as the respondent suggests.  She did, however, obtain a referral for an ultrasound.

33. The applicant claimed that upon return from the appointment with her doctor she informed the respondent that she was definitely pregnant.  She claimed that the respondent's response was definitely one of emotional support at that stage but the applicant denied the respondent ever gave her a big comforting hug.  She was never hugged or had been hugged by the respondent at any time during the course of her employment. 

34. She denies the respondent spends the rest of that afternoon making suggestions about how the new baby and her could be accommodated.  She claims in fact the respondent spent some of that afternoon asking her questions about whether she was going to have the baby or not and she denied that the respondent ever offered her accommodation with the baby at her home.

35. The applicant says that she enjoyed an open communication with the respondent throughout the time that she worked there and that she did discuss with the respondent her relationship with her boyfriend, Danny, and his parents.  However, the applicant disputes any assertion made by the respondent that she informed the respondent that she was having some difficulties with Danny.  The respondent claims that the applicant indicated that she was hoping to move out on her own and end the relationship with Danny.  In fact the applicant says that he had already moved back to his parents prior to commencing employment with the respondent.

1. The applicant claimed that the relationship between the respondent was by frank and open communication but it was a mutual relationship and not one characterised by her needing a confidante. 

The respondent's case

1. The respondent filed an affidavit 20 March 2002.  She claims that she did not dismiss the applicant from her employment, that the applicant did not return to work of her own accord and therefore did not discriminate against the applicant at any time in regards to her pregnancy or for any other reason. 

2. She claims that in the 5 or so days between when the applicant informed her she was pregnant on the 11 May and when she had a discussion with her about her performance when she failed to come into work as she had indicated that she would and consequently then her last day of employment with her on the 16 May, she was very supportive of the applicant.  She says that the only conversation they had which lead to disagreement between them was as a result of her non attendance at work and that the applicant’s response was to leave her employment.

3. She claims that the applicant's nauseous feelings started right from her first day at work.  According to her she urged the applicant to go to the doctor to ensure that she hadn't contracted the flu or a virus.  The applicant informed her that it was not a flu or a virus, that she had a family gastric disease that was in relation to the stomach.  She says the applicant assured her that it was treatable and would not cause any problems with her working hours.  The respondent denies any allegation put by the applicant that she was negative towards the applicant during her time and, however, expressed a concern for her well being and felt confused at her lack of treating the nausea problem. 

4. She indicated that every single day that the applicant came to work the problem worsened and continued and the applicant would constantly complain about feeling sick and would go upstairs to the ladies toilet and would return some time later.  Once again the respondent alleges that she urged the applicant to seek medical treatment as her nausea worsened and turned to vomiting. 

5. According to the respondent three weeks after the applicant commenced employment with the business her young niece, Ms Harrison, attended the shop after school complaining of similar discomfort.  The respondent claimed that it was at this time that she insisted that both the applicant and her niece go to the doctor for a check-up.  She claims that she sent them together to see her personal doctor, Dr Zeck Mohebe.

6. According to the respondent the applicant returned from the doctor and she explained that she could be pregnant.  She explained to the respondent that she had gone to the doctor for a urine test and to confirm some blood tests.  The respondent says her instant response to the applicant's news was by giving her a big comforting hug and by reassuring her of her emotional support.

7. She says the applicant was positively overwhelmed by what the doctor had said and she seemed confused.  The respondent says that she spent the rest of the afternoon chatting with her and making suggestions of how she could be accommodated for the new baby.  In particular, the respondent says one of the suggestions she made was that we could use the storeroom closest to our desk for a baby room.  She also offered her home to the applicant and was comfortable and would accommodate for both mother and baby.  She says that she discussed with the applicant the fact that she could change her working conditions to meet her needs as she required.  In her oral evidence under cross-examination the applicant confirmed that these sort of discussions did take place between she and the respondent but only before she was pregnant and certainly not after she had informed the respondent of her pregnancy[1]

   [1] See page paragraph 25 of the Transcript of proceedings

8. According to the respondent the applicant was very concerned about how her boyfriend's parents would react to the news of her pregnancy, as his family did not approve of interracial mixing.  The applicant had expressed to the respondent on more than one occasion of the difficulties she was experiencing with her boyfriend and his family.  The applicant confirmed under cross-examination that she indeed told the respondent that she was concerned as to the reaction of her boyfriend’s parents to her pregnancy.

9. According to the respondent the applicant told her that she was hoping to move out on her own and end the relationship with the boyfriend.  She says these conversations took place in confidence and prior to the applicant finding out that she was positively pregnant.  The applicant says that this conversation did not take place and that she was already living with her mother at that time.[2]  The respondent says that the applicant talked a great deal about her fears, concerns and hopes and dreams at this time and that as they were close friends and she was older, she gave her lots of advice about all of these matters.  That is certainly confirmed as true by the applicant in her evidence in chief when she confirmed that she and the respondent openly and freely discussed all of these matters.

   [2] see paragraph 15 at page 27 of the transcript of the proceedings

10. According to the respondent it was at this particular time the applicant inquired about pregnancy termination and asked her about her experiences.  The respondent then advised the applicant that she had a termination that left her unable to have children.  She also advised the applicant that it was a very personal decision that both her partner and her needed to make.  She says that they decided, for their own reasons at the time, to terminate the pregnancy and to this day they still regret it.  The applicant agreed in her evidence at the hearing that this was in fact true that this discussion had taken place between she and the respondent.

11. The respondent says that she also explained to the applicant of the steps involved in the procedure and that the outcome might not necessarily be the same for her.  Again under cross-examination the applicant confirmed that this was correct.

12. According to the respondent she did not at any time display to the applicant that she was not happy with her pregnancy.  She says that she did everything to best of her capabilities to make her feel welcome and supported.  She knew that the applicant was a very mature and capable woman who felt could easily manage both motherhood and career.

13. The applicant however does not accept this and says that the respondent became very negative about her pregnancy almost immediately and would refer to it constantly in a negative way.  She admitted under cross-examination that she was a mature young woman who up to the time of her pregnancy being confirmed enjoyed a good and close relationship with the respondent.  She agreed that she had never asked the respondent to keep her negative opinions and statements about her pregnancy to herself or to stop discussing this topic with her in the work place.  She agreed that she had not told the respondent that their discussions were making her feel distressed and uncomfortable.

14. The respondent says that she explained to the applicant the nature of the mobile phone industry and that it allowed for agents to work from a home office with sales production over the phone.  She indicated that she would change her working conditions to meet with the applicant's needs as she required.  The applicant says that such a conversation did take place but only before she was pregnant and not after her pregnancy was confirmed. [3]

    [3] See paragraph 25 of the transcript of proceedings at pages 25 and 26.

15. The applicant had another appointment with her doctor to find out the results of her pregnancy test.  Dr Mohebe informed the applicant that her pregnancy was positive.  The respondent says that she continued to be supportive and positive in relation to the applicant's pregnancy and tried very hard to assist with all her requirements. 

16. According to the respondent when her and the applicant engaged in discussions about the respondent's sister's situation, in that her sister regretted having children, she felt that it caused damage to her career but she had a gorgeous little girl instead. 

17. According to the respondent the applicant showed strong interest in having her pregnancy terminated and she tried her best to advise her of all options available to her including the possibility of having the baby adopted.  The applicant agrees in her oral evidence that she had discussions with the respondent about all of these options.  The respondent says that she was aware the applicant shared a special relationship with her mother, Robyn, and that the applicant would not have any difficulty speaking to her mother about those issues.

18. She says that the applicant informed her that she had discussed all the options with her mother and that her mother was very loving and supportive to her needs.  She says that the applicant's mother had offered to her that she could move back home so that she could be supported during her pregnancy and offered to have her bedroom floor carpeted so that it would be more comfortable for her.

19. The applicant denies that this conversation ever took place.  In her oral evidence she was clear that it would not have taken place as she was already living at home with her mother at the relevant time.  Her mother was cross-examined about this and she stated clearly that her daughter was not living with her when she ceased employment with Nadine Albutt.  She said that at that time she was living with a fellow called Danny.  She said that her daughter came to live with her shortly after she ceased employment with the respondent.  She thought that it was within a few weeks of that time.[4]

    [4] See paragraphs 5 and 10 of the transcript at page 74

20. The respondent is very clear in her evidence that this conversation did take place and says further that the applicant expressed to her that she was extremely pleased with her mother's offer considering her position and that she was also of the view that her living with her parents would assist them with their financial well being as her mother had been made bankrupt at this time. Mrs Ryan in her oral evidence confirmed the fact that she had been bankrupt at this time.

21. The respondent further states that the applicant told her that she had never planned on having children as she wanted to be a career woman.  The respondent say that she felt at that time that the applicant could manage both motherhood and career and further that she could change her working conditions accordingly.  She denies that she ever made the statement alleged by the applicant, that all pregnant women get fat and that they go absolutely crazy because their hormones change.  She claims that not all pregnant women get fat and she is well aware that each woman and each pregnancy is different and individual. 

22. The respondent claims that the applicant was a very attractive young lady and that it was the applicant herself who was always concerned as to the effects of bearing a child would have on her figure.  The applicant informed the respondent that she was keen to obtain a second job working as a stripper to earn extra income after hours and that her pregnancy would not allow for that.  The respondent denies that she ever informed the applicant that she had previously terminated a female employees employment due to her pregnancy.  She stated that she ever had only one previous employee of the business who was a female and that this employee had resigned because it was too far for her to travel to work given that she lived on the north side of Brisbane. The respondent states that this alleged pregnant former employee which the applicant refers to in paragraph 8 of her statement, never existed.  There is no evidence before me that the applicant had undertaken any process of discovery or interrogatories to establish the identity of this former employee from the respondent so that she could given evidence to support her contention. As it would raise an inference of prior similar fact it is surprising that she failed to take such steps which are available to her.

23. The respondent asserts that the applicant herself had difficulty one day with an appointment in relation to the client, Dennis Mullins Architects, situated at Taringa.  She says this was an area that the applicant was not familiar with and she unfortunately got lost on her way.  She said there was a street directory in her car but the applicant could not find her way to work out where she was.  The applicant called from her mobile to the office for assistance on road directions.

24. The respondent says she reassured the applicant that these things happen and that it was okay.  The applicant eventually found the client's premises but was so upset that she dropped the phones to the front desk and then returned to work straight away.  The respondent indicated that she had to go out to the client's premises on the next day to explain the phones and plans to him and that this was the applicant's responsibility as she was paid commission on the job.  The respondent asserts that she was considerate of the applicants circumstances and did not raise any issue about this with her.

25. The respondent asserts that there was another incident in regards to the applicant having difficulties while out on the road.  She indicates that the applicant had another sale to complete and when the applicant left the site she reversed the car into the branches of a low tree and that the antennae was ripped off the socket and the applicant drove the vehicle back to the office without noticing and that it was not until she arrived back at the office that she noticed and brought it to the respondent's attention.  Again, according to the respondent, she assured the applicant that it was not so bad and that it could be easily replaced and did not take any issue with it.  The applicant denies that this ever occurred at all.

26. The respondent alleges that the applicant had trouble getting to and from work from about the second week of her employment.  As part of her employment agreement the applicant was supposed to have a motor vehicle and mobile phone.  The applicant was 21 years of age and had an open licence and it was the respondent's decision at the time to allow her to use her motor vehicle until such time as she could obtain another vehicle, which she did.  The applicant used a car that was jointly owned by her and her father and her father was not employed at the time she started to work for her.  Subsequently the father obtained a security job and then consequently required the car more frequently.  This, according to the respondent, made it difficult for the applicant to get to and from work and she relied on her family for lifts.

27. According to the respondent, it was at this particular time that the applicant's ability to perform her job became affected by her lack of attendance at work.  The applicant's agreement was for an 8.30 am start, however she would constantly arrive two or three hours late.  On some days, according to the respondent, the applicant would not attend at all.  The respondent says that the applicant had her home, mobile and office numbers and did not on one single occasion call to offer an explanation for her absence.

28. The respondent denies the applicant's allegations that the respondent was negative about the applicant's pregnancy.  The respondent sees the statement:

    Women don't belong in the work force.

    as ridiculous, seeing that she is a woman and she has been nearly continuous in the work place and has employed mostly women during the time she has conducted business.  She recalls that there was only one occasion that she had to do the applicant's work as she was unable to complete the job herself.  She claims that she never told the applicant that she could not bring signs in off the footpath or that she could not go out on the road.  She indicated that she offered the applicant to change her job duties to suit her needs by working from a home office.  She says the signs were brought in every night around

    
    

    6 pm and she was usually the one that was on her own at that time.

29. The respondent denies the allegations set out in paragraph 13 and previously in paragraph 10 of the applicant's statement, that she was negative towards her pregnancy.  The respondent, once again, asserts that she has never been negative towards the applicant's pregnancy, nor has she ever been negative about pregnancy.  She never spoke about the applicant's pregnancy at any other time than she wanted to discuss it and she never gained any impression from the applicant that there discussions about this topic were unwelcome to her.

30. She says that she never made any of the comments that the applicant has alleged that she made in a discriminatory manner as alleged by the applicant in any of her statement or affidavits and nor did she have any conversation with the applicant’s mother about it in the manner that she alleges that she did.

31. In response to the applicant's assertion that the respondent was concerned about her look, the respondent takes offence with it and then indicated that the applicant had a tendency to wear extremely short skirts with no stockings to cover her legs.  She had asked the applicant on one occasion to wear stockings, especially when seeing the business and corporate clients as she wanted the business to project a respectful and professional image.

32. As indicated earlier, the applicant asserted that the respondent stereotyped her.  The respondent says she never mentioned these comments, nor did she suggest that her business depended on how she looked for our[sic] clients.  She said that they had:

    both male and female clients and the service we provided was the same to both sexes.

    She says that Mr Keith Boiler from Leighton Constructions dropped by to pick up some accessories for his phone that the applicant forgot to deliver the previous day:

    Mr Boiler was happy with the service that he received and referred a new client to our store.  The new client was a work associate and I felt that the applicant might have perceived the situation incorrectly herself.

33. The respondent denies the terminology used the applicant to cream themselves over her.  She said that such a comment would be offensive to her as a woman. The respondent claims that the business clients came to the store to purchase mobile phones and accessories and they did not come to the store to see the applicant.

34. According to the respondent, the business was never quiet and once again the applicant where she asserts this, makes a statement that is untrue.  She says that she never suggested to put the applicant out the front of the shop in a G-string to attract customers.  She says that she spent a lot of money on advertising through radio and the local papers and most of the time they could not keep up with the demand.

35. The respondent claimed that she never hurt or embarrassed the applicant at any time, nor did she discuss her pregnancy with anyone else other than with the applicant herself, nor did she embarrass her, degrade or humiliate her at any time. 

36. In relation to the telephone conversation that took place between the applicant's mother and the respondent, the respondent says that Mrs Ryan did call her to discuss the applicant's pregnancy and the work situation and she advised the applicant's mother that she would not discuss Ms Ryan with her mother and that any discussion would be between her and Ms Ryan.  She says that the applicant's mother then cursed her over the phone and then slammed the phone down in her ear. It is her contention that this conversation was only a short one

37. In relation to paragraph 23 of the applicant's statement, in relation to the conversation that allegedly took place in the office did not ever take place. She says that the only conversation took place between she and the applicant was by telephone and this was on Friday night after the applicant had failed to attend work that day. She says that the applicant was in the office with her the day of the evening when the only conversation about this took place as the applicant had not come to work that day. According to the respondent, she and the applicant did have a discussion by telephone on that Friday as the applicant had failed to attend work and she was concerned to know what was happening as the applicant also failed to call to advise of her. Further according to the respondent, it was she who called the applicant around 7 –7.30 pm and asked her what was going on and inquired of her as to what had happened and asked her when she would be returning to work. 

1. According to the respondent, the applicant informed her that her morning sickness made her late so that she could not come to work.   The respondent says that she then asked the applicant why she could not call her to offer an explanation and advise her that she would not be at work for the day.  She told the applicant that she expected her presence at work each day by 8.30 am sharp and that in the event that she was going to be late or not attend that she would appreciate a call.

2. It is her evidence that at the time she spoke to the applicant, she was in the company of her mother and this became obvious to her when Mrs Robyn Ryan then telephoned her back after she had ended her conversation with the applicant.

3. She indicated to the applicant that if she failed to attend work again or did not call, she would assume that she no longer required her job and that she would have to replace her.  The respondent also says that she at no time ever docked the applicant's pay for her lack of attendance.

4. The respondent in relation to the applicant's assertions in paragraph 22 of the statement that the respondent was to discuss the applicant's position and conditions with her spouse, Mark, the respondent alleges that at no time were the applicant's work conditions discussed with her partner. 

5. In relation to paragraph 24 of the applicant's statement, the respondent denies making the statement that:

   I would have to think about keeping her in employment.

6. The respondent indicated that at no time did she ever make such a comment.  She has spoken to the applicant on that one occasion on the telephone with regard to her lack of attendance and the possibility of her having to be replaced if she failed to attend her job as set out above and at no other time.  The respondent says that as the applicant was not a full time employee and was she was employed on a casual basis, she therefore did not have to give her any warning.  However she says that she did give her the opportunity to return and attend work, but it was the applicant's choice not to return. She says that after the conversation on the Thursday evening the applicant did not come to work on the Friday. She received a telephone call from her on Saturday the 16 May when she made it clear that she would not be returning to work.

7. The respondent alleges that the applicant never volunteered to work on a Saturday to make up for all her lost time. 

8. In relation to the telephone conversation that took place on 16 May 1998, the respondent claimed that it was the applicant who contacted her to further offer an explanation as to her whereabouts on the Friday and also to offer explanations as to why she had not called to say that she would not attend her work.  She reminded the applicant about a conversation on the Thursday night and that:

   She had made a decision as far as I was concerned.

9. She then gave the applicant an opportunity to return after their conversation on the Thursday evening, but she failed to come to work on the Friday and she did not call to explain her absence.  She felt that a phone call at 11 am on the Saturday was not acceptable and it was as a result of this that she requested the applicant return her keys, stock and paperwork to the shop which was done by her partner on the following Monday.  She states that at that time it was the applicant who then raised the fact that her morning sickness had been the cause of her non-attendance at work, which is a valid reason.  However, the respondent said that the reason she had not attended work was not the issue for her it was that she had not called to advise her of her non attendance at work that was the performance issue.  The respondent alleges that the applicant got upset on the phone and started crying. 

10. The respondent states that she did not terminate the applicants employment either on Thursday evening in the telephone call nor on the Saturday morning in that telephone call but she admits that when the applicant did not return to work on the Friday and did not call her that she did ask her in this conversation to return her keys, stock and any outstanding paperwork to her on the following Monday. She said that the applicants actions clearly indicated that she did not intend to come back to work  According to the respondent, the applicant was upset and frustrated in this phone call on Saturday 16 may and that she terminated the call by hanging the phone up in her ear.

The Law

1. The Human Rights and Equal Opportunity Commission Act was amended by the Human Rights Legislation Amendment Act Number 1 (1999) Commonwealth.  The amendments came into force on 13 April 2000.  They make provision for proceedings in the Federal Court and the Federal Magistrates Court of Australia in respect of unlawful discrimination in contravention of inter alia the Sex Discrimination Act. Pursuant to the new s.46P(o) a complainant alleging unlawful discrimination in contravention of the Sex Discrimination Act can apply to the Federal Court, or to this Court if:

   a)the complaint has been terminated by the President of the Human Rights and Equal Opportunity Commission pursuant to s.46P(e) or 46P(h); and

   b)

   the President has given a notice to any person under

   
   

   sub-s.46P(h)(ii) in relation to the termination.

2. The preconditions for making the application have been satisfied. The application was initially made to the Federal Court but the matter has been transferred by consent to the Federal Magistrates Court pursuant to s.32A(b) of the Federal Court of Australia Act 1976. 

3. Section 46P(o) of the Human Rights and Equal Opportunity Commission Act goes on to provide that if the Court is satisfied that there has been unlawful discrimination by any respondent, it may make various orders including an order for compensation. 

4. In 1998 the applicant was employed by the respondent as a casual sales representative selling mobile phones.  When in May 1998 she discovered that she was pregnant, she contends that she was discriminated against by the respondent on the grounds of her pregnancy and/or on the ground of her sex and that she was dismissed by the respondent in contravention of the Sex Discrimination Act.

5. Section 14 of the Sex Discrimination Act makes it unlawful in certain circumstances for an employer to discriminate against a person on the ground of the person's pregnancy. Section 7 defines what constitutes discrimination on the ground of pregnancy (in addition s 14 also makes it unlawful for an employee to discriminate against a person on the ground of the person's sex and s 5 defines what constitutes such discrimination).

6. The applicant seeks an order for compensation.  The issue of determination is whether a complaint of unlawful discrimination in contravention of the Sex Discrimination Act 1984 is made out on the evidence. It is submitted if the applicant's evidence is accepted by the Court then it is clear that the respondent unlawfully discriminated against her in the contravention of s 14 of the Sex Discrimination Act.

7. The determination of the matter will depend on an assessment of the credibility and reliability of the witnesses and questions of fact. 

Relevant Provisions of the Sex Discrimination Act 1984

1. For the purposes of this Act a person (in this sub-section referred to as "the discriminator") discriminates against another person (in this sub-section referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if by reason of:

   a)the sex of the aggrieved person;

   b)a characteristic that ascertains generally to persons of the sex of the aggrieved person; or

   c)a characteristic that is generally imputed to persons of the sex of the aggrieved person;

   the discriminator treats the aggrieved person less favourably than in circumstances of the same - or are not materially different the discriminator treats or would treat a person of the opposite sex. 

   For the purposes of this Act, a person, the discriminator, discriminates against another person, the aggrieved person, on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose a condition requiring a practise that has or is likely to have the effect of disadvantaging persons of the same sex of the aggrieved person. This section has effect subject to s 7B and 7D.

Section 7 Discrimination on the Ground of Pregnancy or Potential Pregnancy

1. For the purposes of this Act a person, a discriminator, discriminates a woman, the aggrieved woman, on the ground of the aggrieved woman's pregnancy or potential pregnancy if because of:

   a)the aggrieved woman's pregnancy or potential pregnancy; or

   b)a characteristic that pertains generally to women who are pregnant or potentially pregnant; or

   c)a characteristic that is generally imputed to woman who are pregnant or potentially pregnant.

   the discriminator treats the aggrieved woman less favourably than in circumstances that are the same or are not materially different the discriminator treats or would treat someone who is not pregnant or potentially pregnant.

   For the purpose of this Act, a person, the discriminator, discriminates against a woman, the aggrieved woman, on the grounds of the aggrieved woman's pregnancy or potential pregnancy if the discriminator imposes or proposes to impose a condition required or a practise that has or is likely to have the effect of disadvantaging women who are also pregnant or potentially pregnant. This section has effect subject to s 7B and 7D.

Section 7B Indirect Discrimination Reasonableness Test

1. A person does not discriminate against another person by imposing or proposing to impose a condition required or a practise that has or is likely to have the disadvantage and effect mentioned in sub-s 5(2) or 7(2) of the condition requirement or practises reasonable in the circumstances.

2. The matter to be taken into account in deciding whether a condition, a requirement or practise is reasonable in the circumstances include:

   a)the nature and extent of the disadvantage resulting from the imposition or proposed imposition of the condition, requirement or practise; and

   b)the feasibility of overcoming or mitigating the disadvantage; and

   c)whether the disadvantage is proportionate to the result sought by the person who imposes or proposes to impose a condition requirement or practise.

Assessment of Damages

1. The applicant in this case seeks compensation for financial expense she was put to and for the hurt and humiliation she suffered and experienced as a result of the respondent's contravention of the Sex Discrimination Act.

2. In Hall v ANA Proprietary Limited (1984) 20 FCR 217 at 256 Wilcocks J said:

   The task of determining the appropriate level of damages in a case of sex discrimination or sexual harassment is not an easy one.  Where it appears that a claimant has incurred particular expenditure or less, particularly income, as a result of the relevant conduct that economic loss may readily be calculated.  The damages for such matters as injury (indistinct) distress humiliation and the affect on the claimant's relationship with other people are not susceptible of mathematical calculation.  The assessor of damages must make a judgment as to an appropriate figure to be allowed in respect of these figures but (indistinct) this is not to denigrate the importance of such non-economic factors in the assessment of damages.   It may be unfortunate that the law knows no other way of recognising and compensating for such damage but this is the fact.  To ignore such items of damage simply because of the possibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of appropriate item of damage.  I respectfully adopt as a statement of principle useful in this area of the law what was said by May L J of the English Court of Appeal in a racial discrimination case Alexander v Home Office (1988) 1 WLR 968 at 975: "As with any other awards of damages the objective of an award for unlawful racial discrimination is restitution".  Where the discrimination has caused actual pecuniary loss such as the refusal of a job then the damages referable to this can be readily calculated.  For the injury to feelings, 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 and his assessors.  Award should not be minimal because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect.  On the other hand just because it is impossible to assess the monetary value of injured feelings award should be restrained.  To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve (indistinct) nominal awards.  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 case for life.

Findings of fact

1. As in many cases in this area of jurisdiction it is the interpretation of the facts rather than the facts themselves that are mainly in dispute.  In this matter the applicant’s claim depends on whether I accept the applicant’s version of events or the respondents. There is very little evidence to corroborate either of the parties. The applicant bears the onus of proof to establish her case. It is not for the respondent to have to disprove a fact if it is not properly established by the applicant. The applicant must establish her case on the balance of probabilities.

2. I have already made reference to the fact that on two material contentions of fact between the parties there are identified by the applicant other persons who may have given evidence to assist her case. This is in relation to her assertion that the respondent made discriminatory remarks about her pregnancy to clients and advertising associates of the business and the former female employee who she says the respondent advised her had her employment terminated on the grounds of her pregnancy. There is no evidence before me as to why these persons could not have been called by her to support her case. The evidence of the applicant is silent as to whether she has made any attempts to locate these persons. In both instances such evidence would have been fairly conclusive of her assertions.

3. She did however call her mother, Mrs Robyn Ryan to support her evidence. I propose then to assess this evidence carefully.

Evidence of Robyn Mavis Ryan

1. The applicant's mother, Robyn Mavis Ryan, filed an affidavit on

   
   

   15 December 2000 in the Federal Court of Australia.  She gave oral evidence at the hearing under cross-examination.

2. Her evidence was that until the time that the applicant informed the respondent that she was pregnant, the respondent had, on a number of occasions, praised the applicant for her great work ability to her mother and always said that they were good friends.  Mrs Ryan indicated that the respondent constantly told her that the applicant was the best person who had ever worked for her and she could not believe how mature she was.  This evidence is reasonably consistent with the evidence of both of the parties.

3. Mrs Ryan's evidence was that the applicant was paid a retainer to work until 1 pm each day, but the rest of the day would be on commission based only and that the agreement did not include Saturdays. However, on several occasions, the respondent did ask the applicant to work and that they both understood that the applicant would not be paid. She did not give the basis of her knowledge as to these matters and I admitted this clearly hearsay evidence only as to support of the credibility of the applicant.

4. According to the applicant's mother, once the respondent learned of the applicant's pregnancy, her attitude changed towards her dramatically.  She says that her daughter would come home and tell her how the respondent would repeatedly make comments like, "You're too young to have a baby.  Why don't you do something about it?  It's not too late" and "Pregnant women go crazy and get lost in traffic".  Again her evidence of those matters comes from what she says her daughter told her. She did not directly hear the respondent say any of these statements to the applicant.

5. Mrs Ryan's evidence is that before the applicant fell pregnant, the respondent would often joke about putting the applicant out the front of the shop in a G-string to draw in customers.  She says that on one occasion, the respondent commented to a business associate in the presence of the applicant that she would no longer be able to do that, "Because who would want to look at a pregnant woman in a G-string?"

6. Again she does not disclose that she heard the respondent say these things and they can only have been known to her as a result of things the applicant told her. She does not say when it was that she was told these things.

7. Mrs Ryan says that after hearing the news of the applicant's pregnancy, she phoned the business to report to the applicant about her loan being approved so she could tell the respondent.  She says that the respondent answered the phone but indicated to Mrs Ryan that she was away from the shop at a sales appointment, but she took the opportunity to tell her her feelings about the pregnancy.  She says that the respondent was concerned how different things would be at work and how it would not be suitable for the applicant to work for her in that condition.  Mrs Ryan says that she asked the respondent what difference it would make and she replied, "I have to look at it from a businesswoman's point of view, and it just wouldn't be right".

8. She also asserts that the respondent, during the telephone conversation, went on to say that it was not very professional and repeated that it was not the look that she was after and, further, that the respondent says she was stupid for wanting to settle down with one man at her age and that she should consider other options - that there were no problems with having an abortion and that she had a had a few and she "would never have a kid".  She asserts that the respondent initiated the conversation in relation to the discussion and tried to convince Mrs Ryan about the benefits of the applicant terminating the pregnancy.

9. The respondent denies that Mrs Ryan ever called her at the business in this manner but that on the night of Thursday 14 May after she had telephoned the applicant about her non attendance at work, she did have a conversation with Mrs Ryan when Mrs Ryan called her back on the telephone.

10. I was not impressed with the evidence of Mrs Ryan. Much of it was identical to the evidence of her daughter and hearsay. On one occasion, as I have set about previously, her evidence is inconsistent with that of her daughter. I accept the evidence of the respondent about the conversation that took place between she and the respondent on Thursday evening 14 May. Mrs Ryan under cross-examination stated that this conversation took place over 20 minutes. She was very closely cross-examined about this conversation, its duration and it’s content. When asked about what she remembered of this 20 minute conversation she asserted that she had exact recall of the word for word contents of that conversation. It became very apparent from her evidence under cross-examination that the alleged conversation as she had related it would not have taken up 20 minutes but she was unable to recall at all, let alone word for word, any other topic of that alleged conversation.

11. Given these matters I find that her evidence is of limited value in assisting me in determining the truth of the matters because much of her evidence simply repeats conversations she says that her daughter had with the respondent at work and to which she was not a party. It is inherently likely that she has discussed these matters frequently with her daughter over the four or so years between May 1998 and the hearing in 2002. Given that length of time one would usually expect to see some differences in the evidence of two witnesses. Differences in the form of expression that they each use as to their recall of factual matters.

1. Further, I do not accept it is plausible that that she would have the precise recall she asserts of the telephone call as set out in her affidavit but be unable to tell the court about the other matters she discussed with the respondent in a telephone call that she says lasted about 20 minutes in duration. For these reasons  I prefer the evidence of the respondent about this telephone call.

2. There was also the inconsistency between the evidence of the applicant and her mother about when she went to live with her mother as I have referred to earlier which gives credence to the evidence of the respondent over that of the applicant.

Letter written by the applicant to Walter Raymond Bolton

1. It was the evidence of the applicant that she came to know Mr Bolton when she came to work for the respondent at Albutt Express in Beenleigh.  There are two letter written by the applicant to Mr Bolton in April 1998.  The applicant was asked questions in relation to letters written to Walter Bolton and it was put to the applicant that she had referred to the respondent and the employment relationship with the respondent in a warm and pleasant way. 

2. The applicant confirmed that this was true.  Was asked a series of questions of whether the respondent embarrassed her in any way in relation to her pregnancy.  Counsel for the respondent refer to a letter sent by the applicant to Walter Bolton, in particular letter A says:

   Anyhow, I love my job and I am very fortunate to have a boss like Nadine and a work associate as yourself and I'm looking forward to being able to work with both of you as this business stands beyond its originally thought capacity.  I cannot wait to work as a team and work towards our futures of comfortable success.  We're going to have so much fun.  So whatever, you don't go giving up on us, we need you to make it all possible.

3. I do not find that they take this matter any further. They were written before the applicant had her pregnancy confirmed and when both of these parties confirm their relationship at work was untroubled.

Credibility of the parties

1. This is a case where most, if not all, of the factual matters are in dispute.  What is troubling in this case is that a good excellent working relationship between the parties deteriorated through what I can only assume a falling out between the parties over a short period between the date when the applicants pregnancy was confirmed on 11 May 1998 until 16 May 1998.

2. The applicant describes herself in evidence as a mature young woman who was then 20 years of age. I find that the evidence supports that this was the case. However she says that in the very short space of just days after she had her pregnancy confirmed that the respondent who up until that time had been a good employer and a close friend and confident turned against her in a very negative way simply because she disclosed that she was pregnant. She says that despite this she did not ask the respondent not to discuss her pregnancy with her and her only response to the situation was to stay away from work after an attempt at discussion took place on Thursday 14 May 1998.

3. As I have said there are no witnesses called by her to corroborate very serious allegations she makes against the respondent about extremely inappropriate comments being made in front of business clients and business associates who assisted the business with advertising.

4. Further she contends that I should accept that it is more likely than not to have occurred as she says it did because the respondent had previously disclosed that she had terminated the employment of a former employee because she was pregnant.

5. She originally in her evidence said that she had only missed one half a day off work due to her pregnancy but later changed her evidence to admit that it had been one and a half days. While this may not be significant in many matters in this matter the period of time that she was at work and known to be pregnant was very limited. It could not have been more than 5 working days between 11 May and 16 May 1998.

Contentions and findings of law

1. The strongest claim made by the applicant is that she was dismissed on grounds of her pregnancy in breach of the SDA.  The respondent in its submissions and contentions of fact and law argued that it was the applicant who repudiated the employment contract by leaving work.

Evidence of Nadine Albutt

1. During cross-examination I found the respondent to be the more reliable witness.  I found that her evidence in relation to the dispute and to the circumstances of the working relationship and the alleged grounds of discrimination on the grounds of pregnancy were consistent with her affidavit material and were corroborated by witnesses to that effect.

2. Counsel for the respondent in submissions submitted to this Court that the tentative credibility I should find that the respondent is a reliable historian of this particular event and that her version of events should be preferred to that of the applicant and her mother.

3. I prefer the evidence of the respondent over that of the applicant and her mother because of the lack of any particularity in their recount of events. The respondent, on the other hand provides a great deal of detail in her affidavit evidence. I also preferred the oral evidence of the respondents. Under cross-examination she presented was not shaken on her evidence at all. She answered the questions directly and was, I found a sturdy and consistent witness in the witness box. She did not vary or move from the evidence which she set out in her affidavit-in-chief.

4. In particular, counsel for the respondent indicates that when it was brought to her attention that her previous solicitor Mr Whiting had said certain things in writing she had clarified those matters and informed the Court that the evidence which is contained in her affidavit material is the correct version of the events. It is submitted on behalf of the respondent that from the experience of these matters in a Court I should infer that there are times when a solicitor may put something in writing to the other party which may not be perfectly correct when looking at that piece of correspondence in hindsight.

5. The employment relationship between the parties was relatively short.  I am satisfied that the respondent employed the applicant for proper reasons.  She did have an expectation of the applicant as a casual sales representative to perform her work in a competent and professional manner and attend regularly.  The respondent gave the applicant opportunity of employment and gave her all the important opportunities to improve her position once in that employment.

6. I find that the respondent was a decent employer and one in whom the applicant could confide in her about her personal life.  That is the type of working relationship that eventuated between the parties.  They had both a business and professional relationship and they had also within that and outside that a friendship where they would confide in each other.

7. Counsel for the respondent submitted that the respondent was insightful of the concerns of the applicant as she was a young employee and that all she has done is assisted her from her own experience of certain options that would be available to her with regard to her pregnancy.  He says that nothing turns on that - that the applicant was in any way discriminated against in her employment. I accept his submissions in this regard. The fact that she discussed these matters  with the applicant as to her personal choices and options when faced with such a situation, is not of itself discriminatory.

8. Counsel for the respondent indicated that the respondent went as far as possible to give the applicant the different options which were available to her in the event of her pregnancy and confirmed the option that she could continue in her employment, for instance, working from home, changing work hours.  In fact, the applicant did admit that she felt welcome and supported by the respondent. I do not find the evidence of the applicant plausible about these matters. The applicant denies that the respondent only discussed working from home while pregnant options with her before she was pregnant but not after she was pregnant. This evidence does not make sense. There is no proper explanation given by the applicant as to the reasons why would the respondent be discussing with her options as to work alternatives that might be available to her after pregnancy before the applicant was pregnant or contemplating pregnancy. The applicant was a young woman who had only worked for the respondent for about two months prior to discovering her pregnancy. She clearly was not planning this pregnancy. She says it was a shock to her. There was no reason given by her as to why the respondent would discuss those matters with her at that time. I find that it is more likely than not that this conversation did take place as both the applicant and the respondent say that they did but that the discussions took place after she was pregnant, as the respondent assert it did. This lends weight to the respondents version of events.

9. During cross-examination the applicant gave evidence that she thought that she could manage both motherhood and career. These were consistent with the respondents evidence that she also thought this of her employee.

10. The respondent knew great detail about the applicant and her personal affairs.  She also knew that the applicant had a good strong relationship with her mother. All of this information can really only come into her knowledge from the applicant. 

11. Counsel for the respondent asked the Court in relation to the applicant's mother's evidence to regard it as a mother assisting as best as she can with her daughter's concerns.  I have already set out my findings in this regard and adopt the submission of counsel for the respondent's submissions in relation to the identical words used and the striking similarities between the evidence of the applicant and her mother. In particular if one looks at the "allegations" as stated by Ms Ryan herself then goes to the allegations made by the mother it is interesting to note that they are almost "identical" in many material respects.

12. If I accept the evidence of the applicant, notably that evidence is clear case of discrimination on the grounds of pregnancy.  This case is an issue, the central issue in this case is the issue relating to the pregnancy.  Again, the applicant's claims depend on issues of credibility and in particular on whether the Court should accept the applicant's account or the respondent's account.  As I have found it is the applicant in these proceedings who has the onus of satisfying this Court of her account before she can succeed.

13. Counsel for the applicant submitted that the matters that it is the applicant’s contention that she was discriminated against after she became pregnant and on the basis of her pregnancy. This contention needs to be looked at and considered in the context of all the evidence and in particular the overall - in the context of the overall circumstances in which she says this occurs.

14. Counsel for the applicant made two related points on this particular matter.  The first one is that there is no doubt on the evidence that the applicant loved her job with the respondent.  That seems to be abundantly clear from the whole of the evidence that she very much enjoyed her job and the letters written to Mr Bolton really confirm that, the letters written to Mr Bolton in April of 1998. 

15. The second matter counsel for the applicant raises is that there no doubt that the applicant enjoyed a very good and close relationship with the respondent.  Both parties agree that they did have a good working relationship with one another.  This evidence was also confirmed by the evidence of the applicant's mother, Mrs Ryan. 

16. Counsel for the applicant further submits that there is some inconsistency between the overwhelming evidence of the fact that the applicant enjoyed her job so much and the relationship that she had with the respondent and the allegation which is initially made in Mr Whiting's letter as to the circumstances in which the employment effectively ended.  In paragraph 4 of Mr Whiting's letter he says:

    The complainant's employment with the company was not terminated by my client.  It was made clear to the complainant that - however this option was never taken up by the complainant. 

17. Counsel for the applicant further submits that there is an inconsistency between that contention and between the respondent's contention in general as to how it came about that the employment and from this evidence was the relationship that had existed between the two parties.  It was his submission that there was also an inconsistency between the respondent in what she says in paragraph 17 of her affidavit that she relied on in these proceedings where she says that some days the applicant would not attend at all.  There is an inconsistency between that and the other evidence indicating that they had a close and mutually satisfying relationship at work and also to the extent that they could confide in each other. I am satisfied that one explanation on the evidence as to why this occurred is given by the respondent and that is that a disagreement arose between the two of them because the applicant did not come to work on Thursday 14 May 1998 and did not advise the respondent of this fact.

18. What counsel for the applicant has tried to suggest here is that the reality of the applicant's employment ended acrimoniously and, I accept that in fact, it is true that their relationship soured very quickly in the space of a very short space of time. 

19. In relation to the evidence as to the frequent references during the applicant's employment about her attractiveness and especially the fact that she was appealing, counsel for the applicant seek that I look at the evidence as a whole. It is submitted that it is very plausible that as the applicant asserts that the respondent did make frequent references during the time that she was employed in relation to her attractiveness and especially the fact that she was appealing and that her attractiveness was appealing to clients.  He also says there is plausibility in that changing when she becomes pregnant as the applicant says.  He says and asserts that the applicant has a coherent or consistency which unlike the explanation which the respondent purports to give appears to explain in a very plausible way how it was that quite suddenly what had been very satisfactory employment came to an abrupt end, finally ending on 16 May 1998. 

20. Counsel for the applicant asked that I take into account the way in which the applicant gave her evidence in the Court, when she was cross-examined in relation to her demeanour, to the way in which she responded to questions from counsel for the respondent and the way apparently was making no effort to exaggerate her account of things and in addition this may be of some assistance.

21. Counsel for the applicant asserted that Mrs Ryan's evidence was given in a very short forward way and that it did not appear that there was any reason why she would give evidence or that she was giving evidence that was anything other than truthful. 

22. Counsel for the applicant addressed me on the question of damages which is also contained in the outline of submissions filed on 16 April 2002.  In those submissions he referred to a series of cases which do offer some assistance for comparative purposes and what they tend to show.  The applicant seeks damages in relation to hurt, humiliation and distress.  He seeks on behalf of the applicant damages under this head of between $3000 - $7000.

23. Additionally the applicant seeks the amount of $5000 for economic loss. The applicant also sets out in her evidence the question of economic loss and the basis for that claim.  I must also consider the fact that the applicant did receive Centrelink benefits for some period shortly after the cessation of her employment. 

Findings as to whether discrimination on the grounds of sex and/or pregnancy is established

1. I am not satisfied that on the balance of probabilities that the applicant has established that she was discriminated against because of her sex or on the grounds of her pregnancy. She bears the onus of proof in relation to these matters. In a number of respects her case was deficient. She did not call material witnesses such as the clients of the business and advertising associates of the business whom she alleges heard the statements made by the respondent to her about her pregnancy. Importantly, she offered no explanation as to why such witnesses could not be called.

2. She did not call any evidence from the alleged former female employee of the respondent who she says the respondent told her had her employment terminated on the basis of her pregnancy. While I accept that she may not have known who this witness was, she made no attempt to put evidence before the court as to endeavours she had made to ascertain her name or her whereabouts in order to get such evidence. In a matter that is determined entirely on the credibility of the parties, this is significant.

3. She gave inconsistent evidence herself on e occasion in her cross-examination when she firstly swore that she had only missed on half a day of work due to her pregnancy but later changed this to one and a half days. Given that she only remained at work at the most 5 days after her pregnancy was confirmed this is significant.

4. Further there was the inconsistency in the evidence of she and her mother about when in fact she went to live with her mother.

5. Whist I accept that the respondent also had made an inconsistent statement through the letter of her prior solicitor, she gave  a plausible explanation that her solicitor had misunderstood her instructions in the contents of that correspondence.

6. Overall I found the respondent a more reliable witness. She was very clear and unshaken in the evidence she gave. She had clear and concise recall of events. She was I found, a more credible reporter of the facts.

Conclusion

1. In accepting as I do that the evidence of the respondent is to be preferred in this matter it follows that I do not accept that the respondent in fact terminated her employment nor that she discriminated against the applicant on the grounds of her sex or her pregnancy.

2. As the applicant bears the onus of proving her case on the balance of probabilities and I have found that she has failed to do so, her application must fail.

3. Accordingly, I dismiss the application filed on the 10 May 2000 for damages arising from unlawful discrimination.

I certify that the preceding one hundred and sixty-two (62) paragraphs are a true copy of the reasons for judgment of Rimmer FM

Associate: 

Date: