Sagona v R & C Piccoli Investments Pty Ltd & Ors
[2014] FCCA 875
•30 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAGONA v R & C PICCOLI INVESTMENTS PTY LTD & ORS | [2014] FCCA 875 |
| Catchwords: INDUSTRIAL LAW – Claimed breaches of s.340 and s.351 of the Fair Work Act 2009 – claimed constructive dismissal, altering the employee’s position to her prejudice, threatening to alter the employee’s position to her prejudice – breach of s.62 of the Fair Work Act2009 – demand to work unreasonable hours – discrimination of the grounds of pregnancy – breaches of s.340 and s.51 of the Fair Work Act 2009 found – compensation awarded – penalties imposed. |
| Legislation: Commonwealth of Australia Explanatory Memorandum Fair Work Bill 2009 Fair Work Act 2009 (Cth), ss.12, 62, 65, 73, 81, 340, 342(1) Item (1), 342(2)(a), 341, 351, 360, 361, 386, 545, 547, 550 Long Service Leave Act 1992 (Victoria), ss.66(1), 90 |
| Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Ltd (No.2) [2013] FCA 362 Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445 The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58 Hall and Others v A & A Sheiban Pty Ltd & Others (1989) 20 FCR 217 Haines v Bendall (1991) 172 CLR 60 Kelly v Fitzpatrick (2007) 166 IR 14 Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 Patrick Stevedores Operations No 2 Pty Ltd and Others v Maritime Union of Australia and Others [No.3] (1998) 195 CLR 1 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412 Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 | ||
| Applicant: | SAMANTHA SAGONA | |
| First Respondent: | R & C PICCOLI INVESTMENTS PTY LTD |
| Second Respondent: | ROBERT COSIMO PICCOLI |
| Third Respondent: | CHRISTINE MARY PICCOLI |
| File Number: | MLG 1619 of 2012 |
| Judgment of: | Judge Whelan |
| Hearing dates: | 8-10 October 2013 |
| Date of Last Submission: | 11 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 30 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Fetter |
| Solicitors for the Applicant: | Kelly Workplace Lawyers |
| Counsel for the Respondent: | Ms S Fitzgerald |
| Solicitors for the Respondent: | Russell Kennedy Solicitors |
THE COURT DECLARES:
That the First Respondent contravened s.340 of the Fair Work
Act 2009 (Cth) (“the Act”) with respect to a demand to work unreasonable hours.That the First Respondent contravened s.351 of the Act with respect to discrimination on the grounds of pregnancy.
That the Second and Third Respondents were involved in the contravention.
THE COURT ORDERS:
That the Respondents pay the Applicant compensation in the sum of $174,097.00.
That the First Respondent pay a total penalty of $45,000.00 with respect to the breaches of s.340 and s.351 of the Act.
That the Second and Third Respondents each pay a total penalty of $8,000.00 with respect to the breaches of s.340 and s.351 of the Act.
That the penalties in Orders 5 and 6 herein be paid to the Applicant.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1619 of 2012
| SAMANTHA SAGONA |
Applicant
And
| R & C PICCOLI INVESTMENTS PTY LTD |
First Respondent
ROBERT COSIMO PICCOLI
Second Respondent
CHRISTINE MARY PICCOLI
Third Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for compensation and for the imposition of penalties with respect to a claim that R & C PICCOLI INVESTMENTS PTY LTD (“the First Respondent”) took adverse action against MS SAMANTHA SAGONA (“the Applicant”) within the meaning of s.342(1)(a) of the Fair Work Act 2009 (Cth) (“the Act”) by dismissing the Applicant from her employment.
Further, or in the alternative, the Applicant claims that the First Respondent took adverse action against her within the meaning of s.342(1) Item (1) and s.342(2)(a) of the Act by threatening to alter her position to her prejudice, and took adverse action against the Applicant pursuant to s.342(1) Item 1(b) of the Act by injuring the Applicant in her employment.
The Applicant claims that the First Respondent took adverse action against her:
·Because she had exercised workplace rights and/or in order to prevent her from exercising (or further exercising) workplace rights; and/or
·Because of her pregnancy, sex and/or family or carers responsibility.
The Applicant claims that the First Respondent has thereby contravened s.340 of the Act and/or s.351 of the Act.
The Applicant claims that MR ROBERT COSIMO PICCOLI (“the Second Respondent”) and MS CHRISTINE MARY PICCOLI (“the Third Respondent”) (collectively “the Respondents”) were involved in the contraventions alleged against the First Respondent within the meaning of s.550 of the Act.
The Respondents deny that they took any adverse action against the Applicant and, if the Court is satisfied that adverse action was taken, then it was not taken because of the Applicant’s workplace rights, or pregnancy, family responsibilities, or her sex.
In the alternative, if the Court finds that there was adverse action taken on the grounds of pregnancy, family responsibilities or the Applicant’s sex, the Respondents contend that it was taken because of the inherent requirements of the Applicant’s position and there was, therefore, no breach of s.351 of the Act.
Background
The First Respondent is the operator of the portrait photography business which trades under the name of PICCOLI PHOTOGRAPHY (“the Business”). The First Respondent is also the trustee of the PICCOLI FAMILY TRUST (“the P F Trust”). The Second and Third Respondents were:
·Directors of the First Respondent;
·Managers of the business; and
·Owners of a 50% share each in the First Respondent.
The Applicant commenced employment with the First Respondent in March 2000. She initially worked as an assistant to the
Second Respondent. From about 2002, the Applicant was employed as a photographer and salesperson in the business. At some time in 2000, but after the employment of the Applicant, the son of the Respondents, MR KRISTIAN PICCOLI (“Mr K Piccoli”), commenced employment with the business. He also commenced as an assistant photographer and later became a photographer and salesperson.
The business, initially known as ROBERT PICCOLI PHOTOGRAPHY, had been operated by the Respondents since 1978. From about 2006, the Respondents had indicated that they wished to eventually withdraw from the hands-on running of the business and have the Applicant and Mr K Piccoli take over the day-to-day operations. One of the issues in the case was whether the
Second Respondent had told the Applicant that, at that time, she and Mr K Piccoli would be entitled to a share of the profits of the business. The intention of the Respondents to retire, or semi-retire, from the business crystallised at the beginning of 2012 and the Applicant, the Respondents, and Mr K Piccoli understood that it was their intention for this to occur at the end of 2012.
On 28 August 2012, the Applicant told the Respondents that she was
10 weeks pregnant and proposed to take a period of maternity leave
in 2013. On 20 September 2012, the Applicant resigned her employment with the First Respondent. The Applicant claims that the circumstances giving rise to her resignation amounted to a constructive dismissal.
The meeting of 28 August 2012
It was the Applicant’s evidence that, at around 12.00 p.m. on
28 August 2012, she arranged to meet with the Respondents to inform them of her pregnancy. The Applicant stated that, because the
First Respondent was a small business and she had a key
income-producing position, she wanted to provide as much notice as possible so that preparations could be made for her maternity leave. The Applicant stated that, during this meeting, she informed the Respondents that she was prepared to be flexible regarding the length of her maternity leave and expressed a desire to initially return to work on a part-time basis.
The Applicant also asked the Respondents to advise her of the period of time that they considered was reasonable for her to take maternity leave. The meeting concluded with an agreement that the Respondents would think about how to structure the maternity leave and they would discuss this at a later time.
The Applicant stated that the Third Respondent’s initial reaction to the news of her pregnancy was positive and within a few hours she had organised flowers and a card to congratulate her on her news. She stated that the Second Respondent’s reaction was much less positive. The first thing he said was, “What about me? I was going to retire at the end of the year”.[1] He repeated that phrase, “What about me?”[2] several times and appeared to be in a state of disbelief. Later on the same day, he approached the Applicant and apologised for not being more positive in his reaction to her pregnancy.
[1] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.25 at para.81.
[2] Ibid.
The Third Respondent’s recollection of the discussion on
28 August 2012 was that the Applicant told her and the
Second Respondent that she was in extremely good health and would be able to work all the way through her pregnancy. The Applicant said she would only take a small amount of maternity leave so that it would not affect the studio and said that she may come back to work initially part-time and that she had already enquired about childcare. The
Third Respondent stated that the Applicant did not make any request to work part-time at that meeting. She also indicated that she needed to keep on working.
The meeting of 30 August 2012
On 30 August 2012, Mr K Piccoli approached the Respondents and indicated that he wanted to talk about what would happen when the Applicant went on maternity leave. He suggested that they have a meeting with the Applicant because it was going to affect his future and that of the Respondents. The Third Respondent’s evidence was that, at this discussion, Mr K Piccoli pointed to a number of factors about which he was concerned. These included:
·Maintaining an acceptable level of sittings with one fewer photographer;
·Improving or managing the poor financial situation of the business;
·What sort of part-time arrangement the Applicant had in mind in terms of hours and for how long;
·Attending to the Applicant’s clients while she was on maternity leave;
·Ensuring continuity of personal service for clients when the Applicant had returned part-time; and
·Managing the photography assistant workload, and workplace safety issues, including working outdoors over summer and spending long periods of time on one’s feet.
Mr K Piccoli, in his evidence, indicated that workplace safety issues were not discussed at this time and that the meeting arose out of his concern as to how they would manage the working arrangements during the Applicant’s pregnancy.
The Respondents and Mr K Piccoli met with the Applicant later in the day on 30 August 2012. The Applicant described the tone of this meeting as hostile and stated that she was in tears by the end of it. During the meeting, the Third Respondent did most of the talking. Both the Second Respondent and Mr K Piccoli agreed that this was the case.
The Applicant stated that she was advised by the Third Respondent that, after the initial excitement of the news of her pregnancy, reality had set in and they were concerned about the direction of the business now that she had informed them that she was pregnant and would be taking maternity leave. Both the Respondents wanted to retire and her pregnancy and maternity leave would impact on those plans. They were concerned that the Applicant might not return to the business after her pregnancy even if that was her intention now. They suggested that, once she had the baby, she:
·Would not be as dedicated to work;
·Would not be able to work late; and
·That it would be at least five years, until her child went to school, before she could be fully dedicated to work again.
The Third Respondent put it to her that her maternity leave would result in the Second Respondent and Mr K Piccoli having to take on a much larger workload which was not fair to them. It was put to the Applicant that, because she was going to be absent on maternity leave, and may not return, they might have to reconsider their business plans for the future and would consider downsizing and reducing the photographers to just Mr K Piccoli and an assistant.
The Applicant stated that she was told that she could continue her normal role until the end of the year but would then need to take her long service leave after the summer holidays and before she had the baby. If she insisted on returning to work after the summer holidays she could only do so in a “behind the scenes capacity”.[3] She could not continue to undertake photo shoots, have sales appointments with customers or be seen by customers because it “was not a good look”[4] for customers to see a pregnant woman working in the business and this would make the Respondents look like they were “slave drivers”.[5] She would look “desperate”[6] if she worked while she was noticeably pregnant. The Applicant stated she was told that, if she did return to work after the summer holidays, her pay would need to be cut because she would not be generating any income for the business due to the fact that she would not be working as a photographer.
[3] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.26 at para.84(h).
[4] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.26 at para 84(h).
[5] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.27 at para.84(h).
[6] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.27 at para.84(i).
The Applicant stated that she was told that the Respondents would not agree to her working on a part-time basis if she returned from maternity leave, even if it was four days per week, as working
part-time was not good for customers and their needs, and “would never work”.[7] The only option for her was to return in a full-time capacity. The Applicant stated that the Third Respondent told her they would “never forgive themselves”[8] if something happened to the baby because of work and this was another reason why they did not want her to continue to work as a photographer after the summer holidays. Further, it was stated that she had informed the Second Respondent that she did not intend to have children and had not been “open and honest”[9] with them regarding her plans.
[7] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.27 at para.84(k).
[8] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.27 at para.84(l).
[9] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.27 at para.84(m).
Mr K Piccoli raised the fact that his partner had experienced difficulties during her recent pregnancy, had needed to be placed on light duties and finished work several months before the baby was born. Because of this, the business would not be able to rely on the Applicant while she was pregnant and it was not realistic for the Applicant to think that she should be able to work in the new year. The Applicant was advised that she had until Tuesday 4 September 2012 to advise the Respondents of the length of time that she wished to take for maternity leave and when she wished to commence taking it.
The Applicant stated that, during the meeting, she assured the Respondents that she was committed to the business and wanted to be flexible and was willing to work in with them. She further assured them that she would return to work after her pregnancy and that she needed to do so for financial reasons. The Applicant stated that she would only be away on maternity leave for a short period, possibly only three months, and that she wanted to make the situation work and would do anything in her power to make it work.
The Applicant stated that she believed she could continue to take photographs and work as a photographic assistant while she was pregnant but that she was happy to undertake sales appointments and pre-photo shoot planning appointments and other photographic production tasks such as retouching. The Applicant stated that she had not had any issues with her pregnancy to date and did not feel her pregnancy would impact on her ability to carry out her job as a photographer.
The Applicant stated that at the end of the meeting she was extremely upset and in tears. The Third Respondent told her that she should not get upset because it “wasn’t good for the baby”.[10] That evening, with the assistance of her husband, the Applicant made a file note of what had transpired at the meeting. A copy of the file note was provided to the Court.[11]
[10] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.28 at para.86.
[11] Affidavit of Samantha Jane Sagona filed 1 August 2013, at Annexure SJS-32.
The Applicant also sent a mobile phone text message to a colleague, MR CRISTIAN MCHEILEH (“Mr McHeileh”) describing what had occurred at the meeting. In that text message, she told him that:
·She believed she had been discriminated against because of her pregnancy.
·She was not to return to work in 2013 and was being forced to take long service leave from the end of the summer holidays;
·It did not look good for a pregnant woman to work;
·If she insisted on returning to work in 2013 before the birth of the child she would not be permitted to work as a photographer or photographic assistant or see clients and needed to stay out of the clients’ view;
·If she insisted on returning to work in the new year, she would have to take a pay cut because she was not working as a photographer; and
·The Second Respondent was annoyed about the news because he wanted to retire and Mr K Piccoli was annoyed because her pregnancy would result in a larger workload for him.
Mr K Piccoli’s recollection of the meeting was that it was not an intense meeting. He could not recall the Applicant crying. He stated that “she was just sitting there very tight lipped and we [i.e. the three Piccolis] were just putting it from our points of view”.[12] In his affidavit evidence, he stated that the Applicant spoke about her leave arrangements but did not really explain how she envisaged the business would work in her absence. The Applicant suggested getting another assistant photographer but he did not think it was practicable to get a suitably skilled assistant on board for a six-month period. The Applicant stated she might come back part-time after having the baby and they asked questions about that and how it might work. He talked about his partner’s experience and how she was going. He described the meeting as fairly calm but found it frustrating because the Applicant was not giving them much to work with.
[12] Transcript of proceedings, 9 October 2013, p.106 at lines 34-35.
In cross-examination, Mr K Piccoli agreed that the Respondents had reaffirmed that they wanted to retire at the end of the year and that the Applicant’s pregnancy had disrupted their plans. He agreed that they had stated that they were worried that the Applicant would not return to work after she had the baby and that that would leave them in the lurch. He recalled it being said that, when she had the baby, she would not be as dedicated to her work and that it would be five years before the child went to school. He agreed it was also put that he would have to take on a much larger workload with the Second Respondent while the Applicant was on leave.
Mr K Piccoli stated that they were just talking about ideas; they were brain storming. He agreed that there was discussion that, if the Applicant insisted on coming back to work after Christmas, she could only do so in a behind-the-scenes sort of way. He stated that he never heard either of his parents saying it was not a good look for customers to see a heavily pregnant woman, nor did his parents say that it would make them look like slave drivers. He stated that he did not think there was a great deal of talk about the Applicant’s pay being adjusted because she would be doing different duties.
Mr K Piccoli could not recall a discussion about the Applicant working part-time. He stated that he tried to paint a picture from his experience and the stress impact on his family life. He agreed that the Respondents did say to the Applicant that they felt she had not been open and honest with them about her plans. He further agreed that the Applicant had said she only wanted to be away from the business for a short period of time. He was not sure if the Third Respondent had told the Applicant she should not get upset because it was not good for the baby, although he thought she did say that.
The Third Respondent’s evidence in relation to the meeting was that she told the Applicant they had concerns about fulfilling their duty of care in relation to her working outside in hot weather and in high risk difficult tasks associated with photographing families and children on location. She told the Applicant she had looked into the occupational health and safety responsibilities of the First Respondent and was concerned about meeting these.
The Third Respondent discussed the Applicant’s accrued long service leave entitlements and offered to consider the option of the Applicant taking long service leave after the annual leave period at the end of January due to her concerns about the Applicant working in hot weather. She asked the Applicant to elaborate on her proposal to work part-time so that they could consider it. She asked other questions about the mechanics of the proposed arrangements.
The Third Respondent stated that the Applicant did not elaborate on the question of what she proposed for part-time work or give any outline or details of this option. The Applicant did not formally request part-time hours of work. The Third Respondent asked the Applicant to work out her timetable in relation to maternity leave and present it to them after the weekend.
The Third Respondent denied that anyone said it was not a good look for a pregnant woman to work, or that the Applicant could not work as a photographer or photographic assistant or see clients, or that the Applicant needed to “stay out of clients’ view”.[13] She further denied that the Applicant would have to take a pay cut, whether upon returning to work in the new year or otherwise. She stated the tone of the meeting was civil and all the participants spoke calmly. She stated that there were no threats of any kind made.
[13] Affidavit of Christine Mary Piccoli filed 16 September 2013, p.18 at para.97.
In cross-examination, the Third Respondent stated that, prior to the meeting on 30 August 2012, she had looked at a website to do with occupational health and safety (“OHS”) issues with pregnancy. She believed it was the Human Rights and Equal Opportunity Commission’s (“HREOC”) pregnancy guidelines.
The Third Respondent agreed that she had worked when she was pregnant with her son, Mr K Piccoli, but that he was seven weeks premature and she attributed that to her working right up until the birth. Those things were colouring her perception. She stated her main concern was that she did not want anything to happen to the Applicant’s baby.
The Third Respondent stated that she could not recall saying to the Applicant that reality had set in and that she and the
Second Respondent had wanted to retire by the end of the year and the Applicant’s pregnancy and maternity leave were going to impact on those plans. She denied saying that the Applicant could not work as a photographer after Christmas because she would be too pregnant.
The Third Respondent stated that she had looked up the Applicant’s long service leave because she thought she might want to take it. She agreed that it was put forward that the Applicant would work until the end of the year in her role and then take long service leave but stated that this was just a discussion. She could not recall the Applicant crying during the meeting. She did recall saying to her, “Don’t get upset because it’s not good for the baby”[14] but could not remember when she had said that or whether it was during this meeting.
[14] Transcript of proceedings, 9 October 2013, p.214 at line 21.
The Third Respondent denied that the Applicant stated she only wanted a short period of leave and suggested around three months, saying that the Applicant never gave any timeframe. She agreed that the Applicant had assured her that she was committed to the business. She stated that the Applicant just sat through the whole meeting and did not give them any answers. She could not recall anyone saying that it would not be a good look for customers to see a pregnant woman working but she did remember the Applicant suggesting that she could do other activities.
The Third Respondent stated that no one said that the Applicant could not continue working as a photographer. She agreed that Mr K Piccoli had said, “Well, if you are going to come back part time, who is going see your clients?’.[15] She stated, “he just couldn’t get his head around how it would work”.[16]
[15] Transcript of proceedings, 9 October 2013, p.216 at lines 13-14.
[16] Transcript of proceedings, 9 October 2013, p.216 at line 15.
The Third Respondent could not recall a statement that the business would not be able to rely on the Applicant while she was pregnant. She agreed that the Applicant had stated that she did not feel her pregnancy would impact on her. She could not recall if the issues of working in the heat, lifting or standing were dealt with in the meeting. She further could not recall saying that the Applicant should not work after Christmas.
The Third Respondent could recall saying that it was possible that the Applicant could take her long service leave from the end of the year. She could not recall stating that the Applicant would have to take a pay cut if she came back to work after Christmas.
The Third Respondent seemed to remember saying something like,
“I think that’s better that this didn’t happen when Rob had retired. If this had happened 10 years ago, that would have been okay”.[17] She seemed to remember the Applicant saying in response, “We’re talking about a period of months”.[18] The Third Respondent stated that she may have said to the Applicant that she was not entitled to long service leave because it was 15 years. She stated she told the Applicant that she would have to look it up.
[17] Transcript of proceedings, 10 October 2013, p.229 at lines 6-9.
[18] Transcript of proceedings, 10 October 2013, p.229 at lines 15-16.
The Third Respondent could not remember saying to the Applicant that she needed to give a written statement of the time that she wanted to take maternity leave, but did recall asking her to work out her timetable. She agreed that, following this meeting, the Applicant’s behaviour towards her and the Second Respondent changed and that, in a whole range of interactions with her after that date, the Applicant was tense. The Third Respondent could not recall if the Applicant was crying at the end of the meeting but she may have been.
In his evidence concerning the meeting of 30 August 2012, the Second Respondent agreed that he was concerned about how it would look to have someone heavily pregnant doing photo shoots. He agreed that the issue of the length of the maternity leave was discussed at the meeting. He stated they had to make some decisions as to how the logistics of the whole thing was going to take place. He agreed that one of the issues was because of the Applicant being away, the business might suffer and the question of who was going to take over the workload was an issue. He agreed that Mr K Piccoli had concerns about that matter and that he and the Third Respondent felt the same way. The Second Respondent stated that he “might have said something about her safety”[19] at the meeting; he was really concerned about how the Applicant would be able to perform. From his experience as a photographer, he was concerned as to how she would perform without risk to her health or an accident happening.
[19] Transcript of proceedings, 10 October 2013, p.324 at line 2.
The Second Respondent could not recall it being put to the Applicant, “Are you going to have a baby and never come back?”[20] He stated that she was asked how long she was going to be gone for and when she was going to come back. He stated that the Applicant had been part of a plan for 12½ years. He further stated there was nothing raised about a pay cut but there might have been a reference to some of the extra benefits; the car, for instance. He agreed that he made the suggestion that, after annual leave, the Applicant could go on long service leave. He stated that he said he would prefer it but he never said that she had to do it. He did recall the Applicant saying she could probably do other duties. It was never said that she needed to work behind the scenes so that clients did not see a pregnant woman.
[20] Transcript of proceedings, 10 October 2013, p.326 at line 38.
The Second Respondent agreed that the Third Respondent had told the Applicant that she had not been open with them. He agreed that the Applicant replied she was committed to the business and wanted to work with the business. He could not recall the Third Respondent raising a concern that the Applicant was going to choose the baby over work. He could remember the Applicant saying that she needed the work and she needed the money. He did recall the Applicant bringing up the issue of part-time work and expressed the view that “the logistics of it just wouldn’t work out”.[21] He expressed that view and the Third Respondent and Mr K Piccoli agreed with him. He thought he could remember it being stated, “it must be full time. There’s no other choice”.[22] He could recall there being a discussion over long service leave and that the Second Respondent told the Applicant she was not entitled to long service leave but that the First Respondent would give it to her in advance of the 15 years. He could not recall all that had been discussed at the meeting.
[21] Transcript of proceedings, 10 October 2013, p.332 at lines 8-9.
[22] Transcript of proceedings, 10 October 2013, p.332 at lines 19-20.
The meeting of 4 September 2012
On the morning of 4 September 2012, the Applicant states that she hand-delivered a letter to the Respondents stating that:
·
She intended to take maternity leave from 5 March 2013 until
24 September 2013;
·
She wanted to take 11 weeks long service leave between
5 March 2013 and 21 May 2013; and
·She was open to having a discussion regarding the possibility of shortening the length of her maternity leave in order to accommodate the business and its needs; and
·She would confirm her maternity leave plans in early February 2013.[23]
[23] Affidavit of Samantha Jane Sagona filed 1 August 2013, Annexure SJS-36.
On the same morning, the Applicant states that she had a meeting with the Respondents and Mr Kristian Piccoli. She was told by the
Third Respondent that she should expect what the Third Respondent described as a counter-proposal to her 4 September 2012 letter.
The Applicant was further told that she should take her long service leave after the summer holidays until the birth of her child which was due around 24 March 2013. One of the reasons why she should take a long service leave before the birth of her child was because there would be no work for her in the new year. This was because she would not be allowed to photograph or undertake photographic sales sessions. Further, because she would not be photographing, she would not be contributing financially to the business and there was no other way she could contribute to the business as they had other staff to do
behind the scenes work.
The Applicant was told that the business was at a “crossroads”[24] and
Mr K Piccoli and she were not “earning our keep”[25] and it was going to be necessary to reassess their remuneration. She was further told that she and Mr K Piccoli were required to work an extra full Monday or two late nights until 9.00 p.m. in order to increase revenue for the business.
[24] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.32 at para.97(e).
[25] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.32 at para.97(e).
Mr K Piccoli could not remember many details about that meeting. He did recall the Respondents saying that the business was a crossroads and that he and the Applicant were not earning their keep. He recalled it being said that it was going to be necessary to reassess their pay. When questioned about whether they had been asked to work extra hours, he stated that the Third Respondent had said, “Look, if you probably got back to those hours you were working, you probably would get closer to the averages you need to reach.”[26] He understood that this was a request to stay back to do more calls to try to generate more business. He could not recall the Applicant telling his parents that she did not want to take long service leave before the baby arrived.
[26] Transcript of proceedings, 9 October 2013, p.116 at lines 19-20.
The Third Respondent’s initial evidence was that she could not recall a conversation on the morning of 4 September 2012, as set out in the Applicant’s evidence. She did recall that the Second Respondent was not present early on that morning as he had gone to the hospital during the night. If there was a meeting, he was not there. She could remember a conversation where she told the Applicant that she should expect a counter proposal to her letter. She could also remember telling the Applicant and Mr K Piccoli that they were not earning their keep and that the business was at a crossroads but could not remember when this was said. She did recall telling the Applicant and Mr K Piccoli that they needed to work two nights per week, or a full Monday, to make up but thought that this was at another meeting.
The Third Respondent could recall the Applicant saying that she did not want to take long service leave while waiting for the baby to arrive as she wanted to use it when she had the baby. She did recall the Applicant saying something about her ability to contribute in other ways. She recalled the Applicant suggesting that she could do other roles but the Third Respondent could not make any sense of that because they had people doing those jobs. She stated, “Even if I paid her the same, it would a [sic] demotion”.[27]
[27] Transcript of proceedings, 10 October 2013, p.237 at line 11.
The Third Respondent denied saying that:
·The business did not need the Applicant;
·There was no job for her; or
·They could not pay her if she returned to work after the summer break.
She did recall saying to the Applicant, “Would you be expecting to keep the car?”[28] The Applicant did not answer her.
[28] Transcript of proceedings, 10 October 2013, p.237 at line 46.
The Applicant stated that she made a file note of the meeting on the morning of 4 September 2012. Later in the afternoon of
4 September 2012, the Applicant stated that she was called to another meeting with the Third Respondent and Mr K Piccoli. The Applicant recorded this meeting.
In this meeting, the Third Respondent informed Mr K Piccoli and the Applicant that:
·The total sales and average sales had been down that year;
·The business was being run at a loss;
·She had spoken to the business’ accountant and the Applicant and Mr K Piccoli were both being paid much more than the average photographer’s wage, which was about $55,000.00 per annum;
·The Applicant and Mr K Piccoli were going to be given six weeks to increase sales and then there would be a reassessment of their salaries and salary packages; and
·If the business continued to run at a loss, it would have to be shut down.
During the meeting, the Third Respondent presented the Applicant and Mr K Piccoli with a document entitled “28 weeks review for Kristian Piccoli and Samantha Sagona 4/9/2012”.[29] The document stated that:
·Their salaries and benefits were based on their performance;
·Their performances were well under their sales targets;
·Their performances were substantially less than their performances at the same time in 2011;
·In order to continue with their current salary packages, they were required to produce $11,170.00 per week in sales with an average of $2,180.00 per sale over the following six weeks, and if this target was not reached, their salary packages would be restructured according to their financial product in the year to date; and
·Once this target had been achieved in a six-week period, $10,000.00 of sales were required to be achieved each week.
The document also set out the amount of sales and the weekly sales average per week for the year to date and for the comparable period in 2011.
[29] Affidavit of Samantha Jane Sagona filed 1 August 2013, at Annexure SJS-39.
The Applicant stated that she was very upset at the end of this meeting. She believed that the $11,170.00 and $10,000.00 sales targets referred to in the review were unachievable. At that time in 2012 she had only achieved $10,000.00 in weekly sales on five occasions and
Mr K Piccoli had only achieved it on four occasions. During her entire 12½ years of employment, six consecutive weeks of sales in excess of $10,000.00 had never been achieved, not even by the
Second Respondent.
According to the 28 weeks review document, the Applicant’s weekly sales average at the time was $6,288.00 and her weekly sales average at the equivalent time in 2011 was $7,355.00. Prior to that date, in the 12½ years of her employment, neither of the Respondents had ever discussed with her the possibility that her remuneration would be reduced because of her sales performance.
Mr K Piccoli’s evidence was that he understood that if he and the Applicant were to continue with their current salary packages things had to change. He understood that his salary package would be reassessed if he did not make the targets set at the meeting by the
Third Respondent. He understood that by “reassessed”, the
Third Respondent meant “reduced”.[30]
[30] Transcript of proceedings, 9 October 2013, p.123 at line 18.
Mr K Piccoli stated that he was concerned at the meeting that the target was unachievable however, this meant it was unachievable in the first week or so as they would need time to “get on the phone and book people in, photograph them”.[31] He stated that three weeks after, he did turn it around: “I was only a thousand short”.[32] He stated that he understood that the number of $11,170.00 had been picked because that was the shortfall from the previous year. He understood that there was a big shortfall and felt very guilty about it. He stated that he did believe that the Respondents could cut his wage.
[31] Transcript of proceedings, 9 October 2013, p.126 at line 26.
[32] Transcript of proceedings, 9 October 2013, p.123 at line 28.
The Third Respondent’s evidence was that she had set the target of $11,170.00 in sales over the next six weeks. She stated she asked the Applicant and Mr K Piccoli to make the shortfall compared to the
year 2011. She stated that the figures were drawn from the weekly sales summaries. She agreed that in the statement, the 28 week review document, she asserted that the sales and benefits of Mr K Piccoli and the Applicant were based on performance. The Third Respondent denied that this was not true.
[34] Transcript of proceedings, 10 October 2013, p.254 at line 37.
The Third Respondent stated that she had warned the Applicant and
Mr K Piccoli “time and time again … they were like little children”.[33] She did not threaten them with dismissal if they did not reach their targets. She stated that she did not say she was going to reduce their pay; she said she would restructure the package. She further stated she would have had to look at it based on their performance. She had a
“total belief”[34]that they were going to do it. From her understanding, she believed that the Applicant understood and agreed to the targets. The Applicant gave every indication that she would try her best to meet them. The Third Respondent agreed that it would have been difficult to meet the targets, but possible.
[33] Transcript of proceedings, 10 October 2013, p.253 at lines 20-21.
The Second Respondent’s evidence was that he could not recall being at any meeting on 4 September 2012.
The meeting of 6 September 2012
On 6 September 2012 at around 5.30 p.m., a further meeting was held involving the Applicant, the Third Respondent and Mr K Piccoli. The Third Respondent presented the Applicant and Mr K Piccoli with documents entitled “Performance Review and amendment to work agreement”[35] (“the Variation document”). The Applicant stated that when she provided her with the document, the Third Respondent told her that:
·A new contract had been prepared;
·The Applicant and Mr K Piccoli were to read and sign the new contract;
·The Applicant had regressed in her sales performance; and
·The business was not viable.
The Third Respondent stated that she and the Second Respondent had an obligation to do what was best for the business. She further stated that she and the Second Respondent should never have let Mr K Piccoli and the Applicant work as photographers – the business would have been more profitable if it had just been the Second Respondent working as the photographer.
[35] Affidavit of Samantha Jane Sagona filed 1 August 2013, at Annexure SJS-46.
After being handed the Variation document, Mr K Piccoli immediately signed it. The Applicant asked the Third Respondent if she could take the document home so that she could discuss it with her husband. The Third Respondent informed the Applicant that she could take the Variation document home but her position with the First Respondent would “not continue”[36] unless she signed the document.
[36] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.39 at para.120.
The Applicant stated that, according to the Variation document, her employment had conditions that she was obligated to meet in order to receive benefits. In accepting her position, she had agreed to obtain sales at a minimum of $10,000.00 per week. In return, from total sales of at least $10,000.00 per week, the First Respondent had committed to pay her:
·A weekly salary of $1,950.00;
·Superannuation;
·The use of a car; and
·Income protection insurance,
which was a salary package valued at $123,000.00 per year.
The First Respondent could not pay her salary package if the Applicant did not produce a minimum of $10,000.00 per week in sales. The conditions of her arrangement with the First Respondent had not been met, thus making it “unsustainable”.[37] The situation was not “currently financially sustainable”[38] for the First Respondent.
[37] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.39 at para.122(e).
[38] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.40 at para.122(g).
The Applicant was being given “one more opportunity to make good”.[39] Over the next six weeks, she was required to produce sales of at least $11,700.00 per week and, thereafter, was required to produce sales of $10,000.00 per week with an average of $2,180.00 per sale in order to meet her current salary arrangement. There would be a performance review on 16 October 2012 and her salary package would be “reassessed”[40] at that point based on her performance to date. The First Respondent had made a “‘huge financial investment’ in me as a ‘key member of staff’, however, ‘at some point the decision needs to be made as to the viability of that investment’ and ‘the time for re-evaluation is at hand’”.[41] To “continue as an employee I was required to agree to the requirements referred to in the Variation Document”.[42] As she had not met the conditions of her current agreement, it was “unworkable and invalid”.[43]
[39] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.40 at para.122(h).
[40] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.40 at para.122(j).
[41] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.40 at para.122(k).
[42] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.40 at para.122(l).
[43] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.40 at para.122(m).
The Applicant stated that she was extremely upset after receiving the Variation document because the sales requirements outlined in the Variation document were very high and unachievable and had never been historically achieved. The Applicant also stated that, in her previous years of employment, she had never been asked by the First Respondent to sign a contract, however, within just a week of advising them of her pregnancy, she was being asked to sign a contract that contemplated reducing her remuneration and which set unachievable sales targets.
In cross-examination, the Applicant agreed that she did not object to the proposal when it was first put to her. She agreed that she did not tell the Third Respondent that she was not going to sign the Variation document. She stated that she was not quite sure what she was going to do at that point.
Mr K Piccoli, in his evidence, agreed that the letter given to the Applicant was slightly different to his own. He stated that it was always a condition of his salary that he met the targets. He stated that, even though they failed to do it, the Respondents “still kept giving us one more opportunity”.[44] He stated he would not have signed the Variation document if he did not agree with it. He stated that he understood that this was a new sort of contract. He further stated that he understood that, for the next six weeks, they would need to achieve the sales value of $11,170.00 to make up the shortfall and then it would go back to the other contract.
[44] Transcript of proceedings, 9 October 2013, p.135 at lines 1-2.
In her evidence, the Third Respondent stated that she agreed that she had told the Applicant that she had regressed in her sales performance. She also recalled saying that the Respondents should never have let her and Mr K Piccoli work as photographers and that the business would have been more profitable if it had just been the Second Respondent working as a photographer. She denied that she told Mr K Piccoli and the Applicant that they were required to sign the Variation document. She agreed that Mr K Piccoli had signed the Variation document on the spot.
The Third Respondent stated that Mr K Piccoli had had a prior meeting with the Respondents where they had had a lengthy discussion and he had been asked, “look, do you want to do the job or don’t you [sic]. If you’re committed to it, we’re going to continue, but if you’re not, we would be happy just to wind it down”.[45] When asked if she would have sacked her son, the Second Respondent replied, “No, we would have closed the business down”.[46] The Third Respondent stated that she saw the variation to be a short-term thing and “didn’t believe it was going to end the previous agreement”.[47]
[45] Transcript of proceedings, 10 October 2013, p.259 at lines 20-22.
[46] Transcript of proceedings, 10 October 2013, p.259 at lines 25-26.
[47] Transcript of proceedings, 10 October 2013, p.259 at line 44.
The Second Respondent indicated that the Third Respondent had consulted with him about the performance review and amendment to work agreement but he did not believe they had taken legal advice on it.
Following the meeting on 6 September 2012, the Respondents spoke to the Applicant on the morning of Saturday, 8 September 2012. They asked her if she had had time to look at the Variation document yet. She told them that she had it at home. The Third Respondent told her that they needed it urgently because they were having a meeting with their accountant on Monday. She told them that she would get it back to them by email.
The letter dated 10 September 2012
It was the Applicant’s evidence that on 9 September 2012 at
10.49 p.m., she sent a letter dated 10 September 2012 by email to the Respondents.[48] The letter stated that the Applicant:
[48] Affidavit of Samantha Jane Sagona filed 1 August 2013, Annexure SJS-49.
·Loved her job and wished to continue working with the First Respondent but felt that they had treated her badly since she had advised them of her pregnancy;
·Noted that the Respondents had stated that she could not work with clients because she was pregnant, that she had not met the conditions of the contract and that they wanted to vary the contract. She stated that this action was “out of the blue”;[49]
·Considered that the Respondents were discriminating against her because she was pregnant and she wanted them to stop discriminating against her;
·Had reported their discriminatory conduct to the relevant authorities;
·Had never agreed that her salary was dependent on meeting sales targets and that, even if it were, they had no right to change those targets without agreement;
·Had been advised by her lawyer that she was not legally required to agree to the contact variation and would not be doing so;
·Understood that the business was having trouble and was happy to do anything reasonable, within the current contract, to help improve sales. She stated she was dedicated to the future of the business and wanted to work there for a long time; and
·She was happy to sign confidentiality agreement and wanted the Respondents to confirm in writing that they would cease discriminating against her and would honour the existing contract.
[49] Affidavit of Samantha Jane Sagona filed 1 August 2013at Annexure SJS-49.
On 11 September 2012, the Applicant stated that she attended the normal Tuesday 8.30 a.m. sales meeting. When she arrived, the
Third Respondent said nothing to her about the letter dated
10 September 2012, which she thought was odd. She asked the
Third Respondent if she had received a letter and was informed that she had not received it. The Applicant thought that this was strange given that the Respondents were expecting an email from her and, in addition, she had blind-copied the email to her husband’s email address and he had received it.
After the meeting concluded, the Applicant went to her computer and printed off a copy of the 10 September 2012 letter. When she went to give the letter to the Third Respondent, she was told not to give it to her but to give it to the Second Respondent. She immediately went to the Second Respondent and gave him the letter. The Applicant stated when she gave the letter to the Second Respondent he barely glanced at it before he started talking to her about it.
The Applicant stated that she believed and continued to believe that the Respondents had received a copy of the 10 September letter 2012 on 10 September 2012 and had not been honest with her regarding the fact that they had not received it.
In cross-examination, the Applicant stated that the Third Respondent had told her that the email had gone to her junk folder. The date and time on that was Monday at 8.50 a.m. but the Applicant had sent the email the previous night at “like, 9-something pm so it wouldn’t have gone straight to her junk mail that early in the morning”.[50] For that reason, she believed that the Third Respondent had read it and moved it to her junk folder. She also stated that, “when Robert saw the letter … it was a matter of seconds before he started talking to me about it, and how he was referring to it, I think showed that he knew what the content was”.[51]
[50] Transcript of proceedings, 8 October 2013, p.37 at lines 3-4.
[51] Ibid at lines 13-16.
It was the Third Respondent’s evidence that she had attended the workplace at about 7.45 a.m. on the morning of 10 September 2012, to check if there was a letter from the Applicant. The letter was not there so she went home. Both she and the Second Respondent were away from the studio from the rest of that day.
On the morning of 11 September 2012, the Applicant approached her when she was walking upstairs and said to her, “Have you got my letter? Have you got my letter?”[52] The Third Respondent thought she was referring to the Variation document. The Applicant went downstairs after the meeting and printed a copy of the letter from her computer and tried to hand it to her. As she walked past the Applicant’s monitor, she saw that it was opened and the letter was there and she glanced at it. She saw that it was addressed to herself and the Second Respondent. She described the Applicant at the time as being “extremely tense … extremely nervous … and very anxious”.[53] The Third Respondent stated that she was quite upset about what the letter contained and that this was the first time any employee had complained about any discrimination.
[52] Transcript of proceedings, 10 October 2013, p.263 at line 43.
[53] Transcript of proceedings, 10 October 2013, p.264 at line 31.
The Third Respondent stated that she never received any other emails late and could not understand what had happened to this one. It was put to her that after the meeting between the Applicant and the
Second Respondent, she approached the Applicant and told her that she had now read the letter and that it was absolutely appalling. She could not recall saying that. She did remember being shocked and the reason why she was shocked. She could not recall telling the Applicant that what she had done by writing the letter was “evil”[54] and that she was a “smartarse”.[55] She did recall saying that she thought it was wrong.
[54] Transcript of proceedings, 10 October 2013, p.264 at lines 1 and 3
[55] Transcript of proceedings, 10 October 2013, p.264 at line 5.
The Third Respondent agreed that she did say that the relationship between herself and the Applicant would never mend and that she was going to tell everyone what she had done. She did not recall saying to the Applicant that, even if she did not sign the Variation document it would still be enforced against her. She denied that the Applicant was upset at this conversation, saying that she was “very smug”.[56]
[56] Transcript of proceedings, 10 October 2013, p.269, at lines 43 and 45.
The Second Respondent stated that he had not seen the letter alleging pregnancy discrimination until it was handed to him by the Applicant. He stated that he had only read it when she handed it to him. He further stated that he was upset by the letter. He was not angry but he was upset. He agreed that this was the first time an employee had made allegation of discrimination against him. He stated that he found the statement that she had made an official complaint to be threatening.
The meeting between the Applicant and the Second Respondent on
11 September 2012
The Applicant made a recording of her meeting with the
Second Respondent where they discussed the content of her letter
10 September 2012.
The Applicant stated that the Second Respondent told her that by Christmas 2012 she would be looking pregnant and she would not be permitted to work as a photographer or a photographic assistant because it was not a “professional look” or a “good look” and it would not “look right” to have a pregnant woman working.[57] The
Second Respondent stated that people would think badly of him if he employed a woman who looked pregnant because they would think that she was working “under sufferance”.[58] The Second Respondent told her that she should take a long service leave between the end of the summer holidays and the birth of her child on 24 March 2013. If she insisted on returning to work in 2013 before the birth of the child, he would not permit her to work as a photographer. If she insisted on returning to work in 2013 before the birth of the child she could only undertake light duties and because of this, would not be entitled to her normal pay.
[57] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.44 at para.139(a).
[58] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.44 at para.139(b).
The Second Respondent also told her that, after her maternity leave, there was no possibility for her to return initially to work on a part-time basis. He also told her that, because of her pregnancy, he needed to make new plans for the business and was considering downsizing to just Mr K Piccoli. He stated that, after her maternity leave, there was “no guarantee”[59] that there would be a job for her.
[59] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.45 at para.139(h).
The Second Respondent stated that he had planned to retire at the end of 2012 and now, because of her pregnancy announcement, his plans were “out the window”.[60] The Second Respondent was unhappy that she had reported his conduct to the relevant authorities, that it was a “pretty big issue”, he had a “not so pleasant point of view” towards her, and that it did not create “very nice public relations between the employer and the employee”.[61] The Second Respondent also stated that he was disappointed in her. He did not feel “very good in his heart”[62] towards her and it would be difficult to continue working with her.
[60] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.45 at para.139(i).
[61] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.45 at para.139(j).
[62] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.45 at para.139(k).
The Second Respondent agreed that the transcript of the recording of his meeting with the Applicant was correct. He agreed that he did say, in that conversation to the Applicant, that she had planned the whole thing from the start. He agreed that, by this stage, it was his belief that he been caught in a trap set by the Applicant. The Second Respondent agreed that he had a conversation with the Third Respondent about the letter. He described himself as being “totally destroyed”.[63] He agreed that the Third Respondent was also upset about the letter but denied that she was angry.
[63] Transcript of proceedings, 10 October 2013, p.344 at line 29.
The events of 13 September 2012
It was the Applicant’s evidence that, on 13 September 2012, at around 9.15 a.m., the Third Respondent buzzed her on the intercom and spoke to her in a very aggressive manner. She stated that she could not log onto the Applicant’s Google calendar. The Applicant informed her that she had reset the password on 11 September 2012 as she has not been able to log into it. The Third Respondent stated that she had changed the password on 10 September 2012 and was waiting for her to ask about it.
The Applicant sent the Third Respondent an email at 9.35 a.m. stating that she had noticed her password had been changed when she came in on Tuesday.[64] She could not log in for some reason and saw an email saying that it had been changed on the Monday. The Applicant also stated that she had lost all of her future entries from April 2013 onward which she considered to be “very odd”.[65] She gave the Third Respondent her new password. The Applicant stated that, later in the morning, the Third Respondent came into her office and questioned her about why she had changed the Google calendar password.
[64] Affidavit of Samantha Jane Sagona filed 1 August 2013, Annexure SJS-57.
[65] Ibid.
In her affidavit evidence, the Third Respondent stated that, on
9 September 2012, she came into the studio in the late afternoon. As she wanted to look up something on Google, she used the Applicant’s computer. As she was doing so, she noticed an email in the inbox dated 9 September 2012 which said the password had been changed. She thought this was odd as the Applicant had not asked her if it was alright for her to do this. She could not think of a legitimate reason for the Applicant to change her password.
The Third Respondent decided to change the password again and send Google a request to do this. As she was doing this she noticed that the Applicant had added her personal email address as an alternative email address to the Google account meaning she could sign in with this alternative email address from home and obtain access to her business email account and calendar. The Third Respondent could not identify any reason for the Applicant to require access to a business email from home. The Applicant’s calendar contained her clients’ history and contact details and she was concerned that the Applicant may be planning to take these details to another studio. At the time she observed that, there were a number of client-related calendar entries for the period when the Applicant was going to be absent on parental leave, so she moved those appointments from the Applicant’s computer to her own.
The Third Respondent stated that, on the morning of
13 September 2012, she asked the Applicant why she had changed the password on her computer. She told her she was waiting for her to ask about it. The Third Respondent asked the Applicant for the new password. About 10 minutes later, an email arrived in her inbox with the new password. As this did not resolve her concern as to why the password had been changed in the first place, the Third Respondent decided to speak to the Applicant in person. She told the Applicant that she had received a Google notification dated 9 September 2012 which said the password had been changed. She asked the Applicant why this had happened. The Applicant told her it had been “computer generated”.[66] The Third Respondent stated that she subsequently contacted their IT specialist who informed her that it was very unlikely that a password reset was computer-generated without a request having been made.
[66] Affidavit of Christine Mary Piccoli filed 16 September 2013, p.29 at para.162.
In her affidavit in reply, the Applicant stated that she believed that the Third Respondent had attended the office on both 9 and
10 September 2012, as the First Respondent’s Facebook page, which was administered by the Third Respondent, had been updated on both of those mornings. The Applicant stated that she had the practice of shutting her computer down at the end of each day and that, therefore, in order to “look something up on Google”[67] on her computer, the Third Respondent would have needed to turn the computer on and open the Internet program. It is unclear to her why, if the Third Respondent was looking up something on Google, she needed to look at the Applicant’s work emails.
[67] Affidavit in Reply of Samantha Jane Sagona filed 30 September 2013, p.58 at para.210(b).
The Applicant stated that her Google calendar account was an account she had established in or around 2009 in order to organise her appointments and manage follow-up with customers. She had changed the password on this account in the past and it had never been raised as an issue by the Third Respondent. The Applicant did not believe that the Third Respondent had ever even looked at her Google calendar prior to 10 September 2012. The Third Respondent had never, during the course of her employment, asked her for her password.
The Applicant stated that, sometime in 2011, she set up her business email account so that she could access it from home. She did this so that, on occasions, rather than attending work on a Monday (which was her day off) or after hours, she could send emails from home which was much more convenient than attending work to simply send
follow-up emails and make phone calls. The Applicant denied that the Third Respondent was unaware that the Applicant had access to email accounts from home. She stated that she had discussed the fact that she had access to her business email account from home on previous occasions.
The Applicant stated that she made the decision to change her Google calendar password after discussion with her husband concerning the potential recrimination she could experience as a consequence of sending the Respondents the letter dated 10 September 2012. She denied that there was anything untoward about changing her password.
The Applicant stated that, around this time, the Third Respondent took over some of her duties, such as preparing daily work plans for support staff such as Mr McHeileh, however, the Third Respondent did not inform her that she was going to do this or explain why she was doing it. The Applicant stated she only learnt that the Third Respondent was preparing daily work plans when one of her colleagues informed her of it.
The Applicant stated that, around 6.45 p.m. on 13 September 2012, she buzzed the Third Respondent on the intercom system to let her know that she was leaving for the day. She stated that she was the only other person remaining in the building in that time. The Applicant also stated that the Third Respondent told her it was too early for her to leave work and she was expected to work two late nights until 9.00 p.m. or a full Monday, to make up sales. She informed the Third Respondent that, if that was the case, she would come to work on the following Monday. The Third Respondent stated that, as she had not come in on the previous Monday, she needed to make up for that as well. The Third Respondent also stated, “you don’t want this to end badly”.[68]
[68] Affidavit of Samantha Jane Sagona, filed 1 August 2013, p.51 at para.168.
It was the Third Respondent’s evidence that the Applicant contacted her on 13 September 2012, when she was leaving work for the day. She reminded the Applicant that she had not worked any evenings late that week, or come in on the Monday prior. She also reminded the Applicant that they had targets to meet and she had a responsibility to do everything possible to achieve that end. She agreed that she told the Applicant, “you don’t want this to end badly”.[69]
[69] Affidavit of Christine Mary Piccoli filed 16 September 2013, p.25 at para.141.
The events of 14 September 2012
At approximately 8:30 a.m. on 14 September 2012, the Applicant sent the Third Respondent an email.[70] The email stated that the Applicant was finding the Third Respondent’s treatment of her very upsetting and she did not feel that she was working in a safe working environment. The Applicant also did not think that it was reasonable that she be expected to work a full Monday or two late nights until 9.00 p.m. on top of her normal hours. The Applicant stated that she had never been asked to work these kinds of hours before and felt that she was being asked to work them because of the letter that she wrote on
10 September 2012, alleging discrimination.
[70] Affidavit of Samantha Jane Sagona filed 1 August 2013, Annexure SJS-59.
The Applicant reiterated that she was happy to do anything reasonable, within the bounds of her current contract, to help improve sales but what she was being asked to do was unreasonable.
The Applicant also stated that she believed that the photo shoots should be more fairly distributed between her and Mr K Piccoli as she felt he was being favoured in being assigned photo shoots. The Applicant stated that, if the Third Respondent’s bad treatment of her continued, she would have no alternative than to take formal steps to protect herself, which was something that she did not wish to do.
At around midday on 14 September 2012, there was a meeting between the Applicant and the Respondents. The Applicant stated that the
Third Respondent was very angry with her in this meeting and spoke in a very aggressive manner. The Applicant was very upset by the end of the meeting.
The Applicant stated that, during the course of the meeting, the Respondents told her that her complaints regarding discrimination and mistreatment were “ ‘stupid’, ‘hurtful’, ‘cock and bull’, a ‘cop out’, a ‘game’ and a ‘concoction’ ” and that the Third Respondent would keep them so that she could read them, “over and over and over and over”.[71] The Applicant states that she was also told that she was not committed to the business, that unless she made $10,000.00 in sales per week the Respondents were “unable to afford to pay [her]” and they would “have to make some decisions”.[72]
[71] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.53 at para.175(a).
[72] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.53 at para.175(c).
The Applicant was also told that she was “‘drawing a line in the sand’ and ‘elevating things to another level’” and that by making her complaints she was “‘very hard to work with’” and “‘not on their side’”.[73] The Applicant also stated she was told that she was “‘evil’, ‘uncooperative’, ‘stupid’, ‘not a professional’, ‘destructive’, had a ‘strange mindset’ and a bad attitude, and was caught in ‘some strange little bubble’”.[74]
[73] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.53 at para.175(d).
[74] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.53 at para.175(e).
The Applicant stated that she was told she was “required to work night and day, up to seven days a week, in order to meet sales targets. If [she] refused to do this it was a ‘denial to meet [her] work obligations’ and a ‘very serious matter’ which would ‘force’ them into a ‘situation’ and … was ‘going down a very dangerous road”.[75] The Applicant says she was further told that the Respondents could have “‘three people for me’ and they ‘wouldn’t have the headaches with these stupid little letters’”.[76] The Applicant was told that she should not make any further complaints to them.
[75] Affidavit of Samantha Jane Sagona filed 1 August 2013, pp.53-54 at para.175(f).
[76] Affidavit of Samantha Jane Sagona filed 1 August 2013, p.54 at para.175(g).
The Applicant made a recording of this conversation.
The Applicant stated that, a few hours after the meeting, she received an email from the Third Respondent stating that she was concerned about her suggestion that the current workplace environment was unsafe and wanted to work with her in relation to why she considered her work environment unsafe and what changes she suggested to rectify the situation.[77]
[77] Affidavit of Samantha Jane Sagona filed 1 August 2013, Annexure SJS-62.
Both the Respondents stated that the main focus of the meeting was to try to get some clarity about the Applicant’s plan to improve her sales. The Third Respondent stated that she was concerned that the Applicant had not given them any indication that she was likely to do that. She was also concerned that the Applicant thought that they had something against her, when the reality was that their main concern was with the financial situation of the business, and the sense they both had that she was not willing to step up her financial performance.
In cross-examination, the Third Respondent agreed that she was angry with the Applicant at the meeting and that her tone was, in hindsight, unsatisfactory. She agreed that she spoke very aggressively to the Applicant. She agreed that she probably crossed the line in this conversation. When asked if what she meant in terms of her statement that the Applicant was “going down a very dangerous road” and that she was going to force her into a “situation” that if things continued she was going to have to look at dismissing the Applicant, the Third Respondent said, “I didn’t think that at all”.[78] She agreed that her reference to ‘stupid little letters’ could possibly have referred to the letter alleging pregnancy discrimination. When asked what she meant by the statement, “You’ll force us into a situation that we don’t want to be in”, she stated, “Maybe just closing up shop. Maybe just closing up shop altogether.”[79]
[78] Transcript of proceedings, 10 October 2013, p.280 at lines 1, 4 and 7.
[79] Transcript of proceedings, 10 October 2013, p.282 at lines 37-38 and 43-44.
On 15 September 2012, the Third Respondent sent the Applicant and Mr K Piccoli the following email:
In readiness for Tuesdays [sic] meeting can you prepare the following:
1. Your detailed plan as to how you propose to reach your required $10,000 weekly target and all your previous plans for 2012
2. One original new marketing idea that the studio has not yet tried
3. A list of all clients who have not yet finalised their orders
4. A list of all clients you have followed up for referrals and the outcome
5. A list of all clients you have not followed up for referrals.[80]
[80] Affidavit of Christine Mary Piccoli filed 16 September 2013, Annexure “CMP-32”.
The meeting of 18 September 2012
On 18 September 2012, the Applicant, the Third Respondent and
Mr K Piccoli had the usual Tuesday morning meeting. The Applicant provided a document entitled “My plan”[81] which she had produced in response to the Third Respondent’s previous email. The Applicant, in her evidence, stated that Mr K Piccoli had not prepared any document for the meeting. In her evidence, the Third Respondent stated that
Mr K Piccoli had provided a verbal plan at the meeting.
[81] Affidavit of Samantha Jane Sagona filed 1 August 2013, Annexure SJS-65.
At the meeting, the Third Respondent tabled a document entitled “Meeting 11/9/2012 PICCOLI PHOTOGRAPHY”[82] which she stated was a file note of the meeting that took place on 11 September 2012. The document stated that the Applicant had:
·Agreed that she was required to meet the $10,000.00 sales target every week;
·Agreed to work “whatever hours it took” to reach the target;
·Been informed by the Respondents that she should work two nights a week, or a Monday, in order to meet the sales target;
·Agreed with the recommendation that she should work two late nights a week or a full Monday until the target was reached and was committed to improving her attitude rather than making excuses.
The Applicant stated that the file note did not reflect what had transpired at the 11 September 2012 meeting and she was concerned that the Respondents were seeking to fabricate evidence that she had agreed to the content of the variation document when she had not.
[82] Affidavit of Samantha Jane Sagona filed 1 August 2013, Annexure SJS-67.
In her oral evidence, the Third Respondent agreed that they were, in fact, two different minutes produced for the meeting on
11 September 2012. She could not recall why there were two versions of the minutes but seemed to remember that, after speaking to the Second Respondent and Mr K Piccoli, she decided to elaborate more. She could not recall if the Applicant had stated at the meeting on
18 September 2012, that the minute tabled was not an accurate note of the meeting. The Third Respondent stated that she understood that the Applicant had agreed to the terms she had proposed at the meeting on 11 September 2012, because the Applicant nodded when she was speaking about it and that she had “said a quiet “yes””.[83]
[83] Transcript of proceedings, 10 October 2013, p.287 at line 44.
The events of 20 September 2012
The Applicant was absent from work on 19 September 2012. On
20 September 2012, she attended work and gave the Third Respondent a letter stating that she was terminating her employment contract.[84] The Applicant stated that she felt she had no alternative than to immediately resign from her employment. She stated that her reasons for this included the extreme stress and anxiety she was experiencing as a consequence of the conduct of the Respondents, and the impact that this stress was having on her health, and her concerns about the impact of this stress on her unborn child.
[84] Affidavit of Samantha Jane Sagona filed 1 August 2013, Annexure SJS-71.
The Applicant further stated that the Respondents were still demanding that she achieve unachievable weekly sales and were stating that her remuneration was contingent upon meeting those sales targets. She also believed that, if she continued in her employment, the First Respondent would seek to enforce the terms of the variation document and reduce her remuneration regardless of the fact that she had refused, in writing, to agree to those terms. The Applicant also believed that the
Second and/or Third Respondents were fabricating documents and that their unreasonable conduct included bullying and intimidation. She considered that her relationship with the Respondents had now deteriorated beyond repair and they could no longer work together.
The Third Respondent stated that she did not read the letter immediately when it was presented to her. Shortly afterwards,
Mr K Piccoli came upstairs and informed her that the Applicant had requested him to do her shoot, which was unusual as these were
long-term clients of the Applicant. Mr K Piccoli was having an anxiety attack and told her he was quite distressed. At that point, she read the Applicant’s letter. She understood that the Applicant was resigning but did not believe that she could simply leave without notice. At about 10.30 a.m., the Third Respondent called the Applicant on the intercom and asked why she had asked Mr K Piccoli to do her shoot.
The Applicant stated that she did this because she would not be there to see them for the viewing. The Third Respondent told her that it was business as usual until she finished up. The Applicant referred the Third Respondent to her letter. The Third Respondent told her that nothing had changed, that it was business as usual and that she had an obligation to present and to perform her required duties as usual and meet the conditions of her agreement.
The Applicant recorded this conversation. The Third Respondent is recorded as stating:
We feel that if the figures haven’t been met, we are coming from that angle, and that’s your obligation to meet them. You know, if you haven’t, um, met your obligations, then that’s not our responsibility it’s yours. You know, and it’s not because of any pregnancy issue I mean we’ve been just as hard on Kristian, so it’s got nothing to do with that and you said yourself that your pregnancy wouldn’t effect the situation. It wouldn’t effect your performance.
The Applicant responded, “And it hasn’t”.
The Third Respondent replied, “Well I believe, I beg to differ…”.[85]
[85] Affidavit of Samantha Jane Sagona filed 1 August 2013, Annexure SJS-74 at p.3.
At around 6.00 p.m. on 20 September 2012, the Applicant informed the Respondents that it was her last day and that she would not be returning to work. The Third Respondent stated that if she wanted to leave, it was her choice and she was making her own decisions. The Applicant was requested to send an email confirming that it was the last day of employment. During the course of this conversation, the Second Respondent, on more than one occasion, stated that he believed that the Applicant had been setting them up; that they knew the “little games [she was] playing behind the scenes”;[86] and that this had been her plan all along.
[86] Affidavit of Samantha Jane Sagona filed 1 August 2013, Annexure SJS-76 at p.1.
In cross-examination, the Third Respondent also stated that she thought they were being set up and that the Applicant’s ultimate objective was to get more money out of the business. She later stated with reference to the other staff, “Everyone conspired together. It was a nightmare”.[87]
[87] Transcript of proceedings, 10 October 2013, p.294 at line 38.
The state of the business and the Applicant’s position
Around the time that the Applicant and Mr K Piccoli commenced to work as photographers and salespeople rather than simply as photographic assistants, the Second Respondent asked the
Third Respondent to put together an outline for a proposed incentive scheme. The scheme provided for the years 2002-2005 and set out incentives ranging from 5% to 12.5% of sales where they were involved as the photographer, and from 2% to 6.5% of sales where they were assisting. Handwritten, on the document, with respect to the years 2004 and 2005, are the words, “10% of profits”.[88] It was the
Third Respondent’s evidence that the Second Respondent had asked her to write ‘10% of profits’ on the document to illustrate what the Applicant and Mr K Piccoli could earn if they met their targets. The
Third Respondent stated that they had never been any agreement or commitment about profit share with either the Applicant or
Mr K Piccoli.
[88] Affidavit of Christine Mary Piccoli filed 16 September 2013, Annexure “CMP-1”.
In this case, the Applicant had been employed by the Respondents for a period in excess of 12 years. The evidence establishes that the Respondents intended that the Applicant and Mr K Piccoli would,
in 2013, take over the day-to-day operations of the business. Absent the Applicant’s pregnancy, it is reasonable to assume that the employment would have continued until such time as the Applicant chose to terminate it. In this case, the situation is complicated by the fact that both the Applicant and the Respondents were aware that the Applicant would spend some time out of the workplace as a result of taking maternity leave and the fact that the Respondents wished to withdraw from the day-to-day management of the business.
I am satisfied, on the evidence before me, that had the Respondents not refused the Applicant the ability to return to work after the Christmas break, and also refused her the opportunity to return on a part-time basis, she would have returned to the business at the end of the summer vacation and worked until two weeks prior to the expected date of delivery. There is no evidence to suggest that the Applicant would have been unfit to work between 29 January and 5 March 2013. On the contrary, it appears that she worked until 11 March 2013 in her alternative employment with Ripe. It was the Applicant’s original intention to resume work after three months maternity leave on the basis that she would work four days a week although no time limit was put on how long this part-time work would continue. I consider it reasonable to assume that if she had resumed work on 1 July 2013 she would have worked on a part-time basis until the end of 2013. She would then have resumed her employment on a full-time basis after the summer break into 2014.
On that basis, I am satisfied that the lost remuneration up until the end of 2013, calculated on the basis of her expected earnings, being her usual remuneration until 5 March and 80% of that from 1 July 2013, minus the amount earned (in both wages and superannuation) is $48,110.00.
I do not consider it appropriate to deduct either the long service leave paid on termination or the parental leave payment made as these would have been paid to her in any event. Her lost remuneration after the beginning of 2014 can reasonably be assessed as $123,000.00 per annum. I make no allowance for profit share as there is no reasonable basis to assume that such would have eventuated.
The Applicant now intends to work as a photographer in her own business. It will take some time for her to build up that business. Even if she were to be employed as a photographer, the evidence shows that her likely earnings would be in the vicinity of $55,000.00 per annum.
The Applicant submits that the calculation of future loss should be based on an expectation that the employment would have continued until the Applicant was age 65. I do not think that that is a reasonable assumption. Given the ages of the Respondents and their keenness to withdraw from the business, it appears to me to have been inevitable that the business would, at some point, have been transferred to the beneficial ownership of the Applicant and Mr K Piccoli, if it had been successful, or have been wound down if they were not successful in their stewardship. One way or the other it is reasonable to assume that the future would have been known by the end of 2015.
On that basis I am prepared to assume a future loss of $136,000.00. I accept that a deduction should be made for contingencies and I see no reason why the usual figure of 15% should not be applied. This gives a figure of $115,600.00. The total economic loss (including the claimed medical expenses) is therefore $164,097.00. For the reasons given by Barker J in Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526, I do not consider that s.547 of the Act is applicable and I make no order for interest.
Section 545(2) of the Act allows the Court to award compensation in respect of non-economic loss for distress, hurt or humiliation. I accept that the Applicant suffered stress as a result of the Respondent’s treatment of her and that she required medical treatment for this. In particular, the abusive nature of that treatment, in my view, warrants compensation for distress, hurt and humiliation. In the circumstances of the case I consider an amount of $10,000.00 to be neither excessive nor derisory.
Penalty
The Applicant seeks the imposition of penalties against each Respondent and an order that the penalties be paid directly to her. The maximum applicable penalty for each contravention is $33,000.00 for a body corporate and $6,600.00 for an individual. It is submitted that the penalties should be at the upper end of the scale given that:
(a)the contraventions were deliberate, involved the directors and managers of the First Respondent, and were done in knowing violation of the Applicant’s rights. The Respondents’ knowledge can be inferred from the fact that they saw a lawyer during the dispute and the content of the Applicant’s 10 September 2012 letter;
(b)the Respondents have not shown any contrition or taken any corrective action. Indeed, for 10 months (since the filing of the claim) they have made denials which they must have known were false. They also gave evidence at the trial that they must have known was less than the truth … Rather than apologizing for their conduct, the Respondents have continued to blame the victim, accusing her of ‘setting them up’ even to the very end of the trial;
(c)the contraventions are serious, and the court needs to signal its disapproval of pregnancy discrimination and deter other businesses (particularly small businesses) from engaging in similar behaviour;
(d)the contraventions had serious consequences for the Applicant. While an award of compensation will remedy some of her economic losses, it will not make good other losses (such as legal costs), and any monetary award for non-economic loss by definition cannot fully redress the mental anguish inflicted on the Applicant and her family …
(e)the level of the penalty must be ‘meaningful’ in order to achieve the objective of punishing the Respondents. In the case of the First Respondent, the evidence was that it owns nine investment properties, including a large three-storey studio in Richmond, and it has 80% of the equity in those properties … It also owns a successful photography studio with sales (in 2010–11) of $1.16 million and pre-tax profit of $557,000.00 . . .
It is accepted that the Court should aggregate contraventions that arise out of a single course of conduct by a Respondent. This principle protects a person who engages in a course of conduct involving multiple breaches of a single legal prohibition from facing several penalties; it does not operate where a course of conduct results in breaches of different legal rules. In that case, each breach should be punished separately, subject only to the application of the totality principle.
In this case, the Applicant alleges breaches of two different provisions of the Act: s340 and s351. If separate contraventions are established . . . then two separate penalties should be imposed.
The Respondents submit that:
[I]f the Court is considering imposing a penalty upon them, the following considerations are relevant to whether such a penalty should be imposed, and also to the size of that penalty if one is decided upon. The Respondents submit that either no penalty, or a very small penalty, should be ordered for the following reasons:
(a)the Respondents’ (sic) were going through a stressful period for financial and personal health reasons so their actions were borne out of stress rather than malice;
(b)the business has suffered financially as a result of the Applicant’s departure and the Respondents’ focus on this case, and is reduced to a skeleton staff of Mr and
Mrs Piccoli, Kristian and a retoucher . . .
(c)the business is a small family business and has no human resources department and the Act accepts that in other areas . . . very small businesses should not face the same punishment as large businesses because of their lack of resources and expertise to deal with these issues to the same standards as large companies do;
(d the Applicant was part of the management team and could be expected to play a part in assisting the Respondents’ (sic) to comply with their legal obligations, particularly in light of the fact that she was planning to take more responsibility in the business in the near future;
(e)there was no exploitation of an information-based power imbalance that is often present in employment relationships, to the contrary, the Applicant was married to a lawyer and had a far clearer picture of the requirements of the law than the Respondents had during the relevant period;
(f)Mr and Mrs Piccoli will retire soon, so considerations of individual deterrence are not relevant.
Further, the Respondents submit that the considerations that influenced the Court in Corke–Cox v Crocker Builders Pty Ltd in awarding a penalty of $5000 in a matter involving discrimination on the basis of a WorkCover complaint, such as the deteriorating relationship between the parties, are also relevant in this case.
. . .
The Respondent’s [sic] further submit that if any breaches of the Act are found, the Court should find that such breaches are part of a single course of conduct, and that if any penalty is appropriate, only a single penalty ought be imposed. If the Court finds that any breaches are not part of a single course of conduct because they arise under separate provisions of the Act, the fact that they involve the same conduct is relevant to the penalty imposed for each breach.[182]
[182] Defendants’ Written Submissions filed 4 November 2013, pp.39-40 at paras.108-110.
Consideration with respect to penalty
The factors the Court should take into account in determining an appropriate penalty for contravention of the Act were set out by Mowbray FM in Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7. The appropriate principles are set out below, however such principles are not mandatory or exclusive, but provide guidance to the Court:
·The nature and extent of the conduct which leads to the breaches;
·The circumstances in which the conduct took place;
·Whether there had been similar previous conduct by the Respondent;
·Whether the breaches were properly distinct or arose over the one course of conduct;
·The size of the business enterprise involved;
·Whether or not the breaches were deliberate;
·Whether senior management was involved in the breaches;
·Whether the party committing the breach has exhibited contrition;
·Whether the party committing the breach has taken corrective action;
·Whether the party committing the breach has co-operated with enforcement authorities;
·The need to ensure compliance with minimum standards; and
·The need for specific and general deterrence.
The nature and extent of the conduct; the circumstances in which the conduct took place; and the nature and extent of the loss or damage sustained by the Applicant
The Applicant had been employed by the Respondents for a period in excess of 12 years. She had a reasonable expectation of ongoing employment; indeed, she had an expectation that, in the near future, she would be managing the business with Mr K Piccoli. As a result of the actions by the Respondents, the Applicant was unable to continue her employment and, as a photographer, she will be starting out again in her chosen profession. The Respondent submits that some consideration should be given to the fact that the Respondents were concerned, at the time, by the state of the business and the health of the Second Respondent. There was no evidence presented with respect to the Second Respondent’s health although it was clear that he wished to retire, or at least semi-retire, in the near future.
The Respondent’s concerns for the business and for the impact of the Applicant’s pregnancy on their own plans does not, in my view, excuse the conduct in which they engaged. The proposals being put by the Applicant were quite reasonable ones in the circumstances of a
long-standing employee who wished to take a short period of maternity leave and return to the business. It appears that the Respondents obtained some form of advice but they clearly did not give great consideration to the matters being put by the Applicant and to her warnings that their actions may be unlawful.
Further, the aggression and abusive language used by the Third Respondent in discussions with the Applicant is inexcusable.
Whether the breaches were deliberate; and whether senior management was involved in the breaches
The breaches clearly involved senior management as the Respondents were both owners and directors of the business. Both of them were involved in the conduct which gave rise to the contraventions. The Applicant submits that the breaches were deliberate. The Respondent submits that their actions were not born out of malice. I accept both of those submissions.
Whether the party committing the breach has exhibited contrition; and whether they have taken corrective action
The Respondents have shown no contrition with respect to their actions; indeed they continued to insist that the victim of the conduct was in fact the perpetrator and that they were ‘set up’ by her. I am satisfied that the Applicant did not embark on a course of action which was designed to ‘set up’ the Respondents. In my view, the Respondents have shown a remarkable lack of insight into their own behaviour and its impact on the Applicant. As far as I am aware, they have taken no corrective action.
The size of the business enterprise involved
The Respondent submits that, because this is a small business without any specific human resource management expertise, that the business should not face the same level of penalty as a large corporation. The Applicant submits that the contraventions are serious and that a penalty should be significant if it is to deter other businesses, particularly small businesses, from engaging in similar conduct.
Regardless of the size of the business or its financial position, an employer cannot be absolved of its legal responsibilities to comply with the law in relation to the employment of employees. I refer in particular to the decisions of Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14 and the decision of Driver FM, as he then was, in Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412. Further, the Respondents cannot hope to have their conduct, in effect, exonerated by the court merely because they claim to be impecunious (Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58).
Whether the breaches were properly distinct or arose over the one course of conduct
The Applicant submits that each breach should be treated separately and that separate penalties should apply for the breach of s.340 and the breach of s.351 of the Act. The Respondents submit that any breaches arose out of the same course of conduct and, while it may be appropriate to impose separate penalties for breaches of s.340 and s.351 of the Act, the fact that they arose in the same course of conduct is relevant to the level of the penalty imposed in each case.
I am satisfied that there was a single course of conduct which led to the constructive dismissal of the Applicant. I am satisfied that for the most part the conduct related to the contravention of s.351 of the Act with respect to discrimination on the grounds of pregnancy. I am further satisfied however, that the demand to work additional hours should be treated separately as a breach of s.340 of the Act with respect to the Applicant’s workplace right to refuse to work unreasonable additional hours of work.
The need to ensure compliance with minimum standards; and the need for general and specific deterrence
The Act represents a safety net of employment conditions. The Court has a responsibility to ensure that those conditions are observed and industrial instruments are enforced. It is particularly important that employees who are pregnant are able to avail themselves of the rights and protections afforded by the law. While the Applicant in this case was educated and articulate and had the benefit of being married to someone who had some legal expertise, I am cognisant of the fact that Mr McHeileh gave evidence that another member of the staff had been too scared to tell the Respondents that she was pregnant at the time she resigned.
The Respondent submits that there is no need for specific deterrence in this case as the Respondents intend to retire shortly. It is not clear when this may occur and the evidence of the Second Respondent was that he was continuing to work in the business which continues to employ his son and another employee.
In Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543, Lander J said the following with respect to the role of general deterrence:
In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of this seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 217.[183]
[183] (2007) 158 FCR 543 at pp.559-560
Similarly, in The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228, Finkelstein J said:
even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct: R v Thompson (1975) 11 SASR 217.[184]
[184] (2001) 108 IR 228 at pp.231-232
In this case I regard the conduct as being serious:
·First, the demand that the Applicant work ‘all hours necessary’ could only be an unreasonable demand and one which employers should be discouraged to make; and
·Second, the capacity for women to continue in employment during their pregnancy and to be able to continue with their career after having a child are matters which as a society we consider should be protected.
I consider that there is a need for general deterrence with respect to both of these matters and, in particular, with respect to employees employed in small businesses. The general approach of the Court in determining an appropriate penalty is to consider what might be appropriate with respect to each of the contraventions and then to apply what is referred to as the ‘totality principle’. The Court needs to consider all of the circumstances of the matter and the issue of proportionality in determining what is an appropriate penalty.
With respect to the contravention of s.340 of the Act, that is the failure to comply with the provisions of s.62 of the Act, I am satisfied that an appropriate penalty would be in the vicinity of 70% of the maximum allowed. With respect to the breach of s.351 of the Act, that is the discrimination on the grounds of pregnancy, I am also satisfied that a penalty in the vicinity of 70% of the maximum allowed is appropriate. That would provide for:
·
An aggregate penalty with respect to the
First Respondent of $46,200.00; and
·An aggregate penalty with respect to each of the Second and Third Respondents of $9,240.00.
The Respondents urged the Court to impose a small penalty, if any, on the basis that the business had suffered financially, and that the relationship between the parties had deteriorated significantly in the context of the discriminatory action. I have given consideration to those submissions. I am however persuaded that the fact that the Respondents consistently denied their liability and continue with a belief that the Applicant is the one at fault, cause me to consider that the penalties imposed should be meaningful ones and further, that in the circumstances of a case where costs are not an option, that the penalties should be paid to the Applicant.
In all the circumstances, I am prepared to allow some discounting of the penalties in aggregate on that basis that the total penalty for both contraventions payable by the First Respondent will be $45,000.00 and, by the Respondents, an amount of $8,000.00 each.
I certify that the preceding three hundred and eighty (380) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 30 April 2014
[181] Applicant’s submissions filed 28 October 2013, pp.12-14 at paras.49-51.
379