Sharman and Publications and Exhibitions Pty Ltd - [2008] WASAT 142

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: SHARMAN and PUBLICATIONS AND EXHIBITIONS PTY LTD [2008] WASAT 142

MEMBER: MS J TOOHEY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)

HEARD: 11 MARCH 2008

DELIVERED : 25 JUNE 2008

FILE NO/S: EOA 51 of 2007

BETWEEN: ZENA SHARMAN
Applicant
AND
PUBLICATIONS AND EXHIBITIONS PTY LTD
Respondent

Catchwords:

Equal Opportunity Act 1984 (WA) Discrimination on the ground of pregnancy Discrimination in employment Claim that the respondent created a working environment which lead to applicant being unable to work Burden of proving discrimination lies on the applicant Standard of proof is the balance of probabilities - Respondent's evidence preferred Claim not made out - Application dismissed

Legislation:

Equal Opportunity Act 1984(WA), s 10, s 11, s 89, s 90

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Williams and Commissioner of Police [2005] WASAT 349

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Ms Zena Sharman claimed that she was unlawfully discriminated against in her employment because of her pregnancy.
Ms Sharman claimed that when Mr Neil Boulos (on behalf of her employer, Publications and Exhibitions Pty Ltd) was advised of her pregnancy, his behaviour changed towards her and he created an environment that made her unhappy and unable to continue in her work.
Mr Boulos maintained that the problem was with Ms Sharman because she was avoiding an important part of her work, that of debt collection. He said that he had expanded the business, and as a consequence, his outgoings had increased. This made efficient debt collection critical to the viability of the company, and Ms Sharman was not completing that task to the required standard. The situation was exacerbated by the fact that Ms Sharman was taking sick leave, she said, because of the stress and anxiety caused by the environment at work which made her pregnancy difficult.
Mr Boulos was not opposed to Ms Sharman taking some leave because of her pregnancy but he stated that she did not let him know of the expected duration of the leave so that he could make alternative arrangements for her work.
The Tribunal preferred the evidence of Mr Boulos to that of Ms Sharman.
The Tribunal found that Ms Sharman disliked the task of debt collection and that she favoured sending reminder notices to debtors rather than the more direct telephone contact preferred by Mr Boulos. She did not follow the direction of Mr Boulos to spend more time on debt collection.
The Tribunal found that the combination of a growing business, the attendant pressure in the debt collection part of Ms Sharman's work in which she was least capable, and the natural course of her pregnancy (in the context of her having a child in a new country) produced a level of stress with which Ms Sharman was unable to cope.
The Tribunal found that although Ms Sharman was aggrieved by her circumstances, this was not as a consequence of any discriminatory conduct on the part of Mr Boulos.
The Tribunal dismissed her claim.

Background

The applicant, Zena Sharman, alleges unlawful discrimination on the ground of pregnancy in her employment with Boulos Enterprises Pty Ltd (now Publications and Exhibitions Pty Ltd) (the company), contrary to s 10 and s 11 of the Equal Opportunity Act 1984 (WA) (the Act).
These proceedings arise from what Ms Sharman alleges occurred in the period from the end of February 2007, when she advised Mr Neil Boulos, a director of the company, of her pregnancy, and early June 2007, when she took extended sick leave.
Ms Sharman lodged her complaint of unlawful discrimination with the Commissioner for Equal Opportunity (Commissioner) on 6 June 2007.
On 28 August 2007, the Commissioner dismissed the complaint under s 89 of the Act on the basis that it lacked substance. Ms Sharman required the Commissioner to refer the complaint to the Tribunal pursuant to s 90 of the Act, and this was done on 18 September 2007.
At the time of the hearing, Ms Sharman's employment status with the company was not entirely clear. She had not returned to work upon taking sick leave from 5 June 2007. She had applied for maternity leave on 3 October 2007 but this had not yet been accepted by the company.
Ms Sharman and Mr Boulos provided the Tribunal with written statements and submissions. At the hearing on 11 March 2008, the Tribunal heard oral evidence from Ms Sharman, Mr Boulos (on behalf of the company), Mr Matthew Foulsham, a sales executive with the company, and Mr Roger Nicholas, administration manager with the company.
Mr Andrew Sharman, Ms Sharman's spouse, provided a written statement to the Tribunal but did not give oral evidence.

The claim by Ms Sharman

Ms Sharman was employed by the company as "Administration Manager" on 11 May 2006.
The duties of her position were described by Mr Boulos (and not disputed by Ms Sharman) as invoicing, sales figures control, debtors control, answering telephones, handling general enquires, preparation and banking of bank deposits, assisting with the maintenance of databases as required, and general secretarial and administrative duties.
Ms Sharman alleges that, upon Mr Boulos becoming aware of her pregnancy around the last week in February 2007, she noticed a dramatic change in his behaviour towards her. She alleges that Mr Boulos created an environment at work designed to make her sufficiently unhappy and frustrated so as to resign from her employment. She submits Mr Boulos did this as a consequence of her pregnancy.
The conduct complained of, according to Ms Sharman was:
•that Mr Boulos gave her things to do outside of her job description, and as a consequence, her own duties were neglected, for which she was unfairly criticised;
•she was on sick leave for the period 10 May 2007 to 18 May 2007 due to problems with her pregnancy. She informed the office of her leave by telephoning on Thursday 10 May 2007 and leaving a message with a member of staff that she was having two days' sick leave. Mr Boulos reacted by making incessant calls to her residence to which she did not respond as her doctor had advised complete rest. Mr Boulos had then contacted her husband several times on his mobile telephone and threatened that if she did not contact him, he would advertise her position and she would no longer have her job. The behaviour of Mr Boulos affected her badly and she experienced bleeding on the weekend of 12 and 13 May 2007. She saw her doctor who advised her to take two further weeks' sick leave. She contacted the office on Monday 14 May 2007 and spoke with Mr Foulsham. She advised him that she would be taking extended sick leave and that she would send in the required medical certificates;
•when she returned to work on 21 May 2007, she provided relevant medical certificates including one from 18 May 2007 which specified that her health was affected due to her pregnancy and stress at her work, and that she was given two weeks' rest. She says that she was requested to provide medical certificates whilst other employees were not;
•it was the usual practice on each Friday for sales and administrative staff to leave one hour early. On a particular Friday (25 May 2007), Mr Boulos did not allow her to leave early and initiated a confrontation with her that resulted in a heated discussion between them. This led to increased stress levels and an anxiety attack for which she sought medical attention the next day. She says she suffered bleeding, breathlessness, sleepless nights, severe headaches and a loss of appetite;
•on Monday 28 May 2007, Mr Boulos approached her to discuss what had happened on Friday 25 May 2007. She refused, given the distress it had caused her, and instead chose to get on with her work. As it turned out, Mr Boulos reprimanded her for a backlog in debt collection which she did not consider her responsibility because of her time away with sick leave and because Mr Boulos had her working on a research job with another staff member. That day, Mr Boulos constantly monitored her debt collection activities but did not question the sales manager who had not performed well in his work;
•on 30 May 2007, the keys to the office which she had by virtue of her position as administration manager, were taken from her (keys to the lift, main door, server room and post box). On the same day, she was given a letter by Mr Boulos which contained unfair allegations and in which she was given a "last warning" to improve her performance otherwise her employment was in jeopardy.
As a consequence of these incidents, Ms Sharman took stress leave and has not returned to work. She says she was unable to cope with the pressures of her workplace and unable to function productively in what she believed was an unhappy environment.
Ms Sharman states that she had a good working relationship with Mr Boulos prior to February 2007. There had not been formal discussion about her work, but rather, issues would be discussed on a day‑to‑day basis. There was nothing in her view to indicate that she would be given a warning letter on 30 May 2007.
Ms Sharman accepts that prior to her notifying Mr Boulos of her pregnancy, Mr Boulos had told her a number of times that the debt recovery function was not being carried out to the required standard. She says that debt recovery was discussed as well as her other duties, including, at that time, assisting a new employee in her work.
Ms Sharman states that she did not avoid the debt collection task as asserted by Mr Boulos. She says that Mr Boulos had asked her to complete two assignments at the same time and she was told they were of equal importance.
"… One assignment was important because the sales staff needed to start selling and bringing in more money into the company, and the debt collection was cheques coming into the company for sales that have already occurred. So the new assignment would have encouraged new sales and more business for the company. So when I did see that, you know, he was consistently saying debt collection, I decided ‑ and that was his main concern, I decided to drop the database, because there was already someone employed to do the database, I was going that extra mile to do the database, which is a job by itself." [T:17]
Ms Sharman says that when she was undertaking the two assignments, she would sit with the new employee in the morning to ensure that person had work to do, and then later, she would send out notices of outstanding payments to debtors.
"… All I didn't do towards that collection was make phone calls, but I was constantly sending people reminders to pay their bills." [T:19]
Ms Sharman accepts that she was directed by Mr Boulos in the week commencing 21 May 2007 to spend two to three hours a day chasing outstanding invoices until the debtors were brought under control.
Ms Sharman states that she would usually be left to do her own work, but in the week of 21 May 2007, Mr Boulos questioned and checked her "all the time" about what she was doing. She says that she had just returned from sick leave and she was worried about her unborn child. She says she was doing her work, that she was putting all her time into debt collection and that Mr Boulos should have trusted her as he had done previously.
When Mr Boulos' contention that she had not devoted two to three hours a day on the debt collection was put to her, Ms Sharman said:
"Well, I did debt collection in a different way, I sent out invoices, I rang people I could, because they were also in the eastern states. A few WA calls were made in the afternoon. I did the debt collection in a different form, I sent out reminders, I wrote them letters." [T:28]
She said further:
"Yes, I started working on [debt collection], but then [Mr Boulos] clubbed in different responsibilities, I never ignored it deliberately. You knew what I was doing, every day I told you what I did. Good, try tomorrow we do it ‑ I mean ‑ and then when I came back on the 8th we did debt collection, but then you had a meeting with me and you said, no, I can't employ anybody, you'll have to do the debt collection, you'll have to do the mine sites, you have to get the orders out every day. And I was confused, I could only do my best. My pregnancy was not an issue at that time, I was not making my pregnancy an excuse that I couldn't do it. I was doing my best. When orders went out, you always explained that was money coming in, so the orders had to go out. There were so many other sales staff, I did the orders every week." [T:28]
Ms Sharman submitted a written statement from her spouse which states that he received telephone calls from Mr Boulos on 10, 11, 14 and 15 May 2007. Mr Boulos is said to have spoken with a forceful attitude and threatened that if Ms Sharman did not communicate with him then her services would no longer be required and he would advertise her position. Mr Sharman further states that Mr Boulos telephoned him on 25 May 2007 and advised that he and Ms Sharman had argued and she would likely be in an unpleasant mood.
Mr Sharman states that Ms Sharman's work environment caused her anxiety during her pregnancy. Mr Boulos was allegedly aware of a "threatened miscarriage" at work on 21 May 2007 but continued to treat Ms Sharman unfairly.
In his statement, Mr Sharman states it was a shock for Ms Sharman to receive the letter of 30 May 2007 and it is his belief that her workplace environment changed as a way of getting her to resign from her employment once it was disclosed she was pregnant. Ms Sharman had not previously complained about her work.
The Tribunal did not have the opportunity to hear from Mr Sharman.
In her claim, Ms Sharman is seeking an apology from Mr Boulos, the withdrawal of the letter of 30 May 2007 and reasonable compensation for loss of wages ($16,150 for the period 4 June 2007 to 2 October 2007).

The respondent's case

Mr Boulos' evidence

Mr Boulos submits that the allegations by Ms Sharman are unfair and without substance.
Mr Boulos says that the most important part of Ms Sharman's work was that of debtors' control (which he accepts is a difficult task) because of the impact of cash flows on the viability of the company. Continuity of that function was also important.
Mr Boulos states that around the middle of February 2007, it had come to his notice that the debt recovery function was not being carried out to the required standard. He had to raise this matter on a number of occasions prior to being told Ms Sharman was pregnant, stating that he had to "nudge" Ms Sharman to chase the debtors from January onwards.
The function of debt collection had become more pressing about the middle of April 2007, as a decision had been made to expand the business of the company which had required the employment of an additional three staff and a consequent increase in costs. The cash flow of the company needed to be efficiently maintained.
Mr Boulos states that on 4 May 2007, he gave Ms Sharman explicit instructions to spend two to three hours a day on debt collection because her inattention to this task was, in his view, placing the viability of the company in jeopardy. Ms Sharman said she would start on the following Monday (7 May 2007).
Ms Sharman was absent on 7 May 2007, and when she returned on 8 May 2007, said that she had a terrible weekend with her husband's children and that she also had back pain. Mr Boulos says that on 8 and 9 May 2007, he again directed Ms Sharman to pursue the outstanding debts but that his direction was not followed.
When Ms Sharman did not attend work on 10 May 2007, she left a brief message that she would not be in that day but otherwise did not advise of the reason for her absence or its likely duration.
Mr Boulos states that on 10 May 2007, he telephoned Ms Sharman three times at her home. He left messages but did not receive a reply. He contacted Mr Sharman but was unable to obtain from him any information about how long Ms Sharman was expected to be absent.
Mr Boulos says that a telephone message would be received by office staff each day advising of Ms Sharman's absence on that day.
On 15 May 2007, Mr Boulos wrote to Ms Sharman about her leave, a copy of which is before the Tribunal. He had "no issue" with the leave but required a medical certificate to cover the period of the absence and a projected date of her return acceptable to her doctor. The letter also stated that Ms Sharman had taken sick leave in excess of her entitlements, detailed the balance of her entitlement to annual leave, and mentioned that she had been given five days of compassionate leave at the beginning of 2007.
Ms Sharman returned to work on 21 May 2007 without warning and provided medical certificates to cover the period of her absence.
Mr Boulos accepts that he monitored Ms Sharman's work on 23, 24, and 25 May 2007 when ordinarily he would leave his staff alone to do their work. He states that he was very concerned at the lack of productive work undertaken by Ms Sharman and the important debtors' function that he felt was being neglected. He says he told Ms Sharman to make telephone calls to the debtors to ensure prompt payment.
On 24 May 2007, Mr Boulos says that Ms Sharman asked him to pay out her annual leave entitlements as she was experiencing financial difficulties. He says that he agreed to her request and actually paid her a half a day above her entitlements as a gesture of his goodwill.
Mr Boulos says that he asked Ms Sharman to remain in the office on the afternoon of 25 May 2007 to discuss his concerns but was met with such hostility from her that nothing was achieved. Mr Boulos states that he was disturbed by the intensity of her outburst and that she said "you want to hurt my baby".
Mr Boulos states that he wrote the letter of 30 May 2007 because performance matters needed to be resolved. The letter raised his concerns about Ms Sharman's attitude towards him and the business; her allegation that she was unfairly treated when she was not allowed to leave early on 25 May 2007 and his view that she was deliberately avoiding the debt collection function. The situation with the company debtors had become "alarmingly critical". The letter gave Ms Sharman a "last warning" and Mr Boulos offered to meet with her or deal with any written response she might like to make.
Mr Boulos states that Ms Sharman did not respond to the letter of 30 May 2007 and that her last day of work was 1 June 2007. He says that she left the accounts in disarray, with a backlog of sales needing to be processed.
Mr Boulos states that during March and April 2007, Ms Sharman was training a new employee to take over the role of developing the company's databases, a task that Ms Sharman had been performing. This significantly reduced Ms Sharman's workload because the new employee was her full‑time assistant.
Mr Boulos states that Ms Sharman was never given a task outside of her job description nor was her workload excessive.
In respect of the matter of the office keys, Mr Boulos states that Ms Sharman was first issued with them because her working hours meant that she was the last to leave the office and would lock up. Sometime after becoming pregnant, Ms Sharman asked that her work hours change so that she could leave at 3.30 pm each day to give her time to exercise in the evening on the advice of her doctor. Mr Boulos agreed to the request and decided that it was appropriate for the new database manager to be given the keys. He says he asked that she keep the keys for the internal doors, including the safe room for the network server. Ms Sharman declined (Ms Sharman disputes that she said she did not want the keys).

Mr Boulos states that, according to other staff of the company, Ms Sharman had expressed concerns about her personal life including that her husband did not have consistent work, his children were disrespectful, and Australians were not welcoming to her. She questioned her decision to come to Australia.
Mr Boulos says that he rejects any suggestion that Ms Sharman was treated unfairly. She was given sick leave in excess of her entitlement, she received a significant pay rise in April 2007 (which he says, on balance, she deserved because, in general, she did a good job except for the debt collection), she was generally allowed to finish early on Friday afternoons and she had been given the use of Mr Boulos' family holiday home.
In addition, Mr Boulos states that allowances were made for Ms Sharman's pregnancy; he took over the banking and post office tasks because she found the walking difficult, and her work hours were changed to accommodate her need for exercise.
In response to the written statement of Mr Sharman, Mr Boulos states that he made contact with him to find out how long Ms Sharman would be absent from work so that, if necessary, alternative arrangements could be made. He says he was not threatening to Mr Sharman but did state that an advertisement for Ms Sharman's position appeared to be his only option. He says he wanted to alert Mr Sharman to his resolve to defend his position against whatever allegation Ms Sharman might make.
Mr Boulos states that it was his concern at the time that Ms Sharman was attempting to contrive a lengthy paid absence from work or invoke a reaction from him that would lead to the termination of her employment, although he now says that he believes Ms Sharman feels genuinely aggrieved.
Mr Boulos states that he eventually contracted a part‑time worker to temporarily fill Ms Sharman's position. The worker was able to return the debtors to an acceptable level, resolve all of the data issues and assist in improving the company's invoicing and accounts systems.
Mr Boulos states that at the time of the hearing Ms Sharman was still employed with the company and he had expected her to return to work sometime after the birth of her child.

Mr Foulsham's evidence

Mr Foulsham is a sales executive with the company.
He states that over the course of several months, Ms Sharman was "constantly negative" and complained that Mr Boulos was always in a bad mood. She said that Mr Boulos would expect her "to do all this work" even though she was pregnant. Ms Sharman would say she was unhappy with her family life and that people in Australia were rude.
Mr Foulsham states that Ms Sharman made many errors with the spelling of client names which impacted negatively on the performance of the sales team. (In his evidence, Mr Boulos states that he did not have an issue with Ms Sharman's accuracy on the database and that spelling errors more likely came from the sales team. He would have, however, expected Ms Sharman to have made contact with the sales personnel to alert them to the mistakes).
Mr Foulsham states that he remembers taking one call from Ms Sharman, almost certainly after she already had some time off work, during which she said she did not want to speak with Mr Boulos, that she would not be calling again and that Mr Boulos should not call her.
In response, Ms Sharman states that when she spoke with Mr Foulsham, she said that she had been advised to rest and that she would be sending in a medical certificate. She says she did not speak rudely to Mr Foulsham but accepts that her relationship with Mr Boulos was strained at the time and that she did not speak to him or he to her.

Mr Nicholas' evidence

Mr Nicholas is the administration manager with the company (he was previously business development manager).
He states that he worked with Ms Sharman for three days, and in that time, she made negative comments about her personal life and about how she felt living in Australia.
Mr Nicholas states that Ms Sharman represented her work as being difficult and time‑consuming. She would react defensively to any suggestions for improvement that he made. He says that when he undertook her duties when she did not return to work, he found many errors on invoicing and in general administration on client details and databases. He also found that debtors had not been contacted for sometime, and as a result, some of the outstanding debts needed to be referred to the company's external debt collector. Ms Sharman had not contacted the debt collector for two months which was a "shock to me".
Mr Nicholas states that he is able to complete Ms Sharman's duties "in less than half the time as well as carrying out additional duties".
In response, Ms Sharman disputes that she made any negative comments to Mr Nicholas about her personal life. She states that Mr Boulos did not like referring debts to the debt collector because that agency takes a percentage of any money recovered. She says that in the last meeting with the debt collector, no debts were referred.

Relevant legislation

Section 10 of the Act sets out the meaning of discrimination on the ground of pregnancy. The relevant parts provide that:
"(1)For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of the pregnancy of the aggrieved person if ‑
(a)on the ground of ‑
(i)the pregnancy of the aggrieved person;
(ii)a characteristic that appertains generally to persons who are pregnant; or
(iii)a characteristic that is generally imputed to persons who are pregnant,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who was not pregnant; and
(b)the less favourable treatment is not reasonable in the circumstances."
Section 11 of the Act concerns discrimination against applicants and employees. It provides that:
"(1)It is unlawful for an employer to discriminate against a person on the ground of the person's sex, marital status or pregnancy ‑
(a)in the arrangements made for the purpose of determining who should be offered employment;
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status or pregnancy ‑
(a)in the terms or conditions of employment that the employer affords the employee;
(b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
(3)Nothing in subsection (1)(a) and (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's sex, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides."

Findings and reasons

The burden of proving discrimination lies on Ms Sharman. The standard of proof is the balance of probabilities. The law does not require an intention to harm or discriminate. It is, however, necessary for Ms Sharman to demonstrate a causal connection between the ground of discrimination (in this case, her pregnancy) and the decision or act complained about (Williams and Commissioner of Police [2005] WASAT 349 at [34] to [38]).
The "balance of probabilities" can be stated as requiring the Tribunal to be satisfied "… on the evidence that the matter found to have occurred is more likely than not to have occurred …" (John Dyson Heydon, Cross on Evidence, Sixth Edition, 2000 at 248).
Ms Sharman is alleging that she was subject to unlawful discrimination by the company because once she told Mr Boulos that she was pregnant, his attitude and behaviour toward her changed, and an environment was created that made it impossible for her to continue working with the company.
Ms Boulos submits that the environment to which Ms Sharman refers was of her own making, in that she was avoiding a critical part of her work - that of debt collection. His behaviour was a response to his frustration at having, unsuccessfully as it turns out, to keep Ms Sharman on that task.
There is much in the evidence to support Mr Boulos' interpretation of the events that led to Ms Sharman not returning to work after 4 June 2007.
Ms Sharman acknowledges that debt collection was an important part of her work and, moreover, that Mr Boulos had, even before the announcement of her pregnancy, voiced his concern at the level of outstanding accounts.
The Tribunal is satisfied that Ms Sharman's debt collection process was not efficient enough to collect sufficient funds for the company at a time when Mr Boulos had expanded the business and consequently increased his cash outgoings. Her method of collecting debts emphasised the sending of reminders and was more passive than the cut and thrust of direct telephone contact with debtors which was favoured by Mr Boulos.
The Tribunal accepts that this was a critical time for Mr Boulos' business (the period from at least April 2007), and the pressure to chase debtors for cash to meet increased costs was high at this time relative to previous times.
The Tribunal is satisfied that debt collection was not Ms Sharman's preferred task in her job or the one at which she was most capable; she had computer skills and was most comfortable in the tasks where those skills were best used, namely the company's databases.
The Tribunal accepts that the behaviour of Mr Boulos to which Ms Sharman refers (the close monitoring of her work on the debt collection/the insistence on results), is something that occurs in the ordinary course of a small business that is under pressure to expand and to maintain its viability.
The Tribunal accepts the submission of Mr Boulos that Ms Sharman's response to these pressures exacerbated the tension in their relationship until it became untenable.
In particular, Ms Sharman's reluctance to clarify the nature and extent of her absences so that Mr Boulos could make alternative arrangements for the work to be done placed him in a very difficult position.
Ms Sharman displays an inconsistency in this area of her evidence. She states that when she telephoned the company on 14 May 2007, she said she had the relevant medical certificate and would post it to the office. The relevant medical certificate submitted by Ms Sharman is dated 18 May 2007. It states that Ms Sharman attended the doctor's surgery on 10 May 2007 and was given two weeks' rest. Ms Sharman could not have had a medical certificate when she contacted the company on 14 May 2007, and it was not unreasonable for Mr Boulos to try and contact her (and eventually her husband) to determine what was going on.
The Tribunal accepts that Mr Boulos tried to discuss his concerns with Ms Sharman and to find a way through the impasse (his evidence is that he generally found her work of a good standard, except for the debt collection). The pay rise, the letter of 15 May 2007 and the payout of Ms Sharman's holiday entitlements at her request on 24 May 2007 do not support the contention that Mr Boulos was committed to removing Ms Sharman from her employment.
In this context, the "last warning" letter of 30 May 2007 might be seen as somewhat pre‑emptive (there had been no other written warnings) but, even in that letter, Mr Boulos offered to meet with Ms Sharman or to deal with any written submission she might like to make. Ms Sharman did not respond to these offers.
The Tribunal finds that the combination of a growing business, the attendant pressure in that part of Ms Sharman's work in which she was least capable and the natural course of her pregnancy (in the context of her having a child in a new country) produced a level of stress with which Ms Sharman was unable to cope.
The Tribunal prefers the interpretation of Mr Boulos to that of Ms Sharman in the explanation of the events that led to Ms Sharman's claim.
In doing so, the Tribunal does not need to rely upon the evidence of Mr Foulsham or Mr Nicholas except to the extent that Mr Foulsham confirms that he took a call from Ms Sharman during a time of her absence from work, and also that both say that she spoke to them about some of her personal difficulties.
The Tribunal accepts that Ms Sharman felt genuinely aggrieved by her situation in that she was coping with her pregnancy at a time of increased work pressure. However, in all respects, Mr Boulos impressed the Tribunal as a reasonable employer.
It is the finding of the Tribunal that the circumstances in which Ms Sharman found herself were not the product of discriminatory conduct by Mr Boulos.
Ms Sharman's claim is not made out and is therefore dismissed.

Order

1.The application is dismissed.

I certify that this and the preceding [93] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J TOOHEY, SENIOR MEMBER