Sheaves v AAPT Limited
[2006] FMCA 1380
•7 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHEAVES v AAPT LIMITED | [2006] FMCA 1380 |
| HUMAN RIGHTS – Discrimination on grounds of sex – discrimination on grounds of pregnancy – direct discrimination – indirect discrimination – discrimination on return from maternity leave – breach of implied term of contract of employment – relationship of trust and confidence between employer and employee – company reorganisation – termination of employment – redundancies – no direct discrimination – disadvantage – reasonable in the circumstances – no indirect discrimination – no breach of contract – no breach of maternity leave provisions of workplace relations legislation – application dismissed. |
| Federal Magistrates Act 1999, s.3 Human Rights and Equal Opportunity Commission Act 1986, ss.46PH(1)(b), 46PH(1)(i) Sex Discrimination Act 1984, ss.4B, 5, 7, 7B, 7C, 8, 14(2), 106 Workplace Relations Act 1996, s.170KB, Schedule 14 clause 12 Federal Court Rules, O. 62 Federal Magistrates Court Rules 2001, Div 21.2 |
| Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd & Ors (1993) 46 FCR 310 Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 Sheaves v AAPT Limited [2004] FMCA 225 St Vincent’s Hospital Sydney Ltd v Harris [1998] NSWIRComm 235 Thomson v Orica Australia Pty Ltd (2002) EOC 93-227 Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 |
| Applicant: | FIONA SHEAVES |
| Respondent: | AAPT LIMITED |
| File Number: | CAG26 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 1 March 2005, 2 March 2005, 2 May 2005 |
| Date of Last Submission: | 7 September 2005 |
| Delivered at: | Canberra |
| Delivered on: | 7 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Sneddon |
| Solicitors for the Applicant: | Nicholas Dibb Solicitors |
| Counsel for the Respondent: | Mr R Moore |
| Solicitors for the Respondent: | Fisher Cartright Berriman Solicitors |
ORDERS
The application of 26 July 2004 be dismissed.
The applicant pay the respondent’s costs as agreed or taxed under Order 62 of the Federal Court Rules and calculated at 85 per cent of the costs payable under those Rules.
The Court certifies that this was an appropriate case for each party to be represented by counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG26 of 2004
| FIONA SHEAVES |
Applicant
And
| AAPT LIMITED |
Respondent
REASONS FOR JUDGMENT
The applicant, Ms Fiona Sheaves, claims that she was discriminated against by her former employer, the respondent, AAPT Limited, upon her return to work on 2 February 2004 leading to the termination of her employment on 2 April 2004. She says the discrimination was both direct and indirect on the grounds of sex and pregnancy. She asserts she is thus entitled to relief pursuant to the Sex Discrimination Act 1984 (the SDA).
Ms Sheaves also claims that AAPT breached a term implied into her contract of employment: that AAPT would not conduct itself in a manner likely to damage or destroy the relationship of trust and confidence between the parties as employer and employee. She further claims that AAPT breached the Workplace Relations Act 1996 (the WRA) requirement that Ms Sheaves was entitled to 52 weeks maternity leave and to return to the position she had before she took that leave.
AAPT contends that it did not discriminate against Ms Sheaves such that she should be given relief under the SDA. Nor is Ms Sheaves entitled to any remedy in the accrued jurisdiction of the Court for breach of contract or for breach of the WRA.
For the reasons set out below, I have concluded that the application should be dismissed with costs as there was no relevant discrimination under the SDA, nor breach of contract or of the WRA.
Relevant legislation
The SDA relevantly provides:
4B Meaning of potential pregnancy
A reference in this Act to potential pregnancy of a woman includes a reference to:
(a) the fact that the woman is or may be capable of bearing children; or
(b) the fact that the woman has expressed a desire to become pregnant; or
(c) the fact that the woman is likely, or is perceived as being likely, to become pregnant.
5 Sex Discrimination
(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 sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
(1A)To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.
(2)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3)This section has effect subject to sections 7B and 7D.
7Discrimination on the ground of pregnancy or potential pregnancy
(1)For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if, because of:
(a) the aggrieved woman’s pregnancy or potential pregnancy; or
(b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or
(c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant;
the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.
(2)For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are also pregnant or potentially pregnant.
(3)This section has effect subject to sections 7B and 7D.
7B Indirect discrimination: reasonableness test
(1)A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.
(2)The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.
7C Burden of proof
In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act.
8 Act done for 2 or more reasons
A reference in subsection 5(1), 6(1) or 7(1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.
14 Discrimination in employment or in superannuation
…
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential 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.
106 Vicarious liability etc.
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Divison 1 or 2 of Part II); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
Section 170KB of the WRA as in force at February - March 2004 provided:
Application of Schedule 14
The provisions of Schedule 14 have the force of law, in the same way as if they were set out in this Division.
Schedule 14 relevantly provided:
12 Return to work after maternity leave
(1)This clause applies when an employee returns to work after a period of Schedule 14 maternity leave.
(2) The employer must employ her in the position she held:
(a) if she was transferred to a safe job because of her pregnancy – immediately before the transfer; or
(b) if she began working part-time because of the pregnancy – immediately before she so began; or
(c) otherwise – immediately before she began maternity leave.
(3)If that position no longer exists but she is qualified for, and can perform the duties of, other positions in the employer’s employment, the employer must employ her in whichever of those positions is nearest in status and remuneration to the position referred to in subclause (2).
Background
The following matters appear to be accepted by both parties:
·
Ms Sheaves was employed by AAPT from 27 January 1998 to
2 April 2004
·she became pregnant in July 2002 and commenced maternity leave on 24 March 2003
·at that time she was employed as an account manager in the ACT Office of AAPT
·
there were two other ACT account managers at that date:
Ms Martina Webster and Mr Gordon Cobb
·Mr Paul Anderson (previously known as Mr Paul Eikrem) commenced as an AAPT account manager on 27 March 2003
·Ms Sheaves gave birth to a daughter, Ruby, in April 2003
·Ms Sheaves originally planned to return from maternity leave on 5 January 2004
·in November 2003 she made arrangements with AAPT to extend that leave until 2 February 2004
·Mr Cobb ceased employment with AAPT in about December 2003
·Ms Sheaves returned to work on 2 February 2004
·the other account managers in the ACT office at that time were Ms Webster and Mr Anderson
·about 25 February 2004 AAPT determined that the ACT work could only support two account managers
·AAPT through Mr Gregg Roy, its Sales Manager NSW and ACT, conducted an assessment to decide which of the account managers, Ms Webster, Mr Anderson and Ms Sheaves, should be retained
·none of these three employees were told that the assessment was being undertaken
·on 1 March 2004 Ms Sheaves was advised by Mr Roy that one account manager’s position in the ACT had been made redundant
·she was also advised at that time that her employment was to be terminated as a result of that redundancy
·
Ms Sheaves lodged a complaint with the Human Rights and Equal Opportunity Commission dated 30 March 2004.
The complaint was terminated on 29 July 2004
·the employment of Ms Sheaves was apparently formally terminated on 2 April 2004.
AAPT also accepts that the taking of maternity leave by a woman constitutes “a characteristic that appertains generally to woman who are pregnant or potentially pregnant”. It submits that clearly it is and can in appropriate circumstances constitute a reason for establishing direct and indirect discrimination on the ground of sex
Issues
The issues are:
·whether AAPT directly discriminated against Ms Sheaves on her return from maternity leave on grounds of sex or pregnancy
·whether AAPT indirectly discriminated against Ms Sheaves on her return from maternity leave
·whether AAPT breached an implied term in its employment contract with Ms Sheaves that it would not destroy or damage the relationship between them
·whether AAPT breached the WRA requirement that Ms Sheaves was entitled to return to the position she had before her leave was taken.
Evidence
Employment of Mr Anderson
It is not in contention that AAPT hired Mr Paul Anderson, who was known at that time as Mr Paul Eikrem, as a fulltime permanent account manager on 27 March 2003. What is in dispute is the reasons for employing him.
Mr Anderson deposed that he was employed by AAPT as a Senior Government Account Manager from March 2003 to November 2004, having been informed of the vacancy late in February 2003.
He discussed the vacancy with the ACT Sales Manager, Mr Stephen Poggio, by phone in March 2003 and was told he would be taking over Ms Sheaves’ accounts. He then visited Mr Poggio in Canberra who advised that the job would be permanent as he expected the business to expand with enough work for everyone.
Mr Anderson met in Sydney with Mr Gregg Roy, who was the Sales Manager NSW and ACT to whom Mr Poggio reported. Mr Roy told him he did not expect Ms Sheaves to return from maternity leave.
Mr Roy added “If she does, there won’t be a place for her. You’ll be keeping the accounts and the role permanently.”
When Mr Anderson commenced in the ACT Office on 27 March 2003 he claimed that Mr Poggio referred to a “real set to” he and
Ms Sheaves had before she went on maternity leave about her work on return. Mr Poggio said “Fiona has another thing coming if she thinks she’s returning. I regard her as a dark cloud in the office.”
Ms Marie Henderson commenced work in AAPT’s ACT office in January 2003 as a sales executive. She says that Mr Anderson was assigned a good portion of Ms Sheaves’ accounts. She described them as the “cash cows”. She asked Mr Poggio whether this was just while Ms Sheaves was on leave. He replied “No, it’s permanent”. On a later occasion Mr Poggio told her that there was no intention to put
Ms Sheaves back in her former role. He also said he would not have her back.
Under cross-examination Ms Henderson agreed that not all
Ms Sheaves’ accounts went to Mr Anderson. Some were given to both Ms Webster and Mr Cobb. Mr Anderson received the bulk of the accounts and the bigger ones. Mr Anderson’s position was a permanent and additional one. She also stated that Mr Poggio may have had a “grand plan to have four account managers”.
Mr Poggio disputed both Mr Anderson and Ms Henderson’s evidence. He said that they had misunderstood him on a number of points.
He denied that he had a “set to” with Ms Sheaves or that he had said she was a “dark cloud in the office”. He did agree that she had a negative or dampening effect on the Office. She also had a less sales oriented and more service oriented approach to her work. But these concerns were not such that he requested her employment be terminated, although Mr Poggio had passed them on to Mr Roy.
He deposed that he had told Ms Henderson that Mr Anderson had been appointed in a permanent role, not as a permanent replacement for
Ms Sheaves. He explained to a team meeting prior to Mr Anderson’s commencement that Mr Anderson’s appointment was based upon AAPT’s expectation of growth in its market share. He was also hired as a potential replacement for Mr Cobb who had indicated he was considering resigning.
Mr Poggio drew up a strategic plan in September 2002 in which he recommended two new sales executives to grow the business’ portfolio by bringing in additional clients. Two new executives were subsequently employed in January 2003, although ultimately they only brought in a minimal increase in revenue.
In March 2003 Mr Poggio had anticipated the ACT Branch workload for account managers would increase over the coming months. Based on this anticipated increase, the possibility of Mr Cobb resigning and Ms Sheaves’ absence Mr Poggio obtained approval to employ
Mr Anderson. He was not intended to replace Ms Sheaves. Mr Poggio expected to have three to four account managers in January 2004.
By that time he thought Mr Cobb would have left. It was Mr Poggio’s intention that Ms Sheaves would return from maternity leave to an account management role, although not necessarily with the same portfolio of clients. He denied using Ms Sheaves’ maternity leave to engineer a situation where there would be no position for Ms Sheaves to return to.
Mr Poggio said that AAPT chose to employ Mr Anderson permanently as they were looking for someone who would bring commitment to the role and who could be trained up throughout the period, someone whose employment would continue.
The growth that Mr Poggio hoped for the ACT Branch did not materialise due to the loss of the Centrelink account in about July 2003 resulting in a $11 million fall in revenue. Consequently the Centrelink account manager, Mr Cobb, resigned in late 2003.
Mr Gregg Roy held the position of Sales Manager NSW and ACT for AAPT from June 2002 to July 2004. He was responsible in part for the management and performance of the ACT Branch. He recalls
Mr Poggio commenting to him on the performance of ACT account managers. In particular Mr Poggio told him that Ms Sheaves was having a dampening effect within the Office and that she was less sales oriented and more service oriented.
Mr Roy testified that Mr Anderson’s position was a new one which had been created through the normal process because AAPT was looking to expand. When he met Mr Anderson prior to his appointment
Ms Sheaves was not mentioned at all. In particular nothing was said about what would happen when she returned, nor that she was not expected to return.
The employment of Mr Anderson close to Ms Sheaves commencing maternity leave was a coincidence. It was just after two new sales executives had been taken on and it was anticipated that AAPT would win new business. Mr Anderson was not employed as a temporary as they wanted a permanent who would bring the commitment to reinvigorate the Office and expand business. His position was not a replacement for Ms Sheaves. Further Mr Cobb had indicated he would be going. But as he did not leave, they had enough resources at that time.
Centrelink contract
A relevant issue in determining the reasons for Mr Anderson’s employment is when AAPT became aware that the Centrelink contract had been lost.
Mr Anderson says that it was common knowledge in the Office from about July 2003 that it had been lost. There had been earlier indications, but they were not advised formally until July. But he had been told by Mr Poggio on his very first day that he believed AAPT had lost the tender.
In her affidavit Ms Henderson stated that she became aware in March 2003 that AAPT had been unsuccessful in retaining Centrelink.
But under cross-examination she agreed that this was just conjecture at that time. However Mr Cobb had been very nervous about it. She said that the final decision of Centrelink was not actually conveyed to AAPT until around September 2003. They were not formally advised by letter until just before Mr Poggio’s resignation – November 2003.
Mr Poggio says that the account was lost in or about July 2003.
Mr Anderson was appointed at the time when the Centrelink contract was under tender. At that time AAPT was still preparing its response and intended to retain that business. He agreed that there were concerns among staff about its retention.
Mr Roy’s recollection was that first that they heard Centrelink was not renewing was about May 2003, with Centrelink not signing with Telstra until August. AAPT was in the tendering process when
Mr Anderson was employed. Mr Poggio had been 70 percent confident that AAPT would retain and grow the contract, although there was no guarantee.
It is clear from this evidence that at the time when Mr Anderson was employed in March 2003 renewal of the tender was still under consideration by Centrelink. No decision had been made. AAPT’s senior management was hopeful, perhaps confident, of success. There was some unease among staff, something to be expected with such a significant customer. But AAPT had reason to make employment decisions in the expectation that it would retain the contract.
Allocation of accounts on Ms Sheaves’ return from maternity leave
Ms Sheaves contends that prior to her return but following her notice of return AAPT made not attempt to allocate any government or other accounts to her and no procedure was adopted to allow her access to any account on her return. She was not permitted to return to her former duties which she asserts were being performed by Mr Anderson. This in itself amounted to unlawful discrimination. AAPT denies this.
Ms Sheaves was due to return to work on 5 January 2004. In early November 2003 she contacted Mr Poggio to postpone this to
2 February 2004.
On her return she phoned Ms Jessica Lakin who had interim responsibility for the ACT Office, Mr Poggio having left in November 2003. Ms Lakin told her that AAPT had not organised a reallocation of accounts as yet. She should therefore get her computer and email working and become familiar with the products on the intranet.
She should also help the other account managers.
As she heard no further from management that week she again spoke to Ms Lakin on about 9 February 2004. She was again told to continue helping other account managers. Ms Lakin may have said that she needed to talk the reallocation through with Mr Roy who had a better understanding of the issues. Ms Lakin agreed that Ms Sheaves might contact Mr Roy to follow up her concerns. She attempted to do this but without success. After she spoke to Mr Roy’s personal assistant, he returned her call.
Ms Sheaves says that Mr Roy said that perhaps accounts would not be returned from Mr Anderson to her. He told her that as management was in the middle of a reorganisation (the segmentation review) there would be no point in reallocating accounts until the review was completed. This was the first she had heard about the review. She was also told she should continue to help the other account managers.
Despite meeting with Mr Roy on about 16 February 2004, no accounts had been reallocated by 23 February 2004. Ms Sheaves said that it was possible that at the 16 February 2004 meeting with the three account managers Mr Roy had mentioned that depending on revenue there may need to be a change in the number of account managers.
But she could not recall.
Ms Sheaves stated that Mr Roy addressed the whole ACT Office on
16 February 2004. He indicated that a review was in progress.
He later met with the three account managers and told them that the review model set a target of $5 million for each corporate and government account manager. They were asked to draw up a revenue spreadsheet. Ms Sheaves was adamant that Mr Roy did not mention the possibility of redundancies at this meeting. But she accepted that she was told about the segmentation review.
Ms Lakin’s evidence on the two telephone conversations she had with Ms Sheaves in February 2004 broadly supports the substance of that of Ms Sheaves, although not surprisingly there is some difference in the detail. She deposed that the review or segmentation process was not only in the ACT Office. Ms Lakin was also responsible for the NSW Branch where a similar process was undertaken.
Mr Roy gave evidence on the reorganisation of AAPT following its merger with Connect Pty Ltd in August 2003. A new general manager, Mr Matt McGuire, was responsible for a review of the revenue and the account manager structure of the new organisation. In late January 2004 a model was developed requiring $5 million billed revenue per annum for each corporate or government account manager. The sales managers for each state and territory were to review revenues and apply the model to their offices. The ACT Office could only support two account managers as its revenue was then between $5 million and $10 million.
Mr Roy said that he held a meeting with all ACT employees on
16 February 2004 to discuss the model and the process to implement it. The Office would need to gather the necessary data on current and anticipated revenues. After this meeting Mr Roy met with the three account managers. He indicated it was possible that there may be downsizing with some employees being made redundant.
Mr Roy deposed that in early February 2004 he told Ms Lakin that pending completion of the review the current account allocations in the ACT Office would be maintained. Ms Sheaves should assist the other account managers whilst again becoming familiar with the current AAPT products. He emphasised that Ms Sheaves was not left with without work. It was not unusual for employees returning from extended leave, including maternity leave, to spend time refamiliarising themselves with new products developed during their absence. This was “always necessary”. Ms Sheaves “was given duties commensurate with somebody returning after a long break and being fair to them to allow her to come up to speed with all the different products and services, so she could do the job”. She was also directed to assist the other account managers.
Another reason Ms Sheaves was not assigned customers immediately was because other people were in the middle of relationships with those customers. AAPT had to be careful how it handled any changes. Accounts would not normally be allocated prior to a person’s return. The person had to be “part of the dialogue” about the mix of accounts allocated. Reintegration and retraining of a person such as Ms Sheaves who had been away for 12 months would take two to four weeks.
Ms Sheaves’ account of her telephone conversation with Mr Roy between 9 and 16 February 2004 broadly accorded with his recollection. He reiterated the review and explained that no reallocation of accounts would take place until it was completed.
Ms Sheaves was to be allocated portfolios when the model had justified the number of account managers for ACT. This did not become clear until the review process was completed in late February 2004 “when we’d done the number analysis”.
On this evidence AAPT’s reasons for not immediately allocating accounts to Ms Sheaves may be summarised as:
·the organisational or segmentation review was incomplete
·Ms Sheaves needed to retrain and refamiliarise herself with AAPT’s products and services, especially the new ones
·reallocation of accounts needed to be handled carefully because clients were “in the middle of relationships” with their current account managers.
The assessment of the account managers
Mr Roy’s evidence is that the segmentation review of the current and anticipated revenue stream for the ACT Office was finalised in late February 2004. It confirmed revenue of just under $10 million.
He therefore determined in accordance with the model that ACT could only justify two account managers not three. An assessment of the skills of the three account managers was then carried out to decide who should be made redundant. Mr Roy says he implemented the human resources assessment model utilised by AAPT to perform a skills evaluation of each of the account managers.
Mr Roy used an “Account Manager Evaluation Excel Spreadsheet” provided by AAPT’s human resources department to compare the relative competencies of Ms Webster, Mr Anderson and Ms Sheaves. The spreadsheet covered individual performance, sales and process skills/knowledge and behavioural competencies. When completing the spreadsheet Mr Roy considered three factors: the competencies, sales and performance data from the AAPT computer systems and the views expressed to him by Mr Poggio on the performance of the three account managers prior to his resignation. He compared his own observations with those of Mr Poggio.
The sales and performance data was the annual revenue as a percentage of target for both the month to date and the year to date and the summary of rating from the previous performance appraisal. For
Ms Webster and Mr Anderson this was for the year to June 2003.
For Ms Sheaves Mr Roy relied upon annual billed revenue for the year to date and month to date immediately prior to Ms Sheaves commencing maternity leave.
The individual sales performances were secondary to competencies. Sales data measured past performance and was used to make sure there were no anomalies in the competency evaluation. On the other hand sales orientation looked “at the competencies and the ability of the person going forward to be able to deliver the results and work in the environment that we’re currently in”.
Mr Roy assessed each account manager as similar in individual performance. They had the same annual performance rating. However differences emerged on competencies and skills. Ms Webster and
Mr Anderson were more sales oriented than Ms Sheaves. Ms Sheaves was service oriented. Mr Roy said that in the environment likely to prevail in the ACT Branch in 2004 a sales orientation was crucial.
Any revenue growth would have to come from existing accounts by “selling into the accounts”. Mr Roy’s assessed Ms Webster and
Mr Anderson as more likely than Ms Sheaves to perform “in this difficult sales environment”. Ms Sheaves exhibited a reluctance to embrace new initiatives while Ms Webster and Mr Anderson were more positive in their general outlook. Mr Roy thought they would make the better team. The evaluations therefore placed Ms Sheaves third.
Mr Roy completed his initial assessments on the afternoon of
25 February 2004. He reviewed them the next morning to ensure he had considered all relevant factors and then e-mailed them to
Ms Louise Guerin, the human resources consultant for the Northern Region.
Under cross-examination Mr Roy agreed that he had had only limited personal exposure to Ms Sheaves. Between July and September 2002 when Mr Poggio took over, he had a direct relationship. Before her maternity leave he had only known her for about nine months. When she returned he had not seen or heard from her for over 12 months. He had minimal contact with her after this, with only one meeting before
1 March 2004 on 16 February 2004. He had never observed her with clients nor in her day to day workplace activities.
Furthermore, Mr Roy agreed that neither Ms Sheaves nor the two other account managers were informed that they were being assessed.
Nor was she given the opportunity to discuss Mr Poggio’s comments with Mr Roy.
In January 2004 Ms Louise Guerin was the Human Resources Consultant, Northern Region, for AAPT. She became aware in January 2004 that a segmentation review was underway. She drafted the “Account Manager Evaluation Excel Spreadsheet” used in the ACT assessment relying on AAPT’s previously developed “Account Manager Competencies” document.
When she received the three evaluation spreadsheets for ACT on
26 February 2004 she queried with Mr Roy the lack of information on Ms Sheaves individual performance. She noted that Ms Sheaves had not been back long enough to have an ABR or “Annual Business Revenue” for that financial year (Mr Roy said ABR meant “Annual Billed Revenue”). She asked how Ms Sheaves was performing at the time she went on maternity leave which would be a better comparison. Mr Roy responded “Steves (Mr Poggio’s) views/rankings same as mine – he will validate. Last year she was 100% or thereabouts but did not sell anything”.
As Mr Roy intended telling Ms Sheaves the result on 1 March 2004, Ms Guerin arranged for an outplacement services company Hudson (TMP) consultant to be available to speak to Ms Sheaves.
Ms Guerin was questioned about the fairness of a process for
Ms Sheaves where different time periods for the individual performance information were used, and in view of Ms Sheaves’ recent absence. Ms Guerin responded that Ms Sheaves had previously worked for AAPT for some time and had had the opportunity to demonstrate her competencies in that employment.
Termination of employment
At the end of February 2004 Ms Sheaves says she was advised to attend a meeting on 1 March 2004 in Canberra with Mr Roy and
Ms Lakin. At that meeting Mr Roy told her that after looking at the accounts a decision had been made to abolish one of the account manager positions. AAPT had no choice but to retrench her. When she queried why she had been chosen, Mr Roy said “The decision has been made on skill sets”. Ms Sheaves was adamant that Mr Roy did not tell her that there had been an evaluation or assessment of each of the three account managers. They just said it was “on skill sets”.
She was told her last day was 5 March 2004 but she could leave as soon as she liked. She later read the letter that Mr Roy had given her. It said she could respond to AAPT’s proposal to terminate her employment by 4 March 2004 when AAPT would either confirm termination or take some other appropriate action. Ms Sheaves did not contact Mr Roy or Ms Lakin before that date but retained solicitors who wrote to AAPT on 4 March 2004.
Mr Roy’s account of the 1 March 2004 meeting is consistent with
Ms Sheaves except in one respect. He says, and she denies, that he told her that an evaluation had been made of each of the account managers working in the ACT Office. He said he did not provide her with a copy of the assessment about her on the advice of AAPT’s human resources that it was private and confidential. Ms Lakin who also was present at the meeting confirmed Mr Roy’s version of what was said.
Ms Sheaves employment was terminated on 2 April 2004 following a finding by this Court on 31 March 2004 (Sheaves v AAPT Limited [2004] FMCA 225) that Ms Sheaves remained in the employment of AAPT.
Direct discrimination
It is not precisely clear what acts Ms Sheaves regards as those that constitute the direct discrimination to which she takes offence. She appears to be contending that AAPT directly discriminated against her on the basis of her sex and pregnancy on her return to work on
2 February 2004:
·by the hiring on 27 March 2003 of Mr Paul Anderson on a permanent full time contract as an accounts manager
·by the failure to allocate any government or other accounts to her on her return from maternity leave on 2 February 2004.
But the hiring of Mr Anderson was on 27 March 2003, not after
Ms Sheaves returned to work. This was more than twelve months prior to the lodging of the complaint dated 30 March 2004 with the Human Rights and Equal Opportunity Commission. Section 46PH(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 gives the President the discretion to terminate complaints lodged more than twelve months after the alleged unlawful conduct.
While I am not persuaded that this places the hiring of Mr Anderson outside this Court’s jurisdiction, as put by Mr Moore for AAPT, it does suggest that the hiring of Mr Anderson was not one of the alleged unlawful acts the subject of the termination notice by the President under s.46PH(1)(i) of the Human Rights and Equal Opportunity Commission Act. This is confirmed by the letter of 29 June 2004 from the delegate of the President which did not mention Mr Anderson’s employment.
This conclusion does not mean that Mr Anderson’s hiring is irrelevant to Ms Sheaves’ claims. In my view it is one significant issue in the matrix, or one step in the chain, which must be examined when considering the termination of Ms Sheaves’ employment. I take
Ms Sneddon for Ms Sheaves to have agreed with this.
In the result, I understand that both parties are of the view that the Court should consider whether there was direct discrimination in:
·the termination of Ms Sheaves’ employment by AAPT on 2 April 2004
·
in the failure by AAPT to allocate any government or other accounts to Ms Sheaves on her return from maternity leave on
2 February 2004.
The latter of course is also a relevant consideration for the former.
Ms Sheaves’ claims rely on both section 5 – sex discrimination – and section 7 – discrimination on the grounds of pregnancy or potential pregnancy. Her complaints are essentially the same raising overlapping claims of sex and pregnancy discrimination.
The relationship between sections 5 and 7 were considered by Lockhart J in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd & Ors (1993) 46 FCR 310. At 327 – 328 he held that section 7 operates exclusively of section 5:
If the facts of a particular case concern an aggrieved person who is pregnant or who has a characteristic that appertains generally to or is generally imputed to pregnant women, in my opinion s 7 operates exclusively of s 5.
This approach was followed by Allsop J in Thomson v Orica Australia Pty Ltd (2002) EOC 93-227 at [169 – 170]. I will therefore consider this claim similarly, although I am of the view that my conclusions would not be different were I to consider the claims under section 5.
Section 7(1) refers to the aggrieved woman being treated less favourably than someone who is not pregnant or potentially pregnant. Thus a comparison must be made between the way in which the aggrieved woman is treated and the way in which a person without the relevant ground of discrimination is treated or would be treated in the same or similar circumstances. Who would be the appropriate comparator in this case? In my view it is an ACT account manager for AAPT who is not pregnant who took 12 months leave and had a right to return to their former position (see Thomson at [118 – 122]).
Was Ms Sheaves treated less favourably than such a notional comparator? This comes down to the following:
·would Mr Anderson have been employed had the comparator taken leave
·would the comparator not have been given any government or other accounts on their return from leave
·would the comparator have been retrenched.
Employment of Mr Anderson
Ms Sheaves contends that the evidence shows:
·Mr Anderson was employed as a fulltime permanent employee to do Ms Sheaves’ work while she was on maternity leave
·Mr Roy advised Mr Anderson that he did not expect Ms Sheaves to return from maternity leave
·AAPT did not have sufficient work to justify this additional account manager position – to justify four fulltime positions
·
no additional temporary employee was engaged to undertake
Ms Sheaves’ work while she was on leave
·the evidence of Mr Poggio that he expected growth in the market should not be accepted
·AAPT was aware at the time that its contract with Centrelink which was up for renewal was at risk
·AAPT knew it only had work for three account managers
·there would therefore be no position for Ms Sheaves on her return.
In summary Ms Sheaves says that Mr Anderson was taken on to permanently replace her, he was allocated all her accounts, AAPT did not have sufficient work to justify his employment, AAPT did not intend her to return and would have no job for her.
On the evidence I do not accept Ms Sheaves’ contentions. She relies principally on her own evidence and that of Mr Anderson and
Ms Henderson. She says I should not accept Mr Poggio’s evidence.
I do not agree. I found Mr Poggio a credible witness who appeared honest and straightforward in presentation of his evidence. This was corroborated in important respects by Mr Roy whom I also found credible. Given their positions in AAPT Mr Roy and Mr Poggio were in a better position to describe plans for the employment of
Mr Anderson and plans for the development of the ACT Office. Their evidence was plausible and persuasive. On the other hand,
Ms Henderson in particular seemed to resile from some material points when under cross-examination. To the extent that there is a conflict on factual matters I have accepted Mr Roy and Mr Poggio’s evidence.
Having regard to all the evidence and noting my comments above, I have reached the following findings on the employment of
Mr Anderson:
·two new sales executives were appointed to the ACT Office in January 2003
·AAPT had an expectation of growth in its market share
·Mr Cobb had also foreshadowed his resignation
·at March 2003 renewal of Centrelink’s tender with AAPT was still under tender
·at this time AAPT were not aware the contract was not to be renewed
·AAPT’s management was hopeful that the contract would be renewed, although it was at risk
·Mr Anderson was consequently employed on 27 March 2003 on a permanent basis and not as a replacement for Ms Sheaves
·Mr Anderson was given the bulk of Ms Sheaves accounts for good practical reasons
·the remainder went to Ms Webster and Mr Cobb
·
Mr Poggio expected to have sufficient work for three to four account managers by January 2004 by which time he thought
Mr Cobb would have left
·AAPT expected Ms Sheaves to return to its employment at the end of her maternity leave.
I think it is fair to conclude from the evidence, as put by Mr Moore for AAPT, that even if Ms Sheaves had not taken maternity leave
Mr Anderson would still have been hired by AAPT. In my view the notional comparator, an ACT account manager for AAPT who was not pregnant who took 12 months leave and had a right to return to their former position, would have been treated no differently from
Ms Sheaves. Mr Anderson would still have been employed had the comparator taken leave.
Allocation of accounts
Ms Sheaves’ second complaint relates to the failure by AAPT to allocate any government or other accounts to her on her return from maternity leave on 2 February 2004. There is less contention over the evidence in relation to this. My findings are:
·
Ms Sheaves did return to her former position in AAPT on
2 February 2004 when she ceased maternity leave but was not reallocated accounts
·Ms Sheaves was not left with no work to do
·she was told by Ms Lakin and Mr Roy to get her computer and e-mail working, to refamiliarise herself with AAPT products and services and to assist the other account managers
·reintegration and refamiliarisation was usual for a person who had been on leave for 12 months
·while Ms Sheaves was on leave, AAPT had merged with Connect Pty Ltd
·a new model was developed by senior management in late January 2004 requiring $5 million billed revenue for each account manager per year
·this necessitated collection of data from each state and territory office on current and projected revenues – a segmentation review to determine the number of account managers each office could support
·Ms Sheaves was informed of this review by Mr Roy in a telephone conversation sometime between 9 – 16 February 2004 and at the second meeting on 16 February 2004
·pending completion of the segmentation review current account allocations in the ACT Office were not to be changed – the status quo was to be maintained
·Ms Sheaves was not to be allocated any accounts until then
·the segmentation review determined that there was only enough work in the ACT Office for two account managers
·consequently each of the three account managers had to be assessed to see who should be retrenched.
Would the notional comparator have been treated differently? I do not believe so. In the circumstances involving a corporate reorganisation with the number of account manager positions that the ACT Office could support still to be determined, it is perfectly understandable that a recent returnee from leave might have to await the results of the review. In my view it is unlikely that the comparator would have been given any government or other accounts on their return from leave.
Termination
The final aspect of the direct discrimination claim concerns the termination on 2 April 2004. The material evidence on the process following completion of the segmentation review is not really in dispute. In summary:
·the segmentation review was completed in late February 2004 with a finding that only two account manager positions were justified
·as assessment of each of the three account managers was then undertaken by Mr Roy using the AAPT’s “Account Manager Excel Spreadsheet”
·assessment was on the basis of competencies, sales and performance data and the views of Mr Roy and those expressed by Mr Poggio on individual performance prior to Mr Poggio’s resignation
·competencies were given greater weight than past performance as AAPT was looking for a sales orientation for the future
·none of the three account managers were told about the assessment
·Ms Sheaves was rated third on the assessment as Ms Webster and Mr Anderson were more likely to perform “in this difficult sales environment”
·Mr Roy finalised the assessments on 26 February 2004
·Ms Sheaves was advised by Mr Roy and Ms Lakin on 1 March 2004 in Canberra that it was proposed to terminate her employment from 5 March 2004
·she was given to 4 March 2004 to respond to this proposal
·Ms Sheaves’ employment was formally terminated on 2 April 2004
·no person from AAPT suggested at any stage that the termination had anything to do with Ms Sheaves’ sex, pregnancy or maternity leave.
Having regard to all the evidence can it be said that in terminating
Ms Sheaves’ employment AAPT treated her less favourably than it would have an ACT account manager for AAPT who was not pregnant who took 12 months leave and had a right to return to their former position? I am not satisfied that it can. It is tolerably clear that the notional comparator would have been retrenched in similar circumstances.
I find that the claim of direct discrimination on the ground of pregnancy is not made out and must be rejected. On the evidence, had it been necessary I would have reached the same conclusion on the direct sex discrimination claim (see paragraphs 68 – 70 above).
Indirect discrimination
Ms Sheaves claims that upon her return to work on 2 February 2004 AAPT imposed a requirement that all account managers would be assessed by an internal manager on their skills to determine who would be made redundant. She contends that in these circumstances AAPT indirectly discriminated against her on the basis of her sex and pregnancy pursuant to s.5(2) and 7(2) of the SDA and in contravention of section 14.
For the reasons given at paragraphs 68 – 70 above, I will only consider the indirect pregnancy discrimination claim.
Ms Sheaves says she was not able to compete as well as the other account managers because:
·she had not worked for the previous 12 months
·she was not aware nor told of personal criticism levelled against her by Mr Poggio
·she was not given any work on her return
·she was not up to date with AAPT’s products on her return
·she did not have recent sales figures to compare with those of the other account managers, Ms Webster and Mr Anderson
·she was not able to impress Mr Roy with her skills because she was not able to give any current demonstration as she was given no relevant work
·Mr Roy who conducted the assessment had only limited contact with her in the year prior to her return and did not consider other information on her personal file
·he did not have any contact with her during 2003 and only one meeting between 2 March 2004 and 1 March 2004.
AAPT denies that Ms Sheaves was unable to compete as well as the other employees:
·the assessment took into consideration Ms Sheaves’ prior performance against budget, sales and process skills/knowledge and behavioural competencies
·the other account managers were equally unaware that the assessment process was being carried out
·Ms Sheaves was given work on her return: to self-train on new products, services and systems and to “buddy up” and assist the other account managers. This was necessary for Ms Sheaves to become effective as Ms Sheaves admitted that she was not up to date with the current work environment
·Ms Sheaves was not made aware of Mr Poggio’s views on her performance prior to taking maternity leave. Neither were the other account managers made aware of Mr Poggio’s views about them
·the absence of sales figures for Ms Sheaves for the previous 12 months did not prevent an appropriate comparison with those of the other account managers as Mr Roy took into account her sales figures as a percentage of target from the period prior to her maternity leave. This percentage of target was very similar to that of the others
·consequently, the ranking was substantively determined on sales and process skills/knowledge and behavioural competencies
·Mr Roy took into consideration Ms Sheaves’ skills as exhibited prior to maternity leave and Ms Webster and Mr Anderson’s exhibited skills.
Imposition of a requirement
It is clear that AAPT imposed a requirement on Ms Sheaves and the two other account managers that they be assessed by an internal manager, Mr Roy, on their skills to determine who should be made redundant. But this was not imposed on Ms Sheaves’ return to work on 2 February 2004 but on or about 25 February 2004 after the segmentation review had been finalised.
I am satisfied that this is a requirement for the purposes of s.7(2) of the SDA. The words “requirement” or “condition” in that section should be given a broad or liberal interpretation (Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 393 and 406 – 407).
Disadvantage
I do not think it can be seriously denied that the imposition of such a requirement “has, or is likely to have, the effect of disadvantaging women who are also pregnant or potentially pregnant”. They are put at a disadvantage or deprived of an advantage. As in Ms Sheaves’ case this means that her performance assessment covered a different period from that of her competitors. It was more dated. Her supervisor’s comments were also less recent. She had not had the opportunity to get back on top of her work on her return. Indeed, although I do not accept that she was not given any substantive tasks, she had not returned to managing accounts.
With one exception, I agree that Ms Sheaves’ contentions of fact set out in paragraph 85 above are broadly correct. I do not accept however that Ms Sheaves was not given any work on her return. The evidence supports AAPT’s view that she was given appropriate work on her return with a view to ensuring she became an effective account manager again after a significant period of absence. This was to self-train on new products, services and systems and to “buddy up” and assist the other account managers.
I therefore find that AAPT did impose a requirement that would have the disadvantaging effect mentioned in s.7(2).
Reasonableness
Was the requirement “reasonable in the circumstances” (section 7B)? The burden of proving it was reasonable lies on AAPT (section 7C).
The matters to be taken into account in deciding whether the requirement was reasonable are set out in s.7B(2):
·the nature and extent of the disadvantage flowing from the imposition of the requirement
·the feasibility of overcoming or mitigating the disadvantage
·whether the disadvantage is proportionate to the result sought by the imposition of the requirement.
Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 said of the reasonableness requirement at 263:
… the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. … The criterion is an objective one which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.
I do not accept Ms Sheaves’ proposition that no evidence was adduced going to reasonableness. There was much relevant evidence.
What then were the relevant circumstances in which the requirement was imposed? The following are the central elements:
·AAPT had merged with Connect Pty Ltd in August 2003
·a model was developed for the new merged organisation requiring a billing revenue for each account manager across the organisation of $5 million each year
·the ACT Office could consequently only support two account managers
·a selection process was therefore necessary to determine which of the three current account managers would lose their position.
The selection or assessment process is described in the evidence of
Mr Roy and Ms Guerin set out at paragraphs 47 - 58 above.
The selection was made by the senior manager responsible for the ACT Office, Mr Roy, no permanent replacement having been made for
Mr Poggio who had left in November 2003. He utilised the “Account Manager Evaluation Excel Spreadsheet” provided by AAPT’s human resources area.
As Ms Sheaves had been on leave for a year there were no recent performance data for her. Mr Roy therefore used that from the period prior to her maternity leave. For Ms Webster and Mr Anderson he relied on more current figures for the year ending June 2003. The ABR (Annual Billed Revenue) figures represented a rolling target. Thus the most useful figures are the latest ones in the financial year, that is those for June. Mr Roy found all three account managers rated about the same on their sales performance.
The individual sales performance figures were only secondary considerations according to Mr Roy and only used to check for any anomalies. This was because in the current environment AAPT was looking for sales oriented not service oriented account managers for the ACT. Thus the skills/knowledge and behavioural competencies played a greater role. For this Mr Roy relied on his own experience with the account managers and comments from Mr Poggio. This was notwithstanding that Mr Roy’s contact with Ms Sheaves was somewhat dated and limited, but not as limited as Ms Sheaves asserts. Mr Poggio had left AAPT before Ms Sheaves returned, so his comments were based on his experience prior to March 2003. Mr Roy also agreed that he had not considered other older information such as performance assessments on Ms Sheaves personal file.
There was no issue raised by Ms Sheaves whether the redundancy was bona fide. She did not suggest that it was a sham or contrivance to terminate her employment. On the evidence she could not. Nor has the validity of the selection criteria for the account manager positions been placed in question. The process was genuine because the ACT Office could no longer support three account managers. It was unfortunate that the issue arose so soon after Ms Sheaves returned. As AAPT submits, employers are required from time to time to downsize. The commercial imperative cannot be ignored.
Furthermore Ms Sheaves could not be removed from the selection process simply because she had only recently returned from maternity leave. This would place a person in Ms Sheaves situation in a preferred position over other employees.
Here Mr Roy did take some steps to overcome or mitigate the disadvantage to Ms Sheaves. He considered her most recent performance figures and had regard to his and Mr Poggio’s observations on her performance. No suggestions on other approaches were advanced.
In my view it is regrettable that Ms Sheaves, and Ms Webster and
Mr Anderson, were not accorded the opportunity to comment on such observations and criticisms. Similarly, it is surprising and unfortunate that they were not each given the chance to put their case for retention to Mr Roy.
Nevertheless, despite their denials, Ms Sheaves and Mr Anderson must have been aware after completion of the segmentation review that a selection would have to be held with the distinct possibility of a redundancy. After all, with Ms Webster they had been informed of the $5 million target for each account manager and they drew up the annual billed revenue report or spreadsheet and provided it to Mr Roy on about 24 or 25 February 2004. This formed the basis for the reduction in account managers.
Ms Sheaves was disadvantaged principally because of her recent return and the reliance by Mr Roy on more dated information. She therefore suffered a competitive disadvantage vis a vis Ms Webster and
Mr Anderson. But the performance figures which were the main concern were not given great weight by Mr Roy. As Mr Roy also noted the assessment was not about one point in time, not a snapshot, but was based on observations over a period of time.
In my view the competitive disadvantage suffered by Ms Sheaves although real was not unreasonable in the circumstances. Some attempt was made to overcome it, although other approaches were not explored. In the end the disadvantage was proportionate to the result sought by AAPT.
On balance, despite some inadequacies in the selection process, I am satisfied that the imposition of the assessment process by AAPT on its ACT account managers was reasonable in the circumstances.
The indirect discrimination claim must be rejected.
Breach of contract
Ms Sheaves claims that a term was implied into her employment contract that AAPT would not without reasonable cause conduct itself in a manner likely to damage or destroy the relationship of trust between the parties as employer and employee. She asserts that AAPT conducted itself in a manner that did in fact damage this relationship. The particulars of this alleged breach are:
·Ms Sheaves gave notice to AAPT by e-mail on 10 November 2003 that she would return to work on 2 February 2004
·on or about 2 January 2004 she gave notice again that she would be returning on 2 February 2004
·Ms Sheaves returned to work on 2 February 2004
·she was then told that AAPT was conducting a review of accounts
·at no time between then and 1 March 2004 was she told that AAPT was carrying out an assessment of her performance, nor was she told that one account manager would be made redundant
·she was not allocated any accounts on her return to work and had little to do
·from her return AAPT told her it was in the process of reallocating accounts
·accounts had not been reallocated at 1 March 2004
·Ms Sheaves was not permitted to return to her former duties which were being performed by Mr Anderson.
Ms Sheaves also relies on the particulars she asserts in relation to direct and indirect discrimination.
Ms Sheaves has referred me to the following passage from the judgment of Allsop J in Thomson at [141]:
Constructive dismissal is an unlawful termination of the contract of employment in circumstances where the employee leaves, without an express act or enunciation of `dismissal' by the employer. It will be taken to be a dismissal (hence the word `constructive') if the employer has behaved towards the employee in a way that entitles the employee to treat the employment as at an end. How that behaviour of the employer is to be described is at the heart of the matter. One difficulty in a simple enunciation of the common law principle is the existence of legislation and case law on closely related topics. However, if one is to approach the matter in straightforward contractual terms there is ample authority for the implication of a term in a contract of employment that the employer will not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee: Burazin v Blacktown City Guardian (1996) 142 ALR 144, 151 and the English cases there cited and Daw v Flinton Pty Ltd (1998) 85 IR 1, 3. Breach of that implied term will entitle the employee to treat himself or herself as wrongfully dismissed. Olson J (sitting at first instance) in Blaikie v South Australian Superannuation Board (1995) 65 SASR 85, 102-106 and (sitting on the Full Court, though in dissent) in Easling v Mahoney Insurance Brokers Pty Ltd[2001] SASC 22 at [99], if I may say so, expressed the principle with clarity. The principle expressed by Olson J in Easling at [99] was not the subject of any criticism from the majority (Doyle CJ and Bleby J). His Honour said:
...Suffice to reiterate that the notion of constructive dismissal implies the existence of conduct on the part of an employer which is plainly inimical to a continuance of a contract of employment according to its express or implied terms. The authorities establish the concept that there is implied in a contract of employment a term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. An intention to repudiate need not be proved. Rather, it is a matter of objectively looking at the employer's conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.
For present purposes I accept that there was implied into Ms Sheaves’ contract with AAPT a term that AAPT would not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the two as employee and employer.
It appears that Ms Sheaves is asserting that it is the allegations she has made in the particulars above taken as a whole, the conduct overall, which constitutes a breach of the implied term. She has not identified any one particular in itself as amounting to a breach.
Some of these allegations are true, some are false and some are partly true. They have been considered in detail earlier in these reasons.
It serves no useful purpose to repeat that examination here.
Suffice it to say having regard to the various findings of fact that I have made earlier, nothing that AAPT has done could amount to conduct calculated or likely destroy or seriously damage any relationship of confidence and trust between the parties. If I am wrong on this, I am satisfied that such conduct was for reasonable cause.
As I have already noted AAPT was faced with a need to reduce the number of account managers in its ACT Office. It therefore conducted a merit selection, albeit with some deficiencies. It was unfortunate that MS Sheaves had only recently returned to work at the time of this reorganisation. But that was none of AAPT’s doing.
Furthermore the passage above from Thomson refers to the situation where the employee leaves without an express act of dismissal by the employer. This case is not Thomson’s case (see [104] of Thomson). There is no evidence in this case that Ms Sheaves advised AAPT that the employment was at an end. The act of termination was by AAPT’s letter effective on 2 April 2004.
The breach of contract ground has no merit.
Term implied by Workplace Relations Act 1996
Ms Sheaves’ last contention in her points of claim is that a term was implied into her contract by virtue of section 170KB and clause 12 in Schedule 14 of the WRA as it was in February 2004. The term was that Ms Sheaves was entitled to 52 weeks leave and to return to the position she had before taking leave.
The particulars Ms Sheaves relies upon are the same as those for her claim for breach of contract. She seeks a declaration that AAPT breached section 170KB of the WRA.
It is unclear in what form Ms Sheaves is pursuing this claim. It only rates a brief mention in her written submissions – and then only apparently as part of her breach of contract claim (see [32]). In her written submissions in reply, however, Ms Sheaves says she seeks a declaration as a statutory right, not as an implied term of the contract.
Having regard to the comments of Brennan CJ, Dawson and Toohey JJ at [11] in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 421 – 422 I do not accept that clause 12 is a term implied into the contract of employment between the parties.
Clause 12 requires the employer to employ an employee returning from maternity leave in the position she held, relevantly in Ms Sheaves’ case, immediately before she began maternity leave. This must encompass the same rank and status as well as the tasks performed in the position (St Vincent’s Hospital Sydney Ltd v Harris [1998] NSWIRComm 235 at page 11).
There can be no doubt that Ms Sheaves returned to a position of the same rank and status. It was her old position.
But did it encompass the tasks performed before she went on leave? Ms Sheaves says not. She says she was not returned to any position in AAPT and she was not allocated proper duties. She says there was nothing to refamiliarise herself with. This conflicts with her assertion in her written submissions that she was not up to date with AAPT’s products on her return. She did not acquiesce with the work AAPT gave her when she returned.
I have already found that the work provided by AAPT for Ms Sheaves on her return after a significant period of absence – to get her computer and e-mail systems working, and particularly to self-train on new products, services and systems and to “buddy up” and assist the other account managers – was appropriate. The fact that this extended longer than might otherwise be the case because of the reorganisation under way does not make it any less so. Furthermore as the evidence disclosed Ms Sheaves had no entitlement to any specific portfolio of accounts. Indeed under her contract of employment her “duties and responsibilities … may be varied from time to time by the Company at its discretion”.
In the result I am unable to find that AAPT breached section 170KB of the WRA in February – March 2004.
Conclusions
In summary I conclude:
·AAPT did not directly discriminate against Ms Sheaves
·
AAPT did impose a requirement which had the effect of disadvantaging women who are also pregnant or potentially pregnant by requiring Ms Sheaves to be assessed on or about
25 February 2004 on her skills to determine whether she would be made redundant
·this requirement was reasonable in the circumstances
·AAPT did not breach any implied term in the employment contract that it would not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employee and employer
·AAPT did not breach s.170KB of the WRA on Ms Sheaves return from maternity leave in February – March 2004.
The application must be dismissed.
Division 21.2 of the Federal Magistrates Court Rules allows me to set a method by which costs should be calculated and to refer the costs for taxation under Order 62 of the Federal Court Rules. I consider that this is the appropriate course in this case. Having regard to the objects set out in section 3 of the Federal Magistrates Act 1999 – see also rule 1.03 – these costs should be calculated at 85 per cent of the scales applied on taxation in the Federal Court. These costs should include any reserved costs.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 7 November 2006
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