Sheaves v AAPT Limited

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHEAVES v AAPT LIMITED [2004] FMCA 225

HUMAN RIGHTS – Sex discrimination – application for interim injunction – where applicant advised shortly after returning from maternity leave that she was facing redundancy – where respondent invited applicant to make submissions before final decision made – where applicant lodged complaint with HREOC – whether employment had yet to be officially terminated allowing injunction to be granted – whether appropriate in the circumstances to grant s.46PP HREOC Act injunction.

Human Rights and Equal Opportunity Commission Act 1986, s.46PP, 46PO
Sex Discrimination Act 1984

Beck v Leichhardt Municipal Council [2002] FMCA 331
Mackintosh v The Australian Postal Corporation [2001 FCA 1012
Cathy (Qi) Song v Ainsworth Game Technology PtyLimited [2002] FMCA 31

Applicant: FIONA MAY SHEAVES

Respondent: AAPT LIMITED

File No: SZ 938 of 2004

Delivered on: 31 March 2004

Delivered at: Sydney

Hearing date: 31 March 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Ms C Ronalds

Solicitors for the Applicant: Nicholas Dibbs Solicitors

Counsel for the Respondent: Mr R Moore

Solicitors for the Respondent: Fisher Cartwright Berriman

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs in the sum of $1,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 938 of 2004

FIONA MAY SHEAVES

Applicant

And

AAPT LIMITED

Respondent

REASONS FOR JUDGMENT

1. This is an application brought urgently for relief under s.46PP of the Human Rights and Equal Opportunity Commission Act 1986 (the “HREOC Act”). That subsection provides:

   “At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrate's Court may grant an interim injunction to maintain:

   (a)The status quo, as it existed immediately before the complaint was lodged; or

   (b) The rights of any complainant, respondent or affected person.”

2. It is noteworthy that under s.46PP(5) the court cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

3. The applicant in the proceedings maintains that she is an employee of the respondent in its Canberra office.  It is not disputed that she worked as an account manager and that her employment commenced on 27 January 1998.  It is also not disputed that the applicant left her employment for maternity leave in 2003 and returned from maternity leave with the agreement of her manager, a Mr Poggio, on the 2 February 2004.

4. In an affidavit sworn by the applicant in these proceedings, she confirms a statement made to HREOC that from the time of her return to work until approximately 1 March 2004, there was no allocation of customers to her and what appears to be quite obviously a rather strange atmosphere existed within the office.  On about 16 February 2004, a member of the respondent's staff – Mr Roy – made a visit to the Canberra office.  The applicant says that she expected there would be a re-allocation of accounts at that time, but this did not occur.  There was a further meeting…