Sheaves v AAPT Limited - [2004] FMCA 225

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

Application dismissed.
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

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.”
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.
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.
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 with Mr Roy and with another member of staff Ms Lakin on 1 March 2004. At that meeting the applicant was told that she was being made redundant. I will not repeat the contents of the applicant's affidavit in regard to the interview but would say merely that if it is established that what the applicant says occurred did occur, then the respondent should take a very serious look at its human resources program and those persons authorised to act in its name in delicate matters of this nature.
There was one very important outcome for the purposes of these proceedings from the meeting of 1 March. That was a letter dated that date and written to the applicant. The letter is in the following terms:
“Dear Fiona,
Following our discussion today, we write to confirm that AAPT Limited intends to terminate your employment for reasons of redundancy, with effect on and from close on business on 5 March, 2004. As result of the restructure of the Australian Business Sales Group, your current position will no longer be required and as such you will be retrenched.
However, before coming to this decision we would like to provide you with the opportunity to consider our decision, including the enclosed materials. If you would like to raise any issues you feel could effect our decision, or provide us with the detail of any mitigating circumstances that should be taken into account, or should you wish to discuss any of these matters, please advise your line manager or your HR manager as soon as possible before close of business on 4 March, 2004.
If you do decide to respond or contact us to discuss these matters further, we will take into account any matter you raise before we confirm our decision. Our decision may be to confirm your termination of employment for reason of redundancy or to take some other appropriate action, and you will be advised of the decision accordingly
...
Yours sincerely”
There was provided with the letter a series of documents which set out the benefits available to the applicant, the payment of her redundancy pay and a statement of service.
The applicant was distressed by the decision of the respondent and contacted a solicitor who wrote to Mr Roy suggesting that the decision to terminate the applicant would contravene the Sex Discrimination Act 1984 because she had recently returned from maternity leave and the company had failed to provide her with work at the level at which she was previously employed and now proposed to terminate her employment without valid reason.
The letter ended as follows:
“If you proceed to terminate Fiona Sheaves' employment, I am instructed to bring the matter to the attention of the Human Rights and Equal Opportunity Commission.”
On 8 March a firm of solicitors acting for AAPT sent a fax to Ms Nicholas, the applicant's solicitor, advising her that they would reply to her fax no later than 5.00pm on 12 March. On 12 March a letter was written and sent by fax to Ms Nicholas which advised that until October 2003, there were four account managers employed by AAPT in the ACT office, one had resigned and that her client had gone on maternity leave. It went on to say that AAPT had lost an important client and that all the employees of the office had been told by Mr Roy that there was not enough revenue to justify three account managers in that office. The letter denied that the Sex Discrimination Act had been breached.
On 16 March Ms Nicholas wrote to Mr Salmon, AAPT's solicitor, asking for a copy of the review of the national account manager structure to which he had referred and on 18 March 2004 Mr Salmon facsimiled Ms Nicholas to the effect that this was not going to be provided.
On 23 March 2004, Ms Nicholas wrote a further letter to Mr Salmon. This states, inter alia:
[4]“However, to date, there has been no express confirmation by AAPT that a decision has been taken to terminate my client's employment. Such a decision may be inferred from your facsimiles of 12 and 18 March 2004, and I note that your facsimile of 12 March 2004 does claim that she was informed at the meeting of 1 March that "she was selected as the account manager to be retrenched". My client disputes the account of the meeting at paragraph 6 of your facsimile.
[5] Please confirm by return whether my client's employment with AAPT has been terminated with effect as from 4 March 2004. If it has been terminated, please explain why your client has not paid to my client her entitlements and the redundancy pay out attached to the letter of Mr Roy 1 March 2004. If my client's employment has not been terminated, please advise the arrangements for her return to work.”
There was no response to the letter of 23 March prior to Ms Nicholas writing to Mr Salmon again on 29 March 2004 attaching a copy of an application that was due to be lodged with HREOC and requesting his undertaking in writing that no steps detrimental to her client's employment status would be taken prior to a conciliation conference in relation to the complaint. The letter asked for a reply within 24 hours.
Mr Moore, who appears on behalf of AAPT today, informs me that his instructions are that on 30 March 2004, Mr Salmon telephoned Ms Nicholas and had a conversation with her in which he told her that her client's employment was terminated effective 4 March 2004. He told her that the applicant had not been paid her redundancy entitlements as she had not filled out the appropriate form and that the continued receipt of payment by the applicant fell under an administrative error. That conversation was confirmed by facsimile from Mr Salmon to Ms Nicholas on the 31 March 2004.
I am advised by Ms Ronalds that on 30 March 2004 the complaint was lodged. Mr Moore says that the conversation between Mr Salmon and Ms Nicholas took place at about 3.00pm. Ms Ronalds did not give me a time at which the complaint was lodged.
The chronology which I have recited at some length is important because of the purpose of the section which is to maintain the status quo. If the status quo was that at the time the application was lodged Ms Sheaves had been dismissed by AAPT then nothing I could do would place her back into the position that she had held prior. The Act is intended to preserve rights, not to create them. It follows that I must first make a finding, albeit on an interim basis, as to whether Ms Sheaves had been dismissed effective 4 March (although in this regard the solicitors for both parties seem to be in agreement that the date is in error and should be 5 March).
In favour of Ms Sheaves' argument that she remained in employment is the apparent agreement of her employers not to put into effect the decision to make her redundant until she had had an opportunity to make submissions to them. In the normal course of events, one would have expected that those representations would be made, would be considered and a further decision taken and advised to Ms Sheaves. The representations in this case were made by the solicitors on behalf of Ms Sheaves and after the first letter were made to the solicitors acting for AAPT.
Ms Ronalds argues that the assertion by Mr Salmon on 30 March 2004 that her client was terminated effective 4 March 2004 is not sufficient to conclude the process that AAPT had put into effect. She would argue that the decision was required from AAPT. Mr Moore argues that a confirmation was sought by one solicitor from another and was given by one solicitor to another, that both those solicitors were agents for their principals and therefore what was said by the agent binds the principal and the agent had the authority to make the statements. I think I would have been more prone to accept Mr Moore's view if the solicitor had said that Ms Sheaves had been dismissed as of another date later than 5 March. That would be much more consistent with the process which APPT had put into effect. If AAPT were to await a decision as to dismissal until it had received and considered representations, then the contract of employment would continue and it would not be open to AAPT to turn around later and say that the contract of employment ended at an earlier date than the date upon which it made its final decision.
For this reason I am satisfied that Ms Sheaves remained in AAPT's employment notwithstanding the letter or the telephone conversation which the letter had confirmed. I suppose it must follow from what I have just said that I would believe Ms Sheaves remains in employment, even though it is quite clear now that AAPT wished to terminate it. It is my view that that company should do so itself and in the appropriate manner.
To the extent that any corroboration for the views which I have expressed as required, I find it in the continued payment of Ms Sheaves, although that was stated by AAPT to be an "oversight", it is more likely that no decision to cease payment would be made until the conclusion of the representation exercise that the company had itself put into effect by its letter of 1 March.
On this basis I find that an application under s.46PP is available to Ms Sheaves and the question is now whether or not I give the injunction. Because of the lateness of the day and because of the fact that Ms Ronalds appeared in the case and Mr Moore has indicated a thorough knowledge of it, I will not discuss at length my decision in Beck v Leichhardt Municipal Council [2002] FMCA 331, which I would use as an indicator of my thinking in this particular case. The law which I applied in Beck should be applied here. Taking the matters referred to in Beck and in the decision of Heerey J in Mackintosh v The Australian Postal Corporation [2001] FCA 1012 into account, I am of the view that the balance of convenience militates against me granting an injunction.
I am satisfied from what I have heard that the present position in the Canberra office of AAPT is such that only two people can effectively carry out the work and the employment of three people will involve the company in an additional wage burden. More important, however, the continued employment of that person would, I think, bring about a situation where the breakdown of the relationship between all the parties may take place. I note that if I do not grant this injunction and AAPT terminate the applicant's employment, she will be paid a sum of money which, whilst not necessarily being equivalent to her salary for a period during which she may be unemployed, will at least provide assistance to her in the time being.
I am particularly aware of the very strong powers that this Court has under s.46PO of the HREOC Act to require the applicant's re-employment and to pay her damages. It will be clear to AAPT that if, at the end of the day, it is found that the applicant was correct in her assertions that her termination was due to a breach of the Sex Discrimination Act, that they cannot be heard to complain if she is required to be reinstated and if they are required to pay her back wages for the time during which she was unemployed. It will be recalled, certainly by Ms Ronalds, that a reinstatement order of that type was given in a case heard by me (Cathy (Qi) Song v Ainsworth Game Technology Pty Limited [2002] FMCA 31).
For these reasons, I will dismiss the application. I have heard the parties as to costs. Whilst it is correct as Ms Ronalds argues that I did find for her client in respect of the employment issue, in the end the application has failed. I think the most appropriate order is then for the applicant to pay the respondent's costs which, based upon Schedule 1 of the Federal Magistrates Court rules for interim or summary hearing lasting half a day would be $1,800.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 15 April 2004