Song v Ainsworth Game Technology Pty Ltd - [2002] FMCA 31

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SONG v AINSWORTH GAME TECHNOLOGY PTY LTD

[2002] FMCA 31

DISCRIMINATION – Discrimination on grounds of family responsibilities – Requirement to collect child at 3.00pm – Flexibility in workplace – Change in employment from full time to part time – Dismissal on ground of family responsibilities – Damages – Reinstatement ordered.

EMPLOYMENT – Definition of dismissal for purposes of SDA – Dismissal includes non-consensual transfer from full time to part time employment.

Human Rights and Equal Opportunity Act 1986 (Cth) s.46 PO
Sex Discrimination Act1984 (Cth) ss. 5(2), 6, 18, 14 2(a), (b), (d), 14(3A).

Advertiser Newspapers v Grivell (1990) 90 IR 211

Brackenridge v Toyota Motor Corporation Australia Limited (1996) 142 ALR 1999.

Applicant:

CATHY (QI) SONG

Respondent:

AINSWORTH GAME TECHNOLOGY PTY LIMITED (ACN 068 516 665)

File No:

SZ 637 of 2001

Delivered on:

8 March 2002

Delivered at:

Sydney

Hearing Date:

18, 19, 20, 21 February 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Ms Clair Howell

Solicitors for the Applicant:

Kingsford Legal Centre

Solicitor for the Respondent:

Mr Darren Gardner of Cutler Hughes & Harris

ORDERS

Declaration that the respondent has committed unlawful discrimination against the applicant by dismissing her on the ground of family responsibilities.
Order that the respondent pay the applicant the sum of $10,000.00 by way of general damages.
Order that the respondent pay to the applicant special damages at the rate of $244.44 per week from 21 February 2001 until the date of judgment herein less $977.76 already paid. The said sum is to be paid to the applicant after deduction of tax in accordance with the group tax tables.
Order that the applicant be reinstated to her former employment pursuant to s.46PO(4)c of the HREOC Act forthwith.
Order that the applicant’s employment agreement be varied so that she be permitted to take her lunch break from 2.55p.m. to 3.25p.m. during each working day.
Order that in the absence of any application to me to argue the question of costs within seven days of the date of this judgment that the respondent pay the applicant’s costs in accordance with the Federal Magistrates Court Rules and I certify that it was reasonable for the applicant to employ an advocate to appear for her in the proceedings pursuant to Part 21.15 of those Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 637 of 2001

CATHY (QI) SONG

Applicant

And

AINSWORTH GAMING TECHNOLOGY PTY LIMITED
(ACN 068 516 665)

Respondent

REASONS FOR JUDGMENT

What is the nature of the dispute

This application is bought by CATHY SONG against her employers AINSWORTH GAMES TECHNOLOGY PTY LIMITED (“AGT”) pursuant to s.46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) [HREOC Act] claiming that she was the subject of sexual discrimination contrary to the provisions of ss. 5(2), 6, 14(2)(a), (b), (d) and 14(3A), of the Sex Discrimination Act 1984 (Cth) (the SDA).
The applicant also alleges breach of contract by the respondent who, she claims,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FMCA 31
Decision Date: 8 March 2002

CaseChat Overview and Summary

The matter before the court involved a claim by the applicant, Song, against the respondent, Ainsworth Game Technology Pty Ltd, regarding her dismissal from employment. The applicant alleged that she was dismissed due to her family responsibilities, which constituted unlawful discrimination under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The Federal Magistrates Court was tasked with determining the validity of these claims and the appropriate remedies.

The primary legal issue before the court was whether the respondent had unlawfully discriminated against the applicant by dismissing her on the basis of her family responsibilities. This required the court to consider the relevant provisions of the Human Rights and Equal Opportunity Commission Act and the evidence presented regarding the applicant's dismissal. The court also needed to assess the quantum of damages, if any, that should be awarded to the applicant and determine whether reinstatement to her former employment was warranted.

In examining the evidence and submissions, the court found that the respondent had indeed dismissed the applicant because of her family responsibilities. The court held that this constituted unlawful discrimination under the Act. Consequently, the court ordered a declaration to this effect and awarded the applicant general and special damages, as well as costs. The court also mandated the applicant's reinstatement to her former position and allowed for a variation in her employment agreement to accommodate her family needs.

The court ordered the respondent to pay the applicant the sum of $10,000.00 by way of general damages, and further ordered that the respondent pay special damages at the rate of $244.44 per week from 21 February 2001 until the date of judgment, less $977.76 already paid. Additionally, the court ordered the respondent to reinstate the applicant to her former employment immediately, and to permit her to take her lunch break from 2.55p.m. to 3.25p.m. during each working day. The respondent was also required to pay the applicant's costs unless an application to argue the question of costs was made within seven days of the date of the judgment.

Orders

Orders of the court

Declaration that the respondent has committed unlawful discrimination against the applicant by dismissing her on the ground of family responsibilities.

Order that the respondent pay the applicant the sum of $10,000.00 by way of general damages.

Order that the respondent pay to the applicant special damages at the rate of $244.44 per week from 21 February 2001 until the date of judgment herein less $977.76 already paid. The said sum is to be paid to the applicant after deduction of tax in accordance with the group tax tables.

Order that the applicant be reinstated to her former employment pursuant to s.46PO(4)c of the HREOC Act forthwith.

Order that the applicant’s employment agreement be varied so that she be permitted to take her lunch break from 2.55p.m. to 3.25p.m. during each working day.

Order that in the absence of any application to me to argue the question of costs within seven days of the date of this judgment that the respondent pay the applicant’s costs in accordance with the Federal Magistrates Court Rules and I certify that it was reasonable for the applicant to employ an advocate to appear for her in the proceedings pursuant to Part 21.15 of those Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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