Stanley v Service to Youth Council Incorporated
[2014] FCA 643
FEDERAL COURT OF AUSTRALIA
Stanley v Service to Youth Council Incorporated [2014] FCA 643
Citation: Stanley v Service to Youth Council Incorporated [2014] FCA 643 Parties: ARVINA NONA STANLEY v SERVICE TO YOUTH COUNCIL INCORPORATED File number: SAD 64 of 2013 Judge: WHITE J Date of judgment: 20 June 2014 Catchwords: HUMAN RIGHTS – sex discrimination – applicant made redundant while on maternity leave – whether applicant “targeted” for dismissal after announcing her pregnancy – whether termination constituted discrimination on the basis of sex, pregnancy or family responsibilities – whether applicant sexually harassed
INDUSTRIAL LAW – National Employment Standards – whether respondent failed to respond to a request for flexible working arrangements – whether respondent failed to consult employee on parental leave regarding changes affecting status, pay or location of pre-parental leave position – whether return to work guarantee in s 84 of the Fair Work Act 2009 (Cth) contravened
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PD, 46PH, 46PO
Evidence Act 1995 (Cth) s 97
Fair Work Act 2009 (Cth) ss 44, 65, 83, 84, 546
Paid Parental Leave Act 2010 (Cth)
Sex Discrimination Act 1984 (Cth) ss 4A, 5, 7, 7A, 7B, 7D, 8, 14, 28A, 28B, 106Cases cited: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560
Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040; (2009) 189 IR 304
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 268 ALR 514
Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (1998) 88 IR 202
Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240
Gilroy v Angelov [2000] FCA 1775; (2000) 181 ALR 57
Hall v A & A SheibanPty Ltd (1989) 20 FCR 217
Hoch v The Queen (1988) 165 CLR 292
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301
Iliff v Sterling Commerce (Australia) Pty Ltd [2007] FMCA 1960
Kerrison v Air International Pty Ltd [2006] AIRC 297
Kraus v Menzie [2012] FCAFC 144
Leslie v Graham [2002] FCA 32
Pfennig v The Queen (1995) 182 CLR 461
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357
Poniatowska v Hickinbotham [2009] FCA 680
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702; (2008) 173 IR 378
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1246; (2008) 177 IR 61
Temple v Powell [2008] FCA 714; (2008) 169 FCR 169
Termination, Change and Redundancy Case (No 2) (1984) 295 CAR 673
Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186Date of hearing: 30 September, 1 October and 8 October 2013 Place: Adelaide Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 243 Counsel for the Applicant: Mr A Manos Solicitor for the Applicant: AM Legal Counsel for the Respondent: Mr M Douglas Solicitor for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
SAD 64 of 2013
BETWEEN: ARVINA NONA STANLEY
ApplicantAND: SERVICE TO YOUTH COUNCIL INCORPORATED
Respondent
JUDGE:
WHITE J
DATE OF ORDER:
20 JUNE 2014
WHERE MADE:
ADELAIDE
THE COURT DECLARES THAT:
1.The respondent breached s 44(1) of the Fair Work Act 2009 (Cth) in that it failed, as required by s 65(4) of the Fair Work Act, to give the applicant a written response within 21 days to the request for a change in work arrangements contained in her email of 12 December 2011.
THE COURT ORDERS THAT:
1.Pursuant to s 546(1) of the Fair Work Act, the respondent is to pay a pecuniary penalty of $4,000 in respect of its breach of s 65(4).
2.Pursuant to s 546(3) of the Fair Work Act, this penalty is to be paid to the applicant.
3.All other claims of the applicant in these proceedings are dismissed.
4.The Court will hear the parties as to costs and any consequential matters.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
SAD 64 of 2013
BETWEEN: ARVINA NONA STANLEY
ApplicantAND: SERVICE TO YOUTH COUNCIL INCORPORATED
Respondent
JUDGE:
WHITE J
DATE:
20 JUNE 2014
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
The respondent (SYC) terminated the applicant’s employment on 15 February 2012. It said that the applicant’s position as Facilities Manager was redundant and that SYC had no other suitable position for her.
At the time of the termination, the applicant was on unpaid parental leave, having given birth to her first child on 20 August 2011. She contends that the decision to terminate her employment was made because of her pregnancy, parental leave and parental obligations and therefore a contravention of the Sex Discrimination Act 1984 (Cth) (the SD Act).
The applicant also claims other contraventions by SYC of the SD Act and of provisions of the Fair Work Act 2009 (Cth) (the FW Act). Some of the applicant’s claims were abandoned or modified in her final submissions (with those changes confirmed in writing subsequently). In addition, some unpleaded claims to which the applicant referred in the opening were not mentioned in the final submissions. I have taken those claims to be abandoned. The claimed contraventions by SYC which the applicant pursued were:
(1)a contravention of ss 14 and 28B of the SD Act by reason of remarks said to have been made by the applicant’s Manager, Mr Furniss, on 11 February 2011 when she informed him of her pregnancy;
(2)a contravention of s 14 of the SD Act by terminating her employment on the ground of her pregnancy, parental leave or family responsibilities;
(3)a contravention of s 14 of the SD Act by removing the applicant’s car park access during the period of annual leave which immediately preceded her parental leave;
(4)a contravention of s 14 of the SD Act by not commencing consultation with her promptly when SYC decided upon the final structure of “the property team” (of which the applicant had been a member) on or around 27 October 2011;
(5)a contravention of ss 44(1) and 65 of the FW Act by not responding to her request for flexible working arrangements;
(6)a contravention of ss 44(1) and 83 of the FW Act by failing to take all reasonable steps to give her information about, and the opportunity to discuss, the effect of its decision to make her position as Facilities Manager redundant;
(7)a contravention of ss 44(1) and 84 of the FW Act by not permitting her to return to her pre-parental leave position or an alternative suitable position.
In her statement of claim (ASC), the applicant contended that, from the time of her announcement of her pregnancy, SYC began to treat her “less favourably and adversely” by reason of her pregnancy and impending parental leave. She contended that she had been “targeted” for dismissal by SYC by reason of those matters and that it had created her redundancy in order to allow it to terminate her employment. The applicant pleaded that each of five senior managers of SYC (Mr Edginton, Mr Furniss, Ms Gillies, Mr Dyer and Ms England) had participated in, and was responsible for, the decision to terminate her employment.
In addition, in her cross-examination the applicant maintained a belief that these five senior managers at SYC had together targeted her for retrenchment because of her pregnancy.
However, in his opening submissions, the applicant’s counsel said that it was not the applicant’s case that there was an intentional plan to inflict harm on her; in his closing submissions, he said that the applicant did not press the allegation that she had been targeted for dismissal; and that she withdrew the allegation that the “targeting” had commenced shortly after she had informed SYC of her pregnancy. In relation to the five senior managers, the applicant pressed only the claims that Mr Dyer and Ms England had participated in and were responsible for the decision to terminate her employment. It will be necessary to refer again to the withdrawal of these allegations later in these reasons.
The statutory provisions: the Sex Discrimination Act
Section 14 of the SD Act proscribes discrimination in employment on grounds related, amongst other things, to a person’s sex, pregnancy or family responsibilities. Section 14(2), on which the applicant relies, provides:
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(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.
Discrimination on the ground of sex is defined in s 5 of the SD Act as follows:
(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 a different sex.
(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.
Discrimination on the ground of pregnancy is defined in s 7 of the SD Act as follows:
(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 pregnant or potentially pregnant.
(3)This section has effect subject to sections 7B and 7D.
As can be seen, each of ss 5 and 7 is made subject to ss 7B and 7D. It was not suggested that either of those provisions is applicable presently.
Discrimination on the ground of family responsibilities is defined in s 7A of the SD Act as follows:
For the purposes of this Act, an employer discriminates against an employee on the ground of the employee’s family responsibilities if:
(a)the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and
(b)the less favourable treatment is by reason of:
(i)the family responsibilities of the employee; or
(ii)a characteristic that appertains generally to persons with family responsibilities; or
(iii)a characteristic that is generally imputed to persons with family responsibilities.
The expression “family responsibilities” used in s 14 is defined in s 4A(1) of the SD Act to include the “responsibilities of [a] person to care for or support … a dependent child of the person”.
Section 7 has been held to operate exclusively of s 5, so that when the facts concern a person who is pregnant and who claims to have been treated unfavourably because she is pregnant, or because of a characteristic that generally appertains to or is imputed to pregnant women, s 7 operates to the exclusion of s 5: Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 327-8; Thomson v Orica Australia Pty Ltd [2002] FCA 939 at [170]; (2002) 116 IR 186 at 230-1.
The phrases “by reason of” in ss 5(1) and 7A and “because of” in s 7 were considered in some detail by Lockhart J in HREOC v Mount Isa Mines at 321-2. His Honour held that the phrase “by reason of” in s 5(1) of the SD Act should be interpreted as meaning “because of”, “due to”, “based on” or words of similar import which bring something about or cause it to occur. See also Thomson v Orica at [159]-[161], 227-8. The “but for” test may be employed as a “useful checking exercise” but does not usually constitute a satisfactory enquiry, at least without considerable care: HREOC v Mount Isa Mines at 326. I proceed on the basis that the use of the phrase “because of” in s 7, in contrast to “by reason of” in ss 5(1) and 7A, is not intended to indicate a difference in meaning and effect: Thomson v Orica at [17], 190.
Section 8 of the SD Act addresses the circumstance of actions done by reason of two or more matters. It deems that an act is done “by reason of” one of those matters even if that particular matter is not a dominant or substantial reason for the doing of the act. Section 8 applies to s 7 despite using the phrase “by reason of”: Thomson v Orica at [20], 190.
Much has been written on the relevance of motive, purpose and intention in the context of anti-discrimination legislation: Purvis v State of New South Wales [2003] HCA 62 at [236]; (2003) 217 CLR 92 at 163; Thomson v Orica at [158]-[161], 227-8; HREOC v Mount Isa Mines at 324-5. For present purposes, it is sufficient to observe that an applicant need not establish an intention or motive to discriminate, but proof of such a motive or intention may be relevant to the question of whether, in all the circumstances, discrimination has occurred: HREOC v Mount Isa Mines at 325; Thomson v Orica at [161], 228; Purvis v NSW at [236], 163.
Sections 5(1), 7(1) and 7A require a comparison between an applicant’s treatment, on the one hand, and a hypothetical person in the applicant’s position but without the relevant characteristics of the applicant, on the other: Thomson v Orica at [121]-[122], 216-7; Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702 at [42]; (2008) 173 IR 378 at 392. This has been found to mean that, in considering the complaints made by the present applicant arising from her taking parental leave, the relevant comparitor is not a person with the same skills and experience as the applicant but who did not take any leave: Thomson v Orica at [121]-[122], 216-7. Instead, the person whose treatment is to be compared with that of the applicant is a hypothetical similarly graded Facilities Manager, with the applicant’s experience, who took 12 months’ leave with SYC’s consent and with an equivalent right to a return to work: Thomson v Orica at [121]-[122], 216-7; Sterling Commerce v Iliff at [42], 392. The applicant accepted that this is the appropriate test.
I will refer to s 28B of the SD Act, which proscribes sexual harassment, later in these reasons.
By s 106 of the SD Act, an employer will be vicariously liable for acts done by an employee in contravention, amongst other things, of ss 14 and 28B unless the employer establishes that it took all reasonable steps to prevent the employee from doing acts of the unlawful kind (subs (2)). SYC did not seek to invoke this proviso. It denied that the conduct alleged against Mr Edginton, Mr Furniss, Ms Gillies, Mr Dyer and Ms England had occurred but acknowledged that if, contrary to that denial, the conduct had occurred, it would be liable pursuant to s 106 of the SD Act.
The Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) provides the means of redress for conduct which is made unlawful by Part II of the SD Act. Section 3(1) of the AHRC Act defines “unlawful discrimination” to include any acts, omissions or practices which are unlawful under (relevantly) Part II of the SD Act. Sections 14 and 28B of the SD Act, which proscribe “sexual discrimination” and “sexual harassment” respectively, are contained within Part II of that Act.
A complaint of unlawful discrimination is to be dealt with initially by the President of the Australian Human Rights Commission (AHRC) (s 46PD). If the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation, the President may terminate the complaint (s 46PH(1)). Once a complaint is terminated, a complainant may apply to this Court under s 46PO(1) of the AHRC Act. That is what the applicant has done in the present case.
The evidence did not disclose the precise nature or origins of SYC’s corporate status. It was not suggested that the provisions in the SD Act and the AHRC Act were inapplicable to it.
Statutory provisions: the FW Act
I will identify the relevant provisions of the FW Act when determining the applicant’s claims under those provisions.
The witnesses
The applicant gave evidence and, in addition, adduced evidence from Mr Saunders and Ms Poppy, both of whom were previously employees of SYC.
In many respects, the applicant presented well as a witness. She was willing to answer questions directly and, on occasions, to make concessions which were seemingly against her interests. However, I consider that the applicant’s evidence was coloured significantly by her belief that she had been targeted for dismissal because of her pregnancy, a belief which I consider to be erroneous. There were several matters on which I consider that the applicant’s evidence was affected by a retrospective rationalisation of the circumstances to fit or to support this erroneous belief. The effect is that I consider significant portions of the applicant’s evidence to be unreliable.
I consider the evidence of Mr Saunders to be reliable and will refer in the course of these reasons to the evidence of Ms Poppy.
At the commencement of the trial, the applicant sought leave to adduce evidence, pursuant to s 97 of the Evidence Act 1995 (Cth), from two witnesses: Ms Poppy and Ms Curnow. This was tendency evidence. I refused leave altogether in relation to the proposed evidence from Ms Curnow and granted leave in respect of a portion only of the foreshadowed evidence of Ms Poppy. I said that I would give reasons for that ruling when delivering these reasons. The reasons for the ruling are published as Stanley v Service to Youth Council Incorporated (No 2) [2014] FCA 644.
SYC adduced evidence from its Chief Executive Officer, Mr Edginton, its former Chief Financial Officer, Mr Matthews, its Chief Operating Officer, Mr Furniss, its Manager – Property and Assets, Ms England, its Human Resources Advisor, Mr Dyer, and its Executive General Manager – People and Culture, Ms Gillies. I regarded the evidence of Mr Edginton, Mr Matthews, Mr Dyer and Ms Gillies as generally honest and reliable and, for the most part, I accept the evidence of Mr Furniss and Ms England.
Background
Most of the matters which I recount in this section of the reasons were non-contentious. When necessary, I will identify areas of contention and make findings concerning them.
SYC is a not-for-profit organisation which commenced operations in 1958. Its purpose is the assistance of young disadvantaged persons. SYC provides assistance to young people in obtaining employment, housing, training and provides “well-being services”.
Over the last decade or so, SYC has experienced considerable growth. It now has operations in South Australia, Victoria, New South Wales and Queensland, and employs some 450 persons. SYC has 39 housing units and 20 houses under management.
SYC’s Helping Young Persons Achieve (HYPA) Division provides temporary housing for young people at risk of becoming homeless.
The applicant commenced employment at SYC on 16 November 2009 in a position entitled “Project Manager – Facilities Management”. Initially, her employment was for a fixed term but she was made permanent on 13 September 2010. At the same time, her position was re-described as “Facilities Manager”. The applicant’s duties as Facilities Manager included managing and maintaining the premises of SYC; establishing and delivering all facilities-related services (such as cleaning, preventative maintenance and attending to breakdowns) at over 30 individual sites in Adelaide and Melbourne; hands-on operational management of each site; developing specifications for, and the assessment of, contract tenders; assessing and engaging contractors and suppliers; identifying and assessing occupational safety hazards; and undertaking audits to ensure compliance with applicable legislation and regulations. At the time of the applicant’s termination, her salary was $71,428 per annum.
Before 11 February 2011, the applicant reported to Mr Lemmey, SYC’s Corporate Services Manager. Mr Lemmey had responsibility for the management of both the Property and Assets Department (the P and A Department) and the Information and Communications Technology Department. Mr Lemmey reported directly to Mr Edginton, the CEO.
The P and A Department, in which the applicant worked, comprised three staff, being Mr Lemmey, the applicant and a Mr Ellbourn, who had the title “Property and Infrastructure Coordinator”.
Mr Lemmey resigned from his employment at SYC on Friday, 11 February 2011. Mr Furniss assumed responsibility for the P and A Department, with the effect that the applicant and Mr Ellbourn then reported to him.
The applicant said that, on the day of Mr Lemmey’s departure, she informed Mr Furniss of her pregnancy, and of her intention to take parental leave closer to her due date. She said that Mr Furniss responded by saying “congratulations” and that he was “shocked”. The applicant said that Mr Furniss then made the remarks which are the subject of her sexual harassment claim, which I will detail later.
The applicant also complained of Mr Edginton’s conduct at the time she announced her pregnancy and thereafter. She said that at the morning tea on 11 February to farewell Mr Lemmey, she began telling colleagues that she was pregnant. She said that Mr Edginton was standing within earshot of the group whom she told of the pregnancy. Although the other employees congratulated her on the pregnancy, Mr Edginton did not do so and did not join in the conversation. The applicant said:
I remember feeling awkward about his lack of response; I didn’t expect “gushing” but his total lack of response made it seem like I had done something wrong.
The applicant went on to say that Mr Edginton’s attitude towards her changed after her announcement of her pregnancy. She claimed that she and Mr Edginton had often had “chats”, but that this did not occur after her announcement. This made her feel “awkward, uncomfortable and embarrassed” around Mr Edginton. In her cross-examination, the applicant acknowledged that the “chats” were in the nature of exchanges of pleasantries when she and Mr Edginton passed one another incidentally in the office and that her work relationship with Mr Edginton had not been close.
Mr Edginton did not recall the applicant announcing her pregnancy at Mr Lemmey’s farewell. He acknowledged that he may have heard at that time of her pregnancy but said that his absence of reaction, as described by the applicant, was consistent with the limited nature of his relationship with her at the time. He denied that his attitude towards the applicant had changed because of the announcement of her pregnancy.
I accept Mr Edginton’s evidence on this topic. I am satisfied that, as CEO, he did not have the kind of contact or relationship with the applicant in February 2011 which would have made it natural for him to offer congratulations to her so that any inference could reasonably be drawn from his omission to do so. I consider that this aspect of the applicant’s evidence is an example of her retrospective rationalisation of events so as to give them a more sinister connotation than is appropriate.
As already noted, Mr Furniss, the Chief Operating Officer, assumed responsibility for the P and A Department after Mr Lemmey’s departure. SYC contemplated that this would be a temporary arrangement and that, after the implementation of a review of its information and communications technology requirements and the recruitment of a new manager, responsibility for the P and A Department would pass to Mr Matthews, the CFO. In essence, SYC proposed altering the role previously performed by Mr Lemmey so as to make it more “operational”. Mr Lemmey’s replacement would not have responsibility, as did Mr Lemmey, for information and communication technology.
In April 2011, SYC advertised the position of “Property and Assets Manager”. Ms England was the successful applicant and commenced on 1 June 2011.
On 19 May 2011, the applicant submitted her request for parental leave. This was for annual leave commencing on 1 August 2011, paid parental leave under the Paid Parental Leave Act 2010 (Cth) commencing on 19 September 2011 and, in effect, unpaid leave commencing on 23 January 2012. SYC granted that request.
In the period between Ms England’s commencement on 1 June 2011 and the applicant’s departure on leave on 1 August 2011, the P and A Department comprised Ms England, the applicant and Mr Ellbourn. During this period, Ms England was familiarising herself with the functions of the P and A Department. She said that she was assessing an appropriate employment structure by which to carry out those functions. Ms England reported to Mr Matthews.
On 22 June 2011, SYC advertised internally and externally for a Property and Assets Coordinator. The advertisement indicated that the advertised position was “a 12 month parental leave relief position”. Ms England said (and I accept) that she had not then had sufficient time to determine how best to structure the P and A Department for the long term. Given the applicant’s pending parental leave, her recommendation was that Mr Ellbourn should “step up into” the applicant’s role and for SYC to replace Mr Ellbourn during the applicant’s absence. Mr Matthews approved that course of action. Hence, the advertisement of 22 June 2011 related to Mr Ellbourn’s then position but properly described it as a parental leave relief position. The position was available only because Mr Ellbourn was filling the applicant’s position during her absence on parental leave.
However, SYC did not proceed with the recruitment of a Property and Assets Coordinator. During the interview period, Ms England formed the view that a different structure was appropriate. She considered that both Mr Ellbourn and the applicant spent too much time performing routine administrative work and that the division of roles between them was inappropriate. Accordingly, Ms England recommended that, instead of recruiting a Property and Assets Coordinator, SYC employ someone to provide administrative assistance. Mr Matthews approved this recommendation and a Ms Young was employed as the administrative assistant. Ms Young commenced on 3 August 2011. Her salary, being of the order of $50,000 per annum, was more than $20,000 less than that of the applicant. Ms Young’s letter of appointment specified that her employment was “for a period of up to 12 months depending on the return of the employee on parental leave”. That employee was the applicant.
Ms England said, and I accept, that after the commencement of Ms Young, the P and A Department operated in a tiered manner: in a broad sense, she performed the more complex tasks; Mr Ellbourn, tasks at a middle level of complexity; and Ms Young, administrative tasks supporting both. I accept that the P and A Department continued in this three-tiered way until (and after) the termination of the applicant’s employment.
The applicant was aware of the changes in the P and A Department before commencing her leave. She said, and I accept, that they caused her concern. The matters causing her concern included her appreciation that the new manager’s position would incorporate a significant portion of her own duties. The applicant enquired of Mr Matthews whether she would still have a job to which she could return. Mr Matthews responded by saying that he could not answer that at that time. The applicant deposed that she then became “very concerned” about her job and “felt strongly that SYC was trying to get rid of [her]”.
The applicant enquired of Ms Downie, an HR Advisor at SYC, whether she would have a job to which she could return after her parental leave. Ms Downie gave advice to the applicant to the following effect:
SYC must hold your position open, otherwise they will need to find you an alternative role.
…
You can take a maximum of one year off first and SYC must keep your job for you. Then, if you wanted to, you could apply for another 12 months off. If you want to come back part-time, SYC must try to accommodate this.
Although these remarks appear to have been of a reassuring kind, the applicant deposed:
I was very scared, hurt and humiliated by this time. I felt that SYC were not even trying to hide their adverse treatment to me. They seemed to enjoy taking advantage of me during my pregnancy because I was never made to feel comfortable in my role after announcing my pregnancy.
In cross-examination, the applicant said that it was Mr Matthews and Mr Furniss who she considered were enjoying taking advantage of her.
When commencing her leave, the applicant was required to hand back to SYC her mobile phone and her building access, car park access, and company credit cards. She said that she felt “a little offended” at being required to hand over these items, especially as the first part of her leave was annual leave. She claimed that her entitlement to the car park was a term of her contract of employment.
As previously noted, the applicant’s child was born on 20 August 2011.
On 27 October 2011, the applicant noted that she was due to provide an updated police clearance and wished to attend to that whilst she was still on leave. She sent an email that day to Ms England enquiring whether she could organise the clearance whilst on leave. Ms England responded the same day, informing the applicant that she would make enquiries as to what needed to be done. As will be seen later, Ms England had already decided by this time, or within a further few days, that the applicant’s position as Facilities Manager was no longer required. However, she did not inform the applicant at that time of that decision and did not ever provide the details concerning the obtaining of the police clearance which the applicant had requested.
In December 2011, the applicant began to contemplate returning to work earlier than the previously foreshadowed date of 31 July 2011. On 12 December 2011, she sent an email to SYC addressed to Ms England asking if it would be possible for her to return to work in April or May 2012, and enquiring whether she could return on a part-time basis, having regard to her proposed childcare arrangements.
Ms England responded with an email on 19 December 2011 indicating that she would arrange a meeting in the New Year to discuss return to work options.
When the applicant had not heard from Ms England by 25 January 2012, she sent a further email to Ms England, asking:
Just wondered if you were still wanting to meet to discuss me returning to work?
Unbeknown to the applicant, Ms England and Mr Matthews had decided, by at least 4 November 2011, that the position of Facilities Manager was redundant. The applicant first learned of that decision at a meeting on 7 February 2012, which Ms England arranged in response to the applicant’s email of 25 January.
The participants in the meeting on 7 February 2012 were the applicant, Mr Dyer and Ms England. Ms England told the applicant that SYC had conducted an organisational review of its management services operations and that her position as Facilities Manager had been selected on a “preliminary basis” for redundancy. This was because the P and A Department was operating efficiently with the existing employment structure, and the role which she had previously performed as Facilities Manager had been absorbed into the other roles within the Department. At the meeting, the applicant was given a letter, signed by Ms England, the substantive part of which was as follows:
Service to Youth Council has recently conducted an organisational review of its Management Services operations. As a consequence we advise that your position of Facility Manager has been selected on a preliminary basis for redundancy. This letter, however, does not constitute notice of termination of employment.
Accordingly we advise that you are required to attend a meeting with me at 10.00am on Tuesday, 14 February 2012 here at Level 6, 50 Grenfell Street, Adelaide. The purpose of the meeting will be to discuss the possible redundancy of this position and to discuss any alternatives to the termination of your employment as well as any proposals and suggestions that you may have. We will also discuss other ways of mitigating any adverse effects should no alternative be agreed. You may bring a support person to the meeting if you prefer.
Should it not be possible to reach an alternative agreement, you will be provided with pay in lieu of notice and any severance payments in respect of your termination on the grounds of redundancy.
We would ask that you put any submissions or suggestions that you may have in writing to us by no later than 5.00pm on Monday, 13 February 2012.
Please contact Lee Dyer at any time prior to the meeting on 14 February 2012 if you wish to discuss matters further.
The applicant asked if the Administrative Assistant’s position being performed by Ms Young was available, but was told it was not. She was also given a print-out of SYC’s current vacancies and asked to consider whether she was interested in applying for any of those.
The applicant attended the further meeting on 15 February (rescheduled from 14 February) with her solicitor, Ms Murray. SYC’s lawyer, Mr Short, was also present. Ms Murray indicated that the applicant did not regard any of the alternative roles as being suitable, having regard to her skills and qualifications. Mr Short responded by saying that SYC agreed and that, because no other suitable position could be found, SYC was making the position of Facilities Manager redundant and was terminating the applicant’s employment. Ms England then read a prepared statement and provided a letter to the applicant dated 15 February 2012. The letter had the same content as the statement read by Ms England. The body of the letter was as follows:
We refer to our earlier meeting of 7 February 2012.
In the interim period we have been unable to identify any alternative position which is reasonably suitable to your skills and experience. You have also been unable to provide us with any suggestions or suitable alternative positions for us to consider.
We now confirm that we have decided to make your position of Facility Manager redundant effective immediately. This decision in no way reflects upon your work performance or conduct. This decision is based purely on operational grounds.
As a consequence, we advise that your employment with SYC will cease effective immediately. Severance pay, payment in lieu of notice and any annual leave owed to you will be paid out by electronic transfer to your nominated bank account.
We would like to thank you for your contribution to SYC and to wish you all the best for the future.
The applicant’s employment was then terminated. She received a payment comprised of her annual leave credit, four weeks’ pay in lieu of notice, and a severance payment of four weeks’ pay.
I will return to relevant events occurring subsequent to the termination later in these reasons.
The claim of sexual harassment
The applicant’s claim of sexual harassment relates to the comments said to have been made by Mr Furniss on 11 February 2011 when she first informed him of her pregnancy. Two issues arise in relation to this claim: did Mr Furniss make the comments alleged; and, if so, should his comments be characterised as sexual harassment?
The applicant’s evidence was that, after Mr Furniss had responded to the news of her pregnancy with “congratulations” and by saying he was “shocked”, he had then told her not to make any “hasty” commitment as to the date on which she intended to return to work because she may decide later that she would like more time off, or because she may decide that she did not wish to return to work at all. The applicant’s evidence-in-chief (given in the form of an affidavit) then continued:
59.… He explained that this was because when his wife … had their first child, that she found it difficult to return to work and ended up not returning to her employment and [became] a stay-at-home mum. He went on to tell me that he and his wife had earlier considered having another child but felt that it was probably now too late as their son … was four years old and the age gap would be too great. His tone of voice seemed to be one of disappointment, and I felt very uneasy.
60.I was quite surprised by Mr Furniss’ comments. I remember thinking that he should not think that just because his wife did not cope with returning to work, it does not mean that I can’t cope and return to work, and I thought it was offensive that he seemed to make an assumption about my ability or desire to return to work after having my baby. …
61.I remember feeling it was totally inappropriate for Mr Furniss to be speaking to me in this way and that he should know better, as the COO, than to have discussions with me that could easily make me think that he doubted my ability or desire to return to work after maternity leave.
62.I didn’t say anything as I remember thinking that I did not want to be seen as being a troublemaker, but it felt by virtue of telling him about my pregnancy that I already was a troublemaker, or a nuisance in some way.
63.I remember feeling violated by the COO’s comments to me concerning my pregnancy. I knew that this was a conversation that a male employee would never have to have with Mr Furniss. I felt “sexualised”. I felt “harassed”. I felt that I had been “sexually harassed”. I felt violated. I also did not care to know that he and his wife had considered having another child. I did not ask him for the information and felt he offered it to me too freely. Mr Furniss’ comments were also given in a tone that made me feel concerned and not at all like he was trying to be helpful or understanding.
The applicant said that she had not made any complaint to anyone within SYC concerning the comments of Mr Furniss. She explained that she had felt that it was too difficult to do so and may compromise her employment further. The applicant also said:
I felt that Mr Furniss’ comments could be seen to have a superficial appearance of trying to care or reaching out to me to show support, but this was a veil for his true intentions, which was that I not return to the workplace.
To support her claim that Mr Furniss had made the impugned comments, the applicant led evidence from Ms Poppy. Ms Poppy had previously been employed by SYC in the position of Marketing Manager. Her employment was terminated on 25 June 2010 (with effect from 23 July 2010). As in the applicant’s case, the termination occurred while Ms Poppy was on parental leave and was on the stated ground of redundancy. Ms Poppy has also brought proceedings in this Court in relation to that termination.
Ms Poppy commenced parental leave on 18 February 2010. She deposed to a conversation with Mr Furniss not long before she commenced that leave. She said that Mr Furniss asked her “what my plans were and how long I was planning to have off work”. Ms Poppy said that in the course of the conversation Mr Furniss said words to the following effect:
Don’t commit to a return to work date. … Don’t make a decision too quick, you might need longer off.
And later:
My wife couldn’t cope and quit work.
Ms Poppy said that she responded with words to this effect:
I know that I will want to come back. I don’t want to put my career on hold. I can be a mum and have a career. I know what I am like and I will return after having four months off. Financially I need to return to work.
There are some obvious similarities between the statements which each of the applicant and Ms Poppy attribute to Mr Furniss. Those are the statements concerning not making an early decision as to the date of return to work, the foreshadowing that each may wish to have longer off work than they originally contemplated, and the statement that Mr Furniss’ own wife had found it difficult to cope and ultimately had not returned to work at all.
Mr Furniss acknowledged that it was likely that he had congratulated the applicant on her pregnancy, but denied making the remainder of the remarks attributed to him. He said that, prior to February 2011, he had had minimal involvement with the applicant; that he had not had any expectations about her becoming pregnant or otherwise; that there was no reason for him to be “shocked” by her announcement; and that he had not spoken at all with the applicant about his own wife and son. Mr Furniss also said that an additional reason for him not having made the statement to the effect that his wife had been unable to cope and had ceased work after the birth of his son was that it was not true. He said that she had in fact returned to work some six months after the son’s birth and had remained in part-time work ever since.
There was a difference between the applicant and Mr Furniss as to whether their conversation had occurred on 11 or 15 February 2011. Nothing turns on the precise date of the conversation, although I think it more likely that the applicant is correct.
In relation to Ms Poppy’s evidence, Mr Furniss said that he had no recollection of making any comments at all regarding her pregnancy. He said that, as in relation to the applicant’s claim, the statements which Ms Poppy attributed to him were not the sort of things that he says and that he regarded the suggestion that he had made them as “offensive”.
In some cases, the presence of striking similarities in the evidence of independent witnesses when there has been no possibility of collusion or influence is highly probative that the alleged events did occur. That is so, because the similarities in the evidence of witnesses who are independent of one another raises, as a matter of commonsense and experience, the objective improbability of the events having occurred other than as claimed by the witnesses (Hoch v The Queen (1988) 165 CLR 292 at 294-5; Pfennig v The Queen (1995) 182 CLR 461 at 481-4, 507).
However, the applicant and Ms Poppy were not independent witnesses and there has been the opportunity for the evidence of one to have influenced the evidence of the other. The applicant acknowledged that she had discussed the comments which she attributes to Mr Furniss with Ms Poppy. Ms Poppy acknowledged that she and the applicant had “provided one another support” in relation to their terminations by SYC and that they had spoken in detail about what had happened to each of them, even before lodging their complaints with the AHRC. This means that there is a significant risk that their respective accounts have been affected, consciously or unconsciously, by their discussions.
These circumstances mean that the striking similarity between the applicant’s and Ms Poppy’s evidence does not have the significance which would otherwise attach to it. That does not mean of course that the evidence has no significance.
SYC also drew attention to the circumstance that the remarks attributed to Mr Furniss had not been part of the applicant’s original complaint to the AHRC (which had been made on the applicant’s behalf by Ms Murray) on 18 June 2012. It submitted that the fact that the applicant did not raise Mr Furniss’ comments in that complaint is significant given her description of her contemporaneous reaction to those remarks, namely, that she had felt “violated”, “sexualised” and “sexually harassed” by his comments.
The premise for this submission of SYC is correct. The original complaint to the AHRC made no reference to the comments now alleged to have been made by Mr Furniss. The AHRC was not told of his alleged remarks until 17 October 2012. It is possible that the applicant also raised the remarks at the conciliation conference held on 10 October 2012, but she was uncertain about that.
I consider that this submission of SYC has considerable force. If the remarks had been made and the applicant had had the reaction which she described, I would have expected Mr Furniss’ comments to have formed part of the original complaint. That is especially so in light of the applicant’s claim that she had reached the conclusion, at the end of the conversation with Mr Furniss, that he intended to prevent her from returning to work and was being insincere in his comments to her. In those circumstances, the fact that the applicant did not refer at all to the conversation with Mr Furniss in her complaint to the AHRC militates against a finding that Mr Furniss did make all of the remarks which the applicant attributes to him.
I accept Mr Furniss’ evidence that his wife had returned to work some six months after the birth of their son. That being so, it is improbable that he made a statement to either the applicant or Ms Poppy to the effect that his wife had had difficulty in coping and ultimately had not returned to work, and I find that he did not. That does not exclude the possibility that Mr Furniss may have said something to the effect that his wife had resumed on part-time work rather than full-time work because of difficulties which she had experienced, but that is not the form of statement which either the applicant or Ms Poppy attributed to him.
I also consider that it is improbable, in the context of the applicant’s announcement of her pregnancy, that Mr Furniss would have discussed the family plans of his wife and himself, or the reasons for their not having had a further child and, again, I find that he did not.
I reject the applicant’s evidence that Mr Furniss made the statements which she attributed to him in [59] of her affidavit quoted earlier in these reasons.
My rejection of these aspects of the applicant’s evidence could lead naturally to a rejection of the whole of her evidence concerning the statements said to have been made by Mr Furniss. However, I consider that the evidence of the applicant and Ms Poppy that Mr Furniss said words to the effect that they should not be committing themselves firmly to a return to work date, and that they should allow for the possibility that they may wish to have more time off work than they originally planned, is in a different category. Statements to that effect are, in my opinion, consistent with the general approach which Mr Furniss described in the affidavit containing his evidence-in-chief:
My approach to parental leave generally is to tell people that they should keep in touch regarding their return to work and communicate regarding when they would like to do so. This is a more practical approach than asking for a set return date, as this date is often difficult to predict.
It is therefore plausible that Mr Furniss did make remarks of this particular kind and I am prepared to find that he did.
This leads to consideration of the second issue: do Mr Furniss’ statements to the applicant that she should not make a “hasty” commitment to a return to work date because she may decide later that she would like more time off, or not to return to work at all, constitute proscribed sexual harassment?
Section 28B(2) of the SD Act makes it unlawful for an employee to harass sexually a fellow employee.
“Sexual harassment”, for the purposes of s 28B, is defined in s 28A as follows:
(1)For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(1A)For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a)the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b)the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c)any disability of the person harassed;
(d)any other relevant circumstance.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
The applicant did not contend that Mr Furniss’ remarks should be characterised in terms of subs (1)(a). She contended instead that his remarks amounted to “unwelcome conduct of a sexual nature” in circumstances in which a reasonable person would have anticipated the possibility that she would be offended, humiliated or intimidated and therefore attracted subs (1)(b).
Section 28A(2) elaborates the expression “conduct of a sexual nature” to make it plain that it includes statements of a sexual nature, but the SD Act does not otherwise define the expression. In context, it appears to connote conduct involving or evidencing sexual attraction, instinct, activity or relationships. The expression may have a broad scope, and a wide range of matters may be able to be characterised as constituting conduct of a sexual nature. However, the expression is not without limits. Essentially it requires that the conduct be characterised as sexual, or sexually-related. In Poniatowska v Hickinbotham [2009] FCA 680 at [294], Mansfield J said that the term “conduct of a sexual nature” involves “some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour”. Mansfield J did not, however, attempt to set the outer bounds of the expression “conduct of a sexual nature”.
Whether conduct should be so characterised is to be determined objectively and does not depend upon the subjective intention of the actor.
The objective standard incorporated in the second limb of the definition relates to the position of the actor, and not to the response or reaction of the subject of the conduct. The question is whether a reasonable person would have anticipated that the subject would be offended, humiliated or intimidated.
The applicant’s counsel emphasised that the expression “conduct of a sexual nature” is to be interpreted broadly but beyond making the bald submission that the comments were of a sexual nature, did not indicate how the comments could be characterised in that way.
In my opinion, Mr Furniss’ statements to the applicant about her decisions in relation to a return to work cannot reasonably be characterised as “conduct of a sexual nature” in relation to the applicant. Those comments did not involve or evidence sexual attraction, instinct, activity or relationships. Instead, they appear to be in the nature of a well-intentioned, if unsolicited, suggestion to the applicant concerning her own interests. Even if from the applicant’s perspective the suggestion was gratuitous and unwanted, it was not conduct of a sexual nature.
I specifically reject the characterisation of Mr Furniss’ remarks for which the applicant contended in the written opening of her case, namely, that the remarks should be understood as a lecture by Mr Furniss to the applicant as to the negative impact of her pregnancy on her career and that it was “an error on [her] part to exercise her reproductive rights, or at least so far as her employment was concerned”. The remarks which I have accepted were made do not warrant such a characterisation.
Accordingly, I reject the applicant’s claim that Mr Furniss’ remarks to her on 11 February 2011 amounted to sexual harassment and reject her claim that SYC is responsible for that conduct.
In his final submissions, counsel for the applicant also submitted that Mr Furniss’ comments on 11 February 2011 constituted discrimination on the ground of the applicant’s pregnancy, parental leave and family responsibilities. Counsel relied for this submission on s 14(2)(d) of the SD Act, contending that the remarks had subjected the applicant to a detriment on account of the proscribed matters. The detriment was said to lie in the emotional effect which the remarks had on the applicant because they “made her feel like an assumption was being made about her ability or desire to return to work after having a baby”.
The applicant had not pleaded this claim in the ASC. Nor did counsel indicate in the written or oral opening that the statements of Mr Furniss should be characterised in this way. This indicates by itself that the submission should be rejected.
I consider, however, that the submission should fail in any event. First, I do not accept that Mr Furniss’ remarks left the applicant feeling “violated”, “sexualised”, “harassed” and “sexually harassed”, or as though some assumption was being made about her ability to return to work after having a child. In my opinion, the applicant’s characterisation of her feelings in that way is a significant exaggeration and is a product of a retrospective reconstruction. I accept that the applicant may well at the time have considered the remarks to be gratuitous and unwanted, but no more than that. I consider it probable that the applicant’s reflection on the injustice which she perceives SYC has done to her by terminating her employment has led to an embellishment in her own mind of her reaction at the time to the remarks of Mr Furniss.
Secondly, I am not satisfied that the emotional effect claimed by the applicant amounts to a detriment of the kind to which s 14(2)(d) refers. There are circumstances in which sexual harassment will also amount to sex discrimination (Elliott v Nanda [2001] FCA 418 at [127]; (2001) 111 FCR 240 at 281; Leslie v Graham [2002] FCA 32 at [73]; Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 274-7; cf Gilroy v Angelov [2000] FCA 1775 at [102]; (2000) 181 ALR 57 at 75), including when the harassment subjects the employee to detriment in the form of a hostile, demeaning or oppressive workplace environment (Kraus v Menzie [2012] FCAFC 144 at [84]). But the detriment to which subs 14(2)(d) refers must affect the applicant’s employment in some respect: Kraus v Menzie at [81]-[84]. On my findings, the applicant did not suffer a detriment of that kind.
For these reasons, the applicant’s alternative claim based on the remarks attributed to Mr Furniss is rejected.
Termination of employment
The applicant’s principal claim was that SYC had contravened s 14 of the SD Act by terminating her employment on the ground of her pregnancy, parental leave or family responsibilities. The submissions made on her behalf in relation to this claim tended not to distinguish between ss 5(1), 7(1) and 7A of the SD Act, but nothing turns on that presently.
The applicant’s claim that she was terminated by reason of her pregnancy, parental leave and family responsibilities was based on an accumulation of inferences which she submitted should be drawn from conduct of the respondent in the period between 11 February 2011 and 15 February 2012. The applicant acknowledged that there was no direct evidence of discrimination and that her case was a circumstantial one.
I commence by identifying the principal matters on which the applicant relies.
First, the applicant pointed to the fact that her employment at SYC had been regarded as satisfactory, evidenced by her having been made permanent on 13 September 2010, by the fact that she had been given the title “Facilities Manager”, and by her satisfaction of the key performance indicators relating to her position.
Secondly, the applicant relied on the reaction of Mr Furniss and Mr Edginton on 11 February 2011 when she announced her pregnancy. I have already made findings concerning their conduct and state now that I do not regard the applicant’s evidence of their reactions (in Mr Edginton’s case, absence of reaction) as supporting the inferences for which the applicant contends.
The applicant also relied on one further aspect of her conversation with Mr Furniss on 11 February 2011. She said that, during the conversation, Mr Furniss said, with reference to Mr Ellbourn, “it looks like his job is now safe” and went on to suggest that he had had plans to look at Mr Ellbourn’s future within SYC having regard to his work performance and the difficulties which the applicant had experienced in managing him. The applicant said that she “instantly knew” what Mr Furniss meant by the statement “it looks like his job is now safe”, but did not indicate what her understanding had been.
Mr Saunders, who was called by the applicant, gave evidence that Mr Furniss had spoken to him about some concerns relating to Mr Ellbourn’s work performance. However, the Court did not hear any detailed evidence of those concerns, and did not hear evidence from Mr Ellbourn at all. In those circumstances, I make no finding as to whether any concerns which Mr Furniss had were justified.
I am willing to accept that Mr Furniss did make a remark concerning Mr Ellbourn of the kind which the applicant attributed to him but find that it meant no more than that SYC may put to one side its concerns about Mr Ellbourn in order that it may have the benefit of his experience in the period when it would not have the applicant’s services. I reject the suggestion that it supports an inference that Mr Furniss had decided then and there that the applicant’s employment should be terminated because of her announced pregnancy and impending parental leave and family responsibilities, and Mr Ellbourn be retained instead.
For these reasons, the applicant does not establish a breach of s 84.
Imposition of a penalty
The applicant sought a variety of remedies. These included declarations, an injunction, orders requiring the respondent to provide training to its employees concerning unlawful discrimination and to provide a published apology, reinstatement of employment, the imposition of penalties and an award of compensation.
The only breach by SYC which I have found to be established is the breach of s 65 of the FW Act.
The applicant sought the imposition of a penalty in respect of any breach of the National Employment Standards which was established. The respondent submitted that the breaches alleged by the applicant were minimal with the effect that the Court could appropriately not award any penalty at all. The Court is empowered to award a pecuniary penalty: s 546(1) of the FW Act. The maximum penalty for a contravention of s 65 which was applicable at the time of SYC’s contravention was $33,000.
The principles applicable to the imposition of penalties are well-established and it is not necessary to rehearse them in these reasons. I refer to Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560; Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1246 at [40]; (2008) 177 IR 61 at 69; Temple v Powell [2008] FCA 714 at [56]-[78]; (2008) 169 FCR 169 at 186-91; and Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040; (2009) 189 IR 304. The matters to which the Court will have regard include:
(a) The nature and extent of the conduct which led to the breach;
(b) The circumstances in which that conduct occurred;(c)The nature and extent of any loss or damage sustained as a result of the breach;
(d) Whether there has been any similar previous conduct by the respondent;
(e) The size of the business enterprise involved;
(f) Whether or not the breach was deliberate;
(g) Whether senior management was involved in the breach;
(h) Whether the party committing the breach has exhibited contrition;(i) Whether the party committing the breach has taken corrective action;
(j) The need for specific and general deterrence.In the present case, I am satisfied that SYC’s failure to respond within 21 days in the required fashion to the applicant’s request of 12 December 2012 was inadvertent. Generally, I accept that SYC does endeavour to comply with its employment obligations, including its obligations under the FW Act. I also accept that SYC was probably distracted from complying with its obligation to make a timely and adequate response to the applicant’s request of 12 December 2011 by the circumstance that it had, before receiving that request, decided that the applicant’s position was redundant and that the termination of her employment was appropriate. The applicant did not suffer any loss as a result of SYC’s breach.
SYC has expressed contrition for any breach. Unfortunately, that expression of contrition is weakened, in my opinion, by the attitude which SYC took in these proceedings to the applicant’s email of 12 December. As noted earlier, it submitted that the email did not enliven the obligation under s 65 because it was not a “request” of the requisite kind and did not include reasons for the change in working arrangements requested by the applicant. I expressed surprise when that submission was made and asked counsel for SYC to confirm that the submission was made on the express instructions of SYC. After the luncheon adjournment, counsel gave that confirmation. To my mind, this evidences a somewhat niggardly view by SYC of the email of 12 December 2011 and undermines its present expressions of contrition.
I accept that SYC has not been the subject of any proceedings concerning a breach of the FW Act in the past and that considerations of specific deterrence do not rank highly in its case. Considerations of general deterrence are, however, applicable.
Finally, I record my satisfaction that SYC’s breach did not result in any pecuniary loss to the applicant.
In the circumstances, I consider that a pecuniary penalty of $4,000 is appropriate. That is the amount which I will impose. In accordance with usual principle (Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170 at [64]-[65]; (2008) 171 FCR 357 at 377), I will direct that that amount be paid to the applicant.
None of the other forms of relief sought by the applicant is appropriate. I will hear the parties as to costs.
Conclusion
For the reasons given above, I make the following orders:
(1)I declare that SYC breached s 44(1) of the FW Act in that it failed, as required by s 65(4) of the FW Act, to give the applicant a written response within 21 days to the request for a change in work arrangements contained in her email of 12 December 2011;
(2)Pursuant to s 546(1) of the FW Act, I order that SYC pay a pecuniary penalty of $4,000 in respect of its breach of s 65(4);
(3)Pursuant to s 546(3) of the FW Act, I order that this penalty be paid to the applicant;
(4)All other claims of the applicant in these proceedings are dismissed;
(5)I will hear the parties as to costs and as to any consequential matters.
I certify that the preceding two hundred and forty-three (243) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 20 June 2014
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