Tracey Elizabeth Abebe v Allforks and Equipment
[1996] IRCA 22
•31 January 1996
DECISION NO: 22/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - whether termination for reason of pregnancy - whether opportunity to respond to allegations - whether termination HARSH, UNJUST OR UNREASONABLE - APPLICATION dismissed.
INDUSTRIAL RELATIONS ACT 1988, Ss 170DC, 170DE, 170DF(1)(f), 170EA
Narelle Jones -v- Armas Nominees Pty Ltd, IRCA No.151/94, Millane JR, unreported, 22 December 1994
TRACEY ELIZABETH ABEBE -v- ALLFORKS AND EQUIPMENT -
WI 95/1950
BEFORE: BOON JR
PLACE: PERTH
DATE: 31 JANUARY 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1950
BETWEEN: TRACEY ELIZABETH ABEBE
- Applicant
AND: ALLFORKS AND EQUIPMENT
- Respondent
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 31 JANUARY 1996
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1950
BETWEEN: TRACEY ELIZABETH ABEBE
- Applicant
ALLFORKS AND EQUIPMENT
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 31 JANUARY 1996
REASONS FOR JUDGMENT
This is an application under Section 170EA arising out of the termination of the applicant's employment with the respondent. The applicant alleges that the provisions of the Industrial Relations Act 1988 have been breached in a number of ways.
In the first place, it is alleged that the employer terminated the applicant's employment for a prohibited reason, namely pregnancy, contrary to Section 170DF(1)(f). The respondent denies that the applicant's employment was terminated for the reason of pregnancy and says that the reason for the termination was poor work performance.
Secondly, the applicant alleges that she did not have an opportunity to respond to allegations related to her performance, as required under Section 170DC of the Act. The respondent admits that the applicant was never given any written warning but says that she was given a number of verbal warnings and was given an opportunity to respond to the allegations against her performance on 28 July 1995.
Finally, the applicant says that the termination did not occur for any valid reason and was in any event harsh, unjust or unreasonable within the meaning of Section 170DE of the Act. The respondent denies that the termination was harsh, unjust or unreasonable and says that there was a valid reason for the termination.
The applicant, Tracey Abebe, is 29 years of age. Before commencing employment with the respondent, Allforks and Equipment, Mrs Abebe had worked in the settlement agency industry. She had taken some time out of the workforce after the birth of her first child. Mrs Abebe commenced employment with the respondent on 13 March 1995, in the capacity of clerk/typist.
Allforks and Equipment is a small business primarily concerned with the sale and service of fork lifting equipment. The business is run by its managing director, Michael Du Crow, and his co-director, Dee Du Crow. Mr and Mrs Du Crow are both heavily involved in their church and Mr Du Crow's evidence was that 50% of all earnings of Allforks and Equipment each year is given for the purpose of building churches, hospitals and orphanages in India. Mr Du Crow is a Justice of the Peace and is involved in several community groups. Mrs Du Crow works as an interpreter for the deaf community and is also involved in marriage guidance counselling and the counselling of victims of sexual abuse. Mr and Mrs Du Crow have six children and four grandchildren.
Before Mrs Abebe was employed by the respondent, the position that she eventually came to occupy was held by Allison Holland. Mrs Holland left her employment with Allforks and Equipment when she was eight months' pregnant. Mrs Holland worked in the position three days per week between the hours of 9:30am and 4:00pm. When Mrs Abebe started in the position she was asked to work on a full-time basis, five days per week. Mrs Du Crow's evidence was that when she employed Mrs Abebe she had hoped to off-load some of her own duties on to Mrs Abebe, so that Mrs Du Crow would not need to go into the office as often as she had been doing. In addition, the business was due to start up a service division and it was thought that this may involve some extra work for Mrs Abebe. Although I am satisfied that with the introduction of the service division Mrs Abebe had found more demands placed on her time, the evidence suggests that those extra demands were not sufficient to occupy her for two full days per week.
The position of clerk/typist is a pivotal one within Allforks and Equipment. The person filling that role has to do a wide variety of work. The duties include doing the mail, the banking, the books, correspondence, filing, making the tea and cleaning the office. Mrs Abebe was required to keep the books of account. Mr and Mrs Du Crow were quite particular about the documentation produced by Mrs Abebe as Allforks and Equipment is a quality assured business.
For the first few weeks of Mrs Abebe's employment, Mrs Holland worked alongside her and showed her how to do the work. On 28 April 1995 Mrs Abebe was given a pay rise of $1,000 per year. It had been indicated to her when she started her employment on 13 March 1995 that she would receive this pay rise after about six weeks if her work performance was satisfactory. The pay rise took Mrs Abebe's annual salary to $23,000. Mrs Du Crow's evidence was that although there were some problems with Mrs Abebe's work performance even at that stage it was considered that these were just "teething" problems and were not such as to disqualify her from the promised pay rise.
The employer's records show that in late April to early May 1995, Mrs Abebe was spoken to on three occasions by her employer in relation to mistakes that she had made. Those mistakes were in her typing, in her invoices and in payments to creditors. The evidence of Mr and Mrs Du Crow was that although Mrs Abebe had been told several times to use the spell-check facilities on the computer she failed to do so and Mrs Du Crow eventually resorted to proof reading all of the out-going correspondence. Mrs Abebe's evidence is that nothing was ever said to her by her employer in relation to these errors. She said that the only thing that was pointed out to her was a fax that was going to China and which had the incorrect fax number typed on it. Mrs Abebe steadfastly denied that Mr Du Crow ever said anything to her about errors in invoices and business documents and about typing errors. For reasons which I shall deal with further below I preferred the evidence of the Mr and Mrs Du Crow over that of Mrs Abebe to the extent that there is any conflict.
In early May 1995, Mrs Abebe was away from work with the flu. At around the end of April or early May 1995 Mrs Abebe had discovered that she was pregnant, and was experiencing some difficulties with her pregnancy. On 12 May, 1995 Mrs Abebe informed Mrs Du Crow that she was pregnant and that she still wanted to work with the respondent's business. Mrs Abebe told Mrs Du Crow that she had booked a place in a child care centre for her baby and that she would like to come back to work two to three months after the baby was born. Mrs Abebe was very upset and emotional at the time of the conversation because she felt that she was letting her employers down. According to Mrs Abebe, Mrs Du Crow was very understanding and supportive and said that she should not be concerned about her job as something would be sorted out. Mrs Du Crow's notes of that conversation state as follows, "Tracey informed me that she is pregnant and of other personal problems, will stay at work until the end of pregnancy". Mrs Du Crow's evidence was that at that stage there was no question of Mrs Abebe's employment being terminated. Mrs Du Crow was aware from before this time that Mrs Abebe had been separated from her husband and that this was because her husband had a gambling problem. Mrs Abebe also had other personal problems including the fact that her mother was at one stage very ill.
Mr and Mrs Du Crow said that around 2 June 1995 Mr Du Crow spoke to Mrs Abebe because things were getting worse, not better. Instead of the work improving it was deteriorating. Mr Du Crow spoke to Mrs Abebe about the mistakes in the invoices, creditors and typing and asked her to take more care in general. Mrs Abebe appeared to be angry at being reprimanded and started "banging things around" in the office.
Mrs Du Crow said that on 16 June 1995 she spoke to Mrs Abebe and told her that she was going to have to continue to proof read her work because Mrs Abebe seemed to be unable to correct Mr Du Crow's grammar, as she had been asked to do from the time of the commencement of her employment. Mrs Du Crow stated to Mrs Abebe that she still expected Mrs Abebe to also spell-check the letters and to proof read them. Mrs Du Crow said that although she was prepared to check the correspondence she was not in a position to check the figure work in the books of account as well, and that Mrs Abebe would need to improve.
Mr Du Crow gave evidence that on 30 June 1995 he spoke to Mrs Abebe because she was taking far longer to do things than is ordinarily acceptable. Mr Du Crow mentioned that Alison Holland had been doing these things in two thirds of the time and Mrs Abebe was not even getting them completed. Mr Du Crow said that he had also told Mrs Abebe that it was imperative that the end of year book work was to be completed for the accountant by 7 July so that the accountant had a week to review the books before Mr and Mrs Du Crow went away on holiday on 15 July 1995. Mr Du Crow's evidence was that he told Mrs Abebe, "Tracey you have got to stop making these mistakes or you have got to stop yourself. We can't have this carry on any longer".
Mrs Du Crow also gave evidence that Mrs Abebe had been requested to have the books of account up to date for the accountant by 7 July 1995. On 7 July 1995 Mrs Du Crow asked Mrs Abebe whether she had finished the books and Mrs Abebe assured her that everything was under control.
Mrs Abebe's evidence is that she was not asked to have the books completed by 7 July 1995 but instead by the time Mr and Mrs Du Crow went on holiday which was the following week. Mrs Abebe's evidence was that up to 7 July 1995 she had done as much on the books as she had been able to. She was only told on 7 July 1995 that the books needed to be completed. Mr and Mrs Du Crow's evidence was that Mrs Abebe was advised right from the start of her employment that this formed part of her duties. Mrs Abebe said that she knew that she would have to do the end of financial year books but she also had the understanding that Alison Holland would be in to help her to do this job as it was the first time that Mrs Abebe had done this work. Mrs Abebe said that the purpose of Alison Holland coming back to work for Allforks and Equipment in the week starting 10 July 1995 was to help Mrs Abebe with the books and to go through the end of the financial year figures with her. This differed markedly from the account given by Mrs Du Crow and Alison Holland herself. Mrs Holland said that she was ready to go into work for a few days when Mr and Mrs Du Crow were away in the event that Mrs Abebe needed some help to run the office. On balance, I find that Mrs Abebe was advised well before 7 July 1995 that it was her responsibility to have the books of account completed by 7 July 1995.
Mrs Abebe was ill and away from work on 10 and 11 July 1995 with gastroenteritis. She returned to work only briefly on Wednesday, 12 July, 1995 before an appointment at the King Edward Memorial Hospital. She was experiencing some problems with the pregnancy and was told by the doctor at the hospital to go home and rest as she was putting her life and that of the baby in danger. Mrs Abebe went home and advised Mrs Du Crow of this problem. Her condition worsened on the Thursday and on Friday 14 July 1995 she was rushed to hospital where she was admitted with a threatened miscarriage. Mrs Abebe contacted her mother and asked her to ring Mr and Mrs Du Crow, which her mother did. Mrs Abebe's mother, Mrs Gotts, gave evidence that she spoke to Mrs Du Crow who told her that "Tracey was not to worry about the business and that God would take care of her and her baby". Mrs Gotts said that Mrs Du Crow had said that her job was all right and that it would be there when she got out of hospital. Mrs Gotts was asked by Mrs Du Crow if she could get Mr Abebe to return the company keys. Mr Abebe also gave evidence that he spoke to Mrs Du Crow who said "Don't worry, we will pray for her. Her job will be there". Mrs Du Crow's evidence was that when she spoke to Mrs Gotts and to Mr Abebe they were both understandably upset about the threatened miscarriage. Mrs Du Crow did her best to comfort them and told them that they would be praying for Tracey and that she should not worry about the job, that it was her health and the health of her child that was important.
Mrs Du Crow gave evidence that once she became aware that Mrs Abebe was unwell she went into the office and found that the books of account were far from finished. Mrs Abebe had assured her that she had just about completed everything but in fact the books had not even been done as at the end of June 1995. Before the end of year accounts could be done, the end of month accounts had to be completed and they had not been finished. There was a debtors and creditors list which was grossly inaccurate.
Alison Holland was called in to assist. Her evidence was that when she first arrived at the office her reaction was that it was in a disgusting state. Everything was very dirty and she had to clean the desk down before she started. The office was disorganised and she had to sort through a lot of paperwork to find where things were before she could start doing what was supposed to be done. It is acknowledged by Mr and Mrs Du Crow that Mrs Abebe had been told to get one of the men to do the vacuuming for her because of the problems with her pregnancy. However, she had been asked several times to keep the office clean and tidy and this, according to Mrs Du Crow, was not done. Mrs Abebe's evidence was that although she knew she had to do the cleaning, she put this at the bottom of her list of priorities. Mrs Abebe said that she was snowed under and couldn't finish everything that was expected of her.
Both counsel went through the books of account in detail with each of the witnesses. Although Mrs Abebe had explanations for some of the things that were not done or not completed, I am satisfied on the balance of probabilities that Mrs Abebe did mislead Mrs Du Crow on 7 July 1995 when she said that she had done all that she could do on the books of account. The books were far from finished. Although I am satisfied that Mrs Abebe intended to finish the books of account in the week beginning 10 July 1995, she had been asked to have the books finished by 7 July 1995 and this was not done.
Mrs Abebe returned to work in the week beginning 24 July 1995. Mrs Abebe's evidence is that on 28 July Mrs Du Crow said that she wanted to speak to her in Mr Du Crow's office. Mrs Du Crow, according to Mrs Abebe, said "I'm sorry that you fell pregnant and we know that you have been sick and having problems and we think that it is best that you leave. We have been finding errors in your work". Mrs Du Crow gave Mrs Abebe the choice of actually leaving at that point or leaving in a week's time. Mrs Du Crow discussed a reference with Mrs Abebe but as Mrs Abebe was so distraught she could not remember exactly what was said. The errors Mrs Du Crow mentioned were mainly in Mrs Abebe's book work. According to Mrs Abebe, Mrs Du Crow did not go into any great details about what had happened, and said to her "God makes us look within and that is what pregnancy is there for, to make us look within". It was then that Mrs Du Crow progressed to say that she had found errors in her work.
Mrs Du Crow's evidence on this point was that she was very conscious of the problems Mrs Abebe had recently experienced with her pregnancy and she was trying to be as careful as she could not to put any further stress on her. Mrs Du Crow asked Mrs Abebe to come into Mr Du Crow's office so that they could talk privately. Mrs Du Crow could see that even doing that seemed to upset Mrs Abebe before Mrs Du Crow had said anything.
Mrs Du Crow said to Mrs Abebe that she was sorry that they had to have this conversation and she brought to her attention the fact that the work that she had said she had almost completed in fact was far from completed, and asked her why. Mrs Abebe said that she really did not know and she began to reiterate her personal situation. Mrs Du Crow asked Mrs Abebe if she could offer her an explanation as to why the work that she had done was wrong. She mentioned the creditors journal and that the figures were grossly out. Mrs Du Crow said that the end of month accounts had not been done and certainly the end of the year accounts had not been almost completed as Mrs Abebe had said. Mrs Du Crow asked Mrs Abebe to explain this. It was very distressing for Mrs Du Crow as well as for Mrs Abebe because she was conscious that Mrs Abebe had nearly had two miscarriages. At the same time, however, while she was sympathetic to Mrs Abebe's situation, Mrs Du Crow felt that she had to do something to address the issues. Mrs Abebe just cried and said she was sorry. Mrs Du Crow said that she remembered saying during the conversation that the difficulties Mrs Abebe had had with the pregnancy meant that it may now be a good time to turn her attention inward and look to her own health and that of her child. Mrs Du Crow denied that she terminated Mrs Abebe's employment because of her pregnancy. Mrs Du Crow denied that she had made the decision that it was in Mrs Abebe's own best interests to take care of herself and her baby and that that is why she terminated her employment. Mrs Du Crow pointed to the fact that Alison Holland was with the respondent until two weeks before her child was born.
Mrs Du Crow said that each time she had had cause to speak to Mrs Abebe in the past about her work performance Mrs Abebe always put forward her personal circumstances as an excuse for the mistakes she was making. Mrs Du Crow said that during the termination interview she raised with Mrs Abebe the question of a reference. She suggested that she could put in the reference that Mrs Abebe had agreed to leave of her own volition and Mrs Abebe had agreed to this. Mrs Du Crow admitted that she had written a very complimentary reference for Mrs Abebe. She said she did this because she did not want to prejudice her chances of future employment and that she was aware that her personal circumstances had had an impact on her work performance. Mrs Du Crow said that she concentrated in the reference on Mrs Abebe's good points and to that extent the reference was correct.
THE CREDIBILITY OF THE WITNESSES
I have already indicated that I prefer the evidence of the witnesses for the respondent over that of Mrs Abebe. This is based partly on my impression of the witnesses and their demeanour, and also on the documentary evidence which was submitted at the hearing. There was nothing about the demeanour of Mrs Du Crow which caused me to have any concerns about her evidence. I was, however, concerned about several aspects of Mrs Abebe's evidence. Although many of the examples of the errors made on invoices were, as was pointed out on behalf of the applicant, concentrated towards the early months of Mrs Abebe's appointment, I do not accept Mrs Abebe's statement that she was not spoken to in relation to these matters. I consider that to be highly unlikely. Despite a challenge by counsel for the applicant, I accept the written record of the occasions on which Mrs Abebe was warned by her employers about her performance as correct. Further, although the examples of the invoices which were put forward as instances of Mrs Abebe's carelessness did include many during the months of April and May, there were further instances during June and July. As the company is a quality assured company, it is important that the documentation be of a high quality and I don't accept that Mrs Abebe was not made aware of her employer's dissatisfaction in relation to the mistakes.
On behalf of the applicant it was said that although one of the main complaints by the employer was that Mrs Abebe made frequent spelling mistakes, not one instance of such a mistake was put forward in this court. I accept the respondent's explanation that on each occasion when these mistakes were discovered, they would be rectified on the computer and it was not thought necessary to keep a copy of the faulty document.
Further, Mrs Abebe's evidence that Alison Holland was to be called in during July 1995 to primarily deal with end of month and end of year accounts is contrary to the weight of the evidence and appears to me to be unlikely.
Mr Abebe presented as a fairly emotional person and even allowing for cultural differences I consider that Mrs Du Crow's evidence of the conversations she had with Mr Abebe to be more reliable than that of Mr Abebe.
Further, the evidence of Mrs Gotts that Mrs Du Crow assured her that Mrs Abebe's job would be waiting for her when she returned must be seen in the light of the fact that Mrs Gotts was at the time in an extremely emotional state as it appeared that her daughter was about to lose her baby. I accept Mrs Du Crow's version of the conversation that she had with Mrs Gotts and that she said that Mrs Abebe was not to worry about her job as the prime concern was the health of Mrs Abebe and her baby.
DID THE TERMINATION OCCUR ON THE GROUNDS OF PREGNANCY?
Mrs Abebe relies primarily on her version of the termination interview during which Mrs Du Crow allegedly said to her that she was sorry that Mrs Abebe fell pregnant. I have already indicated that I prefer Mrs Du Crow's evidence in relation to that interview.
Further Mrs Abebe relies on conversations Mrs Du Crow had with a Mr Scaife who is employed by the Commonwealth Employment Service. Mrs Abebe was on the Job Start Program run by the Commonwealth Employment Service and on 21 June 1995 Mr Scaife had a telephone conversation with Mrs Du Crow about Mrs Abebe. Mr Scaife made a file note of that conversation shortly after it occurred which says as follows:
"Spoke to Dee Du Crow re final claim for Tracey Abebe. Dee said that Tracey is pregnant and 'this is affecting her work'. When I asked her how it was affecting her work Dee said that when women get pregnant they become careful and take care of themselves. Dee was assuming that Tracey would either be sacked or would resign and so did not think that subsidy would now be payable."
Mr Scaife could not recall a specific instance of how Mrs Du Crow said the pregnancy was actually affecting Mrs Abebe's work.
There was a further file note from Mr Scaife dated 16 August 1995, which occurred after the respondent had been served with the present application in this court. The file note reads in part:
"Dee Du Crow from Allforks rang me about her former Job Start employee Tracey Abibe (sic). Dee asked me to recall a telephone conversation we had in June this year about Tracey. During that Dee said that Tracey would not be with the company much longer as she was pregnant. I asked at the time if that was because she would be going on maternity leave. Dee advised that pregnant women get introverted when they get pregnant - take more care of themselves and so it affects their work".
Mr Scaife said that during his phone conversation on 16 August 1995 he did not refer back to his file note of 21 June 1995. In these circumstances I consider that the file note of 21 June 1995 is the most accurate.
Counsel for the applicant referred to the case of Narelle Jones -v- Armas Nominees Pty Ltd T/as Network Rent a Car, IRCA No. 151/94, unreported, in which Judicial Registrar Millane said of Section 170DF at page 29:
"One of the objects of the section is to prohibit the termination of employment on the basis of an employee's sex; that is to say it is a prohibition against sex discrimination in the termination of employment. That discrimination may take the form of 'sexual harassment' or behaviour an employee is subjected to because of the employee's sex. The respondent carries the burden of showing that the applicant's employment was not terminated by reason of or for reasons which included sex (section 170EDA(2))".
It was submitted that this is the appropriate test and burden if one of the reasons for termination is pregnancy. It was pointed out that Section 170DF(1)(f) refers to pregnancy as "including any one or more of the following reasons". Counsel again referred to the case of Narelle Jones in which Millane JR said at pages 29-30:
"It is alleged by the applicant that the respondent's reason or one of the reasons for terminating her employment was because of her reaction to the sexual harassment. If that was the case the prohibition contained in Section 170DF(1)(f) ... applies because the termination of the applicant's employment is causally related to her sex."
It was submitted that if this court finds that the dismissal was causally related to the pregnancy, that brings the conduct within the prohibitive ambit of S170DF.
It was further submitted that discrimination legislation, both state and federal, refers to unfair ascription of characteristics which are ascribed to people because of their condition. In this case, it was said that Mrs Du Crow discriminated against Mrs Abebe on the grounds of pregnancy because of her assertion that pregnant women become introverted.
I agree with their submissions up to that point. If an ascription of this nature is made against a pregnant woman solely for the reason that she is pregnant, that is certainly unfair and offends against the legislation. However, a distinction must be made between termination on the grounds of pregnancy or an unfair ascription to a person because of pregnancy, and a situation in which a woman is pregnant and, for one reason or another, the pregnancy significantly affects her work performance. Mrs Du Crow admitted that she thought that sometimes pregnant women do focus on themselves and their babies rather than on the things going on around them. She felt that this may have happened in Tracey Abebe's case. However, Mrs Du Crow maintained that she had no problem at all with Mrs Abebe being pregnant and that the reason for the termination was Mrs Abebe's poor work performance. This is consistent with her telephone conversation with Mr Scaife. Mrs Du Crow said to Mr Scaife that Mrs Abebe was pregnant and that it was affecting her work. It is not an unfair ascription of a characteristic if the pregnant woman's work is actually being affected.
Mrs Du Crow's evidence was that she was very sympathetic towards pregnant women, that she had had six children herself and that she had supported Alison Holland through her pregnancy. There had been no problems with Mrs Holland's work performance and the company was happy to employ her until she left to have her baby. Further, Mrs Du Crow said that termination was not considered an option until sometime after Mrs Abebe announced her pregnancy. This is consistent with Mrs Abebe's own evidence. There had been some discussion of Mrs Abebe returning to work after she had her baby. It was not until her work performance in relation to the books of account was discovered to be unsatisfactory that the decision to terminate was actually made.
For these reasons, I am satisfied on the balance of probabilities that the termination of Mrs Abebe's employment did not take place because of the pregnancy but occurred as Mrs Du Crow maintains because of Mrs Abebe's poor work performance.
WAS MRS ABEBE GIVEN THE OPPORTUNITY TO RESPOND TO THE ALLEGATIONS MADE AGAINST HER?
I have already said that I accept the written record of alleged warnings by Mr and Mrs Du Crow to Mrs Abebe as correct. I also accept Mrs Du Crow's version of the events of 28 July 1995 as correct. At the final interview with Mrs Du Crow, Mrs Abebe was given the opportunity to respond to the allegations against her work performance. This must be seen in the context of the conversation Mrs Du Crow had with Mrs Abebe on 7 July 1995 in which Mrs Du Crow was misled as to the extent to which the books of account had been completed. I am satisfied on the balance of probabilities that Mrs Abebe was given an opportunity to respond to the allegations made against her. Consequently, there has been no breach of Section 170DC of the Act.
WAS THE TERMINATION HARSH, UNJUST OR UNREASONABLE?
I have already stated that I accept Mr and Mrs Du Crow's evidence in relation to Mrs Abebe's poor work performance. For this reason, I am satisfied on the balance of probabilities that there was a valid reason for the termination within the meaning of Section 170DE(1) of the Act.
The applicant states that in all the circumstances the termination was harsh, unjust or unreasonable. This is because Mrs Abebe was away from work because of a serious illness relating to her pregnancy immediately before the termination. I have some concerns about this termination precisely because of that fact. I would hope that a reasonable employer would where necessary make some allowances for situations in which pregnant women suffer difficulties with their work because of complications arising out of their pregnancy. However, because of the fact that Mrs Abebe was warned about her work performance on many occasions prior to her becoming ill, and because she knew well before the time that she became ill that she was required to have the books of account up to date by 7 July 1995, I consider that on balance the termination was not harsh, unjust or unreasonable. Mr and Mrs Du Crow made many allowances for Mrs Abebe and her personal problems. The respondent's business is a small family concern and Mrs Abebe's role was a vital one within that business. Many allowances had been made but by 28 July 1995 Mrs and Mrs Du Crow could not reasonably be expected to keep Mrs Abebe in their employment any longer.
For these reasons the application will be dismissed.
I certify that this and the preceding 19 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon
Associate
Date:
Counsel for the applicant: Mr P J Vincent
Solicitors for the applicant: Warren Swain
Representative for the respondent: Ms C Brown
Chamber of Commerce and Industry of
Western Australia
Hearing date: 18 & 19 October 1995, and 8 December 1995
Judgment date: 31 January 1996
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