Wilkie v National Storage Operations Pty Ltd
[2013] FCCA 1056
•9 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILKIE v NATIONAL STORAGE OPERATIONS PTY LTD | [2013] FCCA 1056 |
| Catchwords: INDUSTRIAL LAW – Alleged adverse action – entitlement to personal/carers leave – family or carer’s responsibilities – written warning – transfer of location – dismissal. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 96, 97, 102, 340, 341(1), 342(1), 351, 360, 361(1), 386(1), 386(2), 545(2)(b) |
| Cases cited: Commonwealth Bank of Australia v Barker [2013] FCAFC 83 Commonwealth Bank of Australia v Finance Sector Union [2007] FCAFC 18 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Whittaker v Unisys Australia Pty Ltd [2010] VSC 9 M. Irving, The Contract of Employment, Lexis Nexis Butterworths, Australia, 2012 |
| Applicant: | MARINA JEAN WILKIE |
| Respondent: | NATIONAL STORAGE OPERATIONS PTY LTD |
| File Number: | PEG 72 of 2012 |
| Judgment of: | Judge Whelan |
| Hearing date: | 14 March 2013 |
| Date of Last Submission: | 14 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 9 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr Handran |
| Solicitors for the Respondent: | Dowd and Company Lawyers |
THE COURT DECLARES:
That the Respondent contravened s.340(1) and s.351 of the Fair Work Act 2009 (Cth) when it issued the Applicant with a warning letter on
29 December 2011.
That the Respondent contravened s.351 of the Fair Work
Act 2009 (Cth) when it demoted the Applicant and transferred her work location.That the Respondent contravened s.351 of the Fair Work
Act 2009 (Cth) when it dismissed the Applicant.
THE COURT ORDERS:
That the Respondent pay the Applicant the sum of $32,130.78.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 72 of 2012
| MARINA JEAN WILKIE |
Applicant
And
| NATIONAL STORAGE OPERATIONS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under Chapter 3, Part 3 of the Fair Work Act 2009 (“the Act”). The Applicant, MARINA JEAN WILKIE (“the Applicant”) alleges that the Respondent, NATIONAL STORAGE OPERATIONS PTY LTD (“the Respondent”) has taken adverse action against her because of her family or carer’s responsibilities. The Applicant alleges three incidents of adverse action being:
·Receiving a written warning letter after leaving work early to pick up her son;
·Being transferred from one location to another further from her home; and
·Being forced to resign from her employment.
The Respondent claims that:
·The letter of warning was not adverse action, because the Respondent did not discriminate between the Applicant and other employees;
·The transfer of locations was necessary due to the inherent requirements of the position and was implemented in accordance with the employment agreement and the Respondent’s policies; and
·The Applicant was not forced to resign because of the conduct of the Respondent.
Background
The Applicant commenced employment with the Respondent in December 2010. At the time she was interviewed for the position she was told that they were interviewing for positions at Rockingham and Cockburn. Her initial letter of appointment, dated 3 December 2010, describes the position as “Part-time Assistant Centre Manager at Perth”.[1] It was the Applicant’s evidence that, at that time, the National Administration Manager Ms MERLE WALSH (“Ms Walsh”), the signatory to the letter, told her that it was the practice for all contracts to be written in this way and it would not impact on the location at which she would be working. Ms Walsh was not called to give evidence.
[1] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-1.
The Group Leader for the Respondent, Mr ANDREW JOHN FRENCH (“Mr French”), in his oral evidence, stated that the interviews were for “Rockingham and Cockburn, it was going to be either one of those Centres.”[2] In his affidavit evidence he stated:
On or about 30 November 2010, Lee Barrett, a Group Leader in the employ of National Storage located at Perth and I interviewed [the Applicant] for the position of Assistant Centre Manager Part Time at Perth. At the time of our interview with [the Applicant], I informed her that:
(a)Although she would initially be located at the Cockburn centre, she was likely to be required to work at other centres depending on demand for staff at other centres and the requirements of the company; and
(b)National Storage regularly transferred employees to different centres based on individual circumstances and the requirements of the company.[3]
[2] Transcript of Proceedings, 14 March 2013, page 29 at lines 10-11.
[3] Affidavit of Andrew John French sworn 28 June 2012 at paragraph 7.
The Applicant conceded that the contract provided for her to work at “any other centre as directed by the Operations Manager from time to time,”[4] but believed that this applied to temporary relocation and not to a permanent transfer.
[4] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-2, page 6.
After accepting the original offer, but before commencing employment at any location, during the pre-placement training period, the Applicant was asked if she would work as a full-time Assistant working between the Rockingham and Cockburn Centres. She commenced this on
13 December 2010. Her appointment as a “Full-Time Assistant Centre Manager at Perth” was confirmed on 23 December 2010.[5] On
15 January 2011 she commenced working at Cockburn only, on a
full-time basis.
[5] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-3.
On 2 March 2011, the Applicant was appointed “Centre Manager (caretaker) at Perth”,[6] commencing from 8 March 2011. On
15 April 2011, she was appointed as “Full time Centre Manager in Perth”, effective from 15 April 2011. This also involved the payment of a “Manager allowance” of $5,000.00.[7]
[6] Affidavit of Marina Jean Wilkie sworn 16 July 2012 at Annexure at Annexure A4.
[7] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-4.
The Applicant remained in the position of Centre Manager at the Cockburn Centre until January 2012.
The Respondent states that between 23 March 2011 and
20 January 2012, the Applicant had a total of 309 hours in sick leave, unpaid or annual leave.
Under the terms of the Employment Agreement, the Applicant was entitled to 20 days annual leave for each completed year of service and pro-rata for any part of a year. She was also entitled to ten days personal leave (sick leave/carer’s leave) and unpaid carer’s leave “in accordance with the employee’s statutory entitlements”.[8] Section 102 of the Act, provides for two days of unpaid carer’s leave in addition to the ten days provided by s.96 of the Act.
[8] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-2, page 11.
On 20 April 2011, annual leave was approved for the Applicant from 28 December 2011 to 6 January 2012.
On 1 June 2011, the Applicant consulted her general practitioner,
DR DARRYL LACEY (“Dr Lacey”) who advised that she take one day off per month to reduce “the stress of working full time without appropriate breaks.”[9] On 1 June 2011, Dr Lacey provided her with a medical certificate where he recommended that her working hours be reduced by one full day in each month, for the next six months. On this basis she was granted one day’s sick leave each month.
[9] Affidavit of Marina Jean Wilkie sworn 16 July 2012 at Annexure A-12.
On 17 August 2011, the Applicant suffered a miscarriage and had the following two days off work. She returned to work on 22 August 2011, had half a day off on 23 August 2011 and was hospitalised on
24 August 2011. She spent 25 and 26 August 2011 recovering from an operation. The Applicant advised Mr French about her need to be absent from work, but did not advise him of the reason for her hospitalisation.
On 7 December 2011, the Applicant notified Mr French that she would need to leave work at 2.30pm the following day in order to collect her son from school. She told him that she had made arrangements for him to be picked up by a friend, but unfortunately the friend could no longer do it and she had been unable to make alternative arrangements.
He responded:
The office cannot be closed. As has been mentioned previously the office MUST be open from 8am-5pm. Your primary function as manager is to ensure that the office is open during office hours.
You will need to organise an alternative arrangement e.g. family, friend, taxi. With staffing stretched as it is and especially at such short notice (even if I had received this email yesterday) it is impossible for this to be covered.[10]
[10] Affidavit of Andrew John French sworn 28 June 2012 at Annexure AJF-14.
On 19 December 2011, JAMES GERARD KIERNAN (“Mr Kiernan”), National Operations Manager for the Respondent, wrote to the Applicant as follows:
As discussed today on the phone, you have abandoned your responsibilities as Centre Manager and closed the centre at 2.30pm without prior approval or authorization from your Group Leader or myself on the 8 December, 2011. As a result, you will be receiving a written warning for your actions. I recommend that you refer back to your employment agreement and job description if you have any questions about what your obligations are in keeping the centre open for business.[11]
[11] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-13.
On 20 December 2011, the Applicant notified Mr French that she would require sick leave from 21 to 23 December 2011 and provided a medical certificate.
On 22 December 2011, Mr Kiernan wrote to the Applicant as follows:
Firstly let me pass on my best wishes for a speedy recovery from your current illness and I sincerely hope that it does not adversely impact on your festive season plans with your family.
As you will be away until early January I thought it best to write to you now so that you know where things are heading to in 2012.
The Directors have reviewed the opening hours of a number of centres which currently close on a Saturday and have decided that one of the centres that they will be re-opening will be the Cockburn centre. As this means that the staff at this centre will need to work alternate Saturdays this has necessitated a review of the staffing requirements for the Cockburn centre. We need to ensure that all our storage centres are operational and fully functioning at all times and given your current personal circumstances we feel that it is in the best interests of yourself and the Company that we transfer you to a centre that has higher permanent staffing levels.
Accordingly, effective 4th January, 2012 you will be transferred to the Belmont centre which is currently managed by your Group Leader Andrew French. Your existing salary will remain in place and all other conditions remain as per your Employment Agreement dated 8 March 2011.
Once again I wish you a speedy recovery and healthy and safe Festive Season. I look forward to catching up with you in my next visit to Perth in 2012.[12]
[12] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-14.
On 29 December 2011, Mr Kiernan sent the Applicant the following written warning:
This letter is given to you in accordance with your Employment Agreement. National Storage is issuing you with a first and final warning due to a breach of contract clause:
(a)18.2 if the Employee is guilty of misconduct, gross dereliction or neglect of duty, or non-compliance with lawful directions;
On the 8 December 2011, you closed the Cockburn centre at 2.30pm without approval from either your Group Leader or me. You have failed to follow a basic requirement as described in your job description and neglected your duty as Centre Manager.
Please review your job description and employment agreement if you [are] not clear on what your expectations are as an employee of National Storage.
If you are unsure about any of the above please discuss this with your Group Leader or myself as a matter of urgency.
Should we find your centre not trading during expected hours without prior approval by your Group Leader, myself or the Directors then your employment will be terminated immediately.[13]
[13] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-15.
On 29 December 2011, the Applicant wrote to Mr Kiernan asking him to explain what he meant by her “Current Personal Circumstances”[14] in his letter of 22 December 2011.
[14] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-16 at p.168.
On 4 January 2012, Mr Kiernan responded:
In response to your request for an explanation of “your current personal circumstances”, I advise as follows:
1.You have needed to take a number of days off due to medical and personal reasons that we were unaware of. As these days were regular and are potentially on-going, it was important from a business continuity perspective, that we do what is best for the centre. From a resource planning point of view, our need to open the Cockburn centre should not negatively impact other centres through the need to rejig staffing at short notice. This situation is exacerbated by the number of days that the Cockburn operates with one staff member and we do not foresee that changing in the short-term.
2.As we intend opening Cockburn on Saturdays, it will be important that we can rely on staff being available to open the centre on time and be available for the hours of business. Our staffing levels at Cockburn will not be increased other than to accommodate opening on Saturdays.
In order for us to ensure that we are always operational and fully functioning, we need to make sure that we have taken appropriate measures for the best interest of our employees and business. We have decided that, in the best interest of all concerned, to move you to a centre where we have sufficient permanent staffing levels to accommodate when your need to take sick days for personal and/or medical reasons may arise. Due to the current staffing mix at Belmont, it will not be significantly impacted and will still be able to remain operational and fully functioning if you’re required to attend to any medical or personal requirements.[15]
[15] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-16 at page 167.
On 5 January 2012, the Applicant wrote to Mr Kiernan:
As Andrew is Centre Manager of Belmont would this transfer now mean that I am going to be his Assistant Manager?
Being relocated to Belmont, I feel is not in my best interest as this means I would have to travel at least an hour an [sic] a half to get to work and then another hour and a half to get back home each day (providing no traffic delays).
The times I have had to take off from work due to medical reasons or looking after my son because he has been sick, I have always given Andrew notice for. Andrew has also been aware of the circumstances and has always been able to get another staff member to attend Cockburn apart from the most recent incident.
Working at Cockburn on an Alternate Saturday roster would not be an issue for me as my partner does not work weekends and would be able to stay home with my son.
I feel working at Belmont and having to travel this distance each day would have a negative impact on my health and my family. I hope that you can reconsider this Transfer and if I am unable to return to Cockburn if I could go to another Centre closer to home for eg. Rockingham or Canningvale.
If you could please let me know as soon as possible your feels [sic] regarding this, I would really appreciate it.[16]
[16] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-16 at page 166.
On 9 January 2012, Mr Kiernan replied to this correspondence:
Your transfer to Belmont would mean a change in position from Centre Manager to Assistant Manager although you will still retain your current Manager’s salary.
As previously advised, we have made this decision due to the number of days you have needed to take for medical and personal reasons. We have also explained the impact that this has on other centres and the importance of Cockburn remaining fully functional and operational at all times. With your absence this week due to medical reasons, we have not had the significant operational impacts at Belmont that we would have experienced at Cockburn if you were still working there. This has also allowed you to be able to take the necessary time off to ensure that you are fully recovered before returning.
As you’re aware, Andrew travels this distance each and every day and has continued to do this for the last 19 months.
Unfortunately we have already made changes to rosters and staffing in Perth to accommodate your transfer to Belmont. If we had a position closer to Cockburn available with more consistent staffing then we would consider transferring you there however this is currently not the case.[17]
[17] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-16 at page 165.
On 10 January 2012, the Applicant wrote back:
My reason for having time of [sic] this week is due to the upset and stress regarding the recent notification of your decision to transfer me to Belmont.
I am aware that Andrew does travel from Rockingham to Belmont though this is a shorter distance than what I would have to travel as I do not live in Rockingham.
The days that I have had off recently have been for medical reasons with a medical certificate provided. The only other time I have taken off recently was on the 8th of December 2011 to pick up my son from school. I had notified Andrew the day before and in the meantime had exhausted all other possibilities to prevent me from having to take this time off but unfortunately had no other choice. I did not feel that it was appropriate organising a Taxi to pick up my son as Andrew has suggested on that day.
My son starts high school a short distance from home this year, so I do not see there being an issue with this again. However if in case of an emergency I had to pick my son up from school this would be a problem if I was at Belmont. This is why when I originally applied for a position with National Storage I applied only at the Centres closer to my home.
I am currently 8 weeks pregnant and feel that it would pose a risk to my pregnancy with having to cope with the stress of travelling the long distance to Belmont each day.
After careful consideration I feel it would be better for my health and my family that I reduce my working hours to Part-time to a Centre closer to my home (Rockingham, Cockburn or Canningvale), enabling me to attend Doctors/Hospital appointments outside of working hours with no impact on other staff or centres.
Throughout my time with National Storage I feel that I have shown strong work ethic and conducted my responsibilities as an Assistant and Centre Manager to a very high standard. Despite having taken some time off due to medical reasons, I believe I have worked extremely hard in my position as Centre Manager at Cockburn and gone beyond my duties required.
I feel my level of performance has shown in the past years Management History including passing Audit in 2011 (which not many centres achieved), minimising the amount of arrears clients, increasing sales and increasing the number of occupancy percentage amongst other positive things I have achieved for the Cockburn Centre and National Storage.
I hope that all this can be taken into consideration when making your decision with regards to my request.
Your prompt response to this letter would be greatly appreciated.[18]
[18] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-16 at pages 164-165.
On 12 January 2012, Mr Kiernan wrote to the Applicant:
As Peter Greer is still away, you will have to remain at Belmont until I have had a chance to discuss with him next week.[19]
[19] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-16, page 164.
The Applicant responded:
As I have expressed the stress that this Notification of Transfer has caused me, I do not wish to prolong the situation, causing me more stress at this time. I am asking if you can please make a decision on this and notify me by no later that this Friday 13th of January 2011 [sic].[20]
[20] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-16, page 164.
Mr Kiernan replied:
A part-time position will not provide you or us with the requisite level of flexibility moving forward.
Your options would be to remain full time in one of the following positions;
· Belmont
· Subiaco
· Guildford
· Osborne Park/Joondalup floater
Or if you would prefer to reduce your hours and go from full time to casual then I will be able to accommodate you in a location closer than Belmont.[21]
[21] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-16, page 163.
On 20 January 2012, the Applicant wrote to Mr Kiernan:
I feel that your recent decision to Transfer me to Belmont is unjustified and unfair.
For this reason I feel that I have been forced into making the decision to resign without further notice.[22]
[22] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-17, page 171.
The evidence
Evidence was given by the Applicant and by Mr French and
Mr Kiernan for the Respondent.
In her oral evidence, the Applicant agreed that she had signed an induction manual as part of her training. She stated that the document she had received was not the document before the Court – a different version had been given to her to read.
The Applicant disagreed with the proposition that Rockingham was a one-person Centre as it had a part-time Assistant. Canningvale was the same. The Applicant denied wanting to work at a one-person Centre because it gave her more freedom to start and finish early. Apart from
8 December 2011, she stated that she had left early on one other occasion, at 4.30pm, but that this had been discussed with Mr French. She was aware that Rockingham and Canningvale were staffed under special arrangements to accommodate the fly-in, fly-out rosters of the employee’s partners. She denied that it was most unlikely that she could, therefore, be transferred to either of these locations.
The Applicant stated that depending on the traffic it took her approximately one hour to get from her home to the Cockburn Centre. She was of the view that it would take more than 45 minutes to get to Canningvale in peak hour traffic and longer than 50 minutes to get to Subiaco. She stated that it took her almost two hours to get to the city for the hearing. She assumed it would take between an hour and an hour and a half to get to those locations.
It was put to the Applicant that the difference between travelling to Canningvale and Osborne Park was relatively minor. She agreed that the ‘Google’ map suggested that, but during peak hour it was hard to tell. She agreed that the difference between travelling to Canningvale and travelling to Belmont, from her place, was about 12 or 13 minutes.
The Applicant stated that her opposition to travelling to Belmont was based on the travel time and distance whilst being pregnant and the fact that she was being demoted. The Applicant stated that she did not want to resign.
The Applicant stated that she did not see why she could not have continued to manage the Centre at Cockburn while she was pregnant. It was primarily one employee at Cockburn Centre with a part-time assistant. Each time she took sick leave, she always gave notice, at least 24 hours notice, which was in excess of that required by the contract. The Applicant claimed that her sick leave had no adverse effect on the operation of the Cockburn Centre.
Mr French in his oral evidence stated that he could not recall any occasion when the Applicant did not notify him of an absence. He agreed that the employer had medical certificates for the absences between 12 August and 26 August 2011. He agreed that apart from one or two times when the Centre was closed early because of the Applicant’s absence there was someone there to staff the Centre.
Mr French stated that there were some tasks that required two people at the Centre to do. When the Applicant had time off this meant those tasks could not be done. There was also a flow-on effect when he was required to bring staff from another Centre to cover at Cockburn. He agreed that at a Centre which was primarily one employee, staff were required at times to do things by themselves. There were always some times, however, when two people were there. Cockburn was staffed for one full-time person and one person for two and a half days a week.
Mr Kiernan stated that the reasons for the transfer of the Applicant were that change to opening hours and her personal situation. He agreed that the Applicant had told him that she was able to work on Saturdays. He agreed with Mr French that there some tasks which required two people to be present at the Centre. Having to pull someone from another Centre to work at Cockburn obviously impacted on that Centre. On a Saturday there is only one person rostered on so if the Applicant was unavailable on that day they would have to close the Centre unless they could call someone in.
Mr Keirnan said that he rejected the Applicant’s request to stay at Cockburn or go to Canningvale or Rockingham because they had only one full-time person based at that Centre with an additional person on some days. The offer was made for Belmont, Subiaco, Guilford or Osborne Park, because those Centres had two or more staff. It the Applicant needed to go to the doctors or pick up her son, they could accommodate that.
Mr Kiernan stated that his statement, that it would have been necessary to transfer the Applicant once he was informed she was pregnant, was for health and safety reasons; “[t]here’s a lot of lifting and cleaning and walking around the centres.”[23] He did not have any medical support for this. He referred to lifting stock. He stated that he had no medical advice on pregnant women lifting weights of 10 to 15 kilograms.[24]
[23] Transcript of Proceedings, 14 March 2013, page 40 at lines 27-28.
[24] Transcript of Proceedings, 14 March 2013, page 40 at line 32 and page 41 at line 8.
The statutory framework
Chapter 3 of the Act deals with the Rights and Responsibilities of Employees, Employers and Organisations. Relevant to these proceedings are s.340 of the Act, which protects the workplace rights of employees and s.351 of the Act which protects employees from adverse action based on particular attributes, including ‘family or carer’s responsibilities.’
Section 340 of the Act reads as follows:
Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(ii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).[25]
[25] Section 340 of the Fair Work Act 2009 (Cth).
Workplace rights are defined in s.341(1) of the Act:
Meaning of workplace right
(1)A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Adverse action is defined in s.342(1) of the Act. For the purpose of these proceedings, an employer takes adverse action against an employee of the employer if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c)alters the position of the employee to the employee's prejudice; or
(d)discriminates between the employee and other employees of the employer.
Section 12 of the Act defines the term ‘dismissed’ by reference to s.386 of the Act. Section 386(1) of the Act provides:
(1)A person has been dismissed if:
(a)the person's employment with his or her employer has been terminated on the employer's initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Section 386(2) of the Act provides when a person has not been dismissed. Relevant to these proceedings is s.386(2)(c):
(c) the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
By virtue of s.360 of the Act, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361(1) of the Act provides:
(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The legislation does not define discrimination for the purposes of s.342(1) or s.351 of the Act. It would appear however that discrimination may be ‘direct’ or ‘indirect’[26] and is not merely to be determined by the definitions contained in ‘anti-discrimination laws.’[27]
[26] Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402.
[27] Hodkinson v The Commonwealth [2011] FMCA 171.
The term ‘injury in employment’ covers injury of any compensable kind.[28]
To alter the position of an employee to their prejudice’ covers not only legal injury, but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.[29]
[28] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1988) 195 CLR 1.
[29] Ibid at [84].
Actions which may fall within the ambit of altering an employee’s position to their prejudice include:
·Issuing them with a disciplinary warning.[30]
·Discriminatory allocation of less congenial shifts or rosters.[31]
Did the Respondent take adverse action against the employee when the Applicant was issued with a warning letter on 29 December 2011?
[30] Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd [1999] FCA 1531; Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231.
[31] Independent Education Union of Australia v Canonical Administrators (1998) 84 IR 123.
The chain of events which led to the Applicant being issued with a warning letter on 29 December 2011, are not in dispute. On
7 December 2011, the Applicant notified the Respondent via
Mr French, her Team Leader, that she would need to leave at 2.30pm the following day in order to collect her son from school. Previous arrangements she had made to have someone else collect him had fallen through. For reasons, not the fault of the Applicant or Mr French he did not receive her email until the following day. Mr French informed her that no-one else was available, the office could not be closed and she would need to organise an alternative arrangement for her son. In spite of this email, the Applicant left the office at 2.30pm.
On 19 December 2011, the Applicant was notified by Mr Kiernan that as she had abandoned her responsibilities as Centre Manager and closed the Centre on 8 December 2011, without prior approval or authorisation she would be receiving a written warning for her actions.
On 29 December 2011, she was given a first and final warning due to “a breach of contract clause” referring to a employee being “guilty of misconduct, gross dereliction or neglect of duty or non-compliance with lawful directions”.[32]
[32] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-15.
The provisions of ss.96 and 97 of the Act provide as follows:
s.96 Entitlement to paid personal/carer's leave
Amount of leave
(1)For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.
Accrual of leave
(2)An employee's entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
s.97 Taking paid personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave is taken:
(a)because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b)to provide care or support to a member of the employee’s immediate family, or a member of the employee's household, who requires care or support because of:
(i)a personal illness, or personal injury, affecting the member; or
(ii)an unexpected emergency affecting the member.
Note: The notice and evidence requirements of section 107 must be complied with. [33]
[33] Section 97 of the Fair Work Act 2009 (Cth).
In addition s.102 of the Act provides:
Entitlement to unpaid carer’s leave
An employee is entitled to 2 days of unpaid carer’s leave for each occasion (a permissible occasion ) when a member of the employee's immediate family, or a member of the employee's household, requires care or support because of:
(a)a personal illness, or personal injury, affecting the member; or
(b)an unexpected emergency affecting the member.
Section 351 of the Act provides:
Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2)However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; or
(c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3)Each of the following is an anti‑discrimination law :
(aa)the Age Discrimination Act 2004 ;
(ab)the Disability Discrimination Act 1992 ;
(ac)the Racial Discrimination Act 1975 ;
(ad)the Sex Discrimination Act 1984 ;
(a)the Anti‑Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 1995 of Victoria;
(c) the Anti‑ Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f)the Anti‑Discrimination Act 1998 of Tasmania;
(g)the Discrimination Act 1991 of the Australian Capital Territory;
(h)the Anti‑ Discrimination Act of the Northern Territory.[34]
[34] Section 351, Fair Work Act 2009 (Cth).
The Applicant was the mother of a primary school child. It is apparent that she usually discharged her obligation to collect her son from school by having a friend collect him on her behalf. On the occasion in question, this arrangement broke down and the Applicant was unable to make alternative arrangements. The obligation to ensure that her son was collected from school fell within the ambit of ‘family or carers’ responsibilities’.
I am satisfied that the Applicant had a workplace right under the provisions of the Act to take personal/carer’s leave or unpaid carer’s leave due to an ‘unexpected emergency’ being the need to collect a primary school child from school. Moreover, the employer was aware of why the Applicant sought to leave work at 2.30pm on the day in question.
Further, I am satisfied that the issue of the warning amounted to adverse action by the employer against the employee in that it made her more vulnerable to being dismissed from her employment.[35]
[35] See Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231.
The reason given by the employer for the warning was that, on
8 December 2011, “you have abandoned your responsibilities as Centre Manager and closed the centre at 2.30pm without prior approval or authorization from your Group Leader or myself” (James Kiernan).[36]
[36] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-13.
As the employee left the workplace because of an unexpected emergency related to her responsibilities as a parent and the employer was aware of why the Applicant had left the workplace, a reason for the warning must be that she closed the Centre in order to pick up her son from school. Her family responsibilities were, therefore, a reason for the action.
Did the Respondent take adverse action against the Applicant when it decided to transfer her from the Cockburn to the Belmont Centre?
Three days after notifying the Applicant that she would be issued with a warning with respect to the early closure of the Cockburn Centre on
8 December 2011, she was notified that there had been a review of opening hours and a decision made to open the Cockburn Centre on Saturdays. “[G]iven your current personal circumstances we feel that it is in the best interests of yourself and the Company that we transfer you to a centre that has higher permanent staffing levels.”[37]
[37] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-14.
When asked to explain what he meant by her “current personal circumstances”, Mr Kiernan stated:
1.You have needed to take a number of days off due to medical and personal reasons that we were unaware of. As these days were regular and are potentially on-going, it was important from a business continuity perspective, that we do what is best for the centre. From a resource planning point of view, our need to open the Cockburn centre should not negatively impact other centres through the need to rejig staffing at short notice. This situation is exacerbated by the number of days that the Cockburn operates with one staff member and we do not foresee that changing in the short-term.
2.As we intend opening Cockburn on Saturdays, it will be important that we can rely on staff being available to open the centre on time and be available for the hours of business. Our staffing levels at Cockburn will not be increased other than to accommodate opening on Saturdays.[38]
[38] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-16, page 167.
In his oral evidence Mr Kiernan stated that the decision was not solely because of the change of hours but also “the personal situation”.[39]
[39] Transcript of Proceedings, 14 March 2013, page 37 at lines 3-4.
The Applicant responded that working on alternate Saturdays would not be an issue as her partner did not work weekends and would be able to stay home with her son.
It would appear from the email of 4 January 2012, that Mr Kiernan was referring to the one day per month the Applicant had been taking off since June under the medical certificate given by Dr Lacey, although he may have also been referring to her absence in August and the early closure on 8 December 2011, when he used the term “current personal circumstances.” At this time Mr Kiernan was not aware of the Applicant’s pregnancy.
It is not an answer to the Applicant’s claim that the transfer from Cockburn to Belmont was provided for by the terms of the employment agreement. On its face, the Agreement allows for the Operations Manager to direct an employee to work at the National Storage Centre set out in Schedule 1, or any other Centre, from time to time. Schedule 1 describes the Centre as ‘Perth’. There is considerable ambiguity in the way the term ‘Centre’ is used by the Respondent. Consistently, the term ‘Centre’ was used in these proceedings to mean a workplace in a particular suburban location, for example Cockburn Centre, Belmont Centre etcetera. Job Descriptions for a ‘Centre Manager’ also clearly relate to a particular workplace, not to ‘Perth.’ It is not clear whether Schedule 1 is meant to refer collectively to any location within the Perth metropolitan area and if so that an employee could be transferred to a location outside of ‘Perth’.
Nor is it clear what is meant by ‘from time to time.’ The Applicant understood it to mean that a direction to work at another location was a temporary transfer. The Induction Manual states, “the Company reserves the right, and this is specifically stated in the service agreement, to move an employee to other Centre’s during the period of employment.”[40] This suggests permanent transfer. The Induction Manual is, however, not expressly stated to be incorporated into the employment contract.
[40] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-6, page 51.
In considering the construction of an employment contract the Court will apply the same principles, which apply to the construction of any commercial contract.[41]
[41] Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889.
In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd,[42] the High Court said:
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.[43]
[42] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165.
[43] Ibid at 179.
I am satisfied that the terms of the contract enabled the employer to transfer the Applicant between Centres, at least within the Perth metropolitan area, on a temporary or permanent basis. Indeed, the Applicant had commenced her employment working at two Centres, Cockburn and Rockingham, before being permanently located at Cockburn only.
The right to effect a transfer, however, is not sufficient in itself to dispose of the issue.
In United Bank v Akhtar,[44] an United Kingdom case, the employee’s contract contained a specific provision that:
The bank may from time to time require an employee to be transferred temporarily or permanently to any place of business which the bank may have in the United Kingdom, for which a relocation or other allowance may be payable at the discretion of the bank.[45]
[44] United Bank v Akhtar[1989] IRLR 507.
[45] Ibid at 509.
The applicant in that matter was directed, with six days notice, to move to another city despite the personal difficulties this created for him. It was held that this was a breach of his contract because of the implied term that the employer would apply the express provisions reasonably.
A similar issue was discussed by Rothman J in Downe v Sydney West Area Health Service,[46] where the employee argued that a power to direct the employee where to work could not be exercised to undermine or destroy the basis of her contract of employment. Rothman J recognised the existence of an implied term of mutual trust and confidence in the employment contract, although in that case there was found to be no breach of the implied term. The express term of the contract does not override the requirement that in exercising the right to transfer, the employer does not discriminate against an employee or where a reason for the transfer amounts to adverse action in breach of a workplace right. The implication of such a term has most recently been upheld by the Full Bench of the New South Wales Supreme Court in Shaw v State of New South Wales.[47]
[46] Downer v Sydney West Area Health Service (No 2) [2008] NSWSC 159
[47] Shaw v State of New South Wales [2012] NSWCA 102. See also Commonwealth Bank of Australia v Barker [2013] FCAFC 83 for a recent Full Federal Court decision.
The Respondent also argues that the transfer of the Applicant was necessary due to the ‘inherent requirements of the particular position concerned.’ The basis of this argument appears to be that because the Centre at Cockburn was operated with only one full-time and one
part-time employee it was an ‘inherent requirement’ that the full-time employee be there for all rostered hours.
While it is clearly an inherent requirement of a position that an employee attend for work, it could hardly be an inherent requirement of a position that the person not access the annual leave, personal leave and carer’s leave to which they are entitled by statute and contract.
The Respondent admits that the decision to transfer the Applicant was motivated, at least in part, by ‘her personal circumstances,’ which appear from the evidence to be her use of personal leave due to medical reasons and/or family responsibilities. While the reasons are couched in terms of increased ‘flexibility’ for both the employer and the employee, the explanation given by the employer is clearly related to the Applicant’s use of this leave. It was therefore a reason for the transfer
The Applicant gave as her reasons for not wishing to transfer to Belmont, the extra travel/time in getting to and from work and the fact that it was a demotion.
The Respondent challenged that the time involved in driving to and from work was anything more than marginally greater for the Applicant. Mr Kiernan’s evidence was that the extra time from Cockburn was between 30 and 50 minutes, depending on the location to which she went. On the material before the Court this would appear to be the case, although the actual time taken was not tested in peak hour conditions. Arguably, travel time was not of such significance as to be a disadvantage to her.
Was the transfer to Belmont a demotion?
It is necessary, in my view, to distinguish between a demotion per se and a demotion within the meaning of s.386(2) of the Act.
A ‘demotion’ might not amount to a dismissal for the purposes of the Act, but could still be an action which alters the employee’s position to their prejudice for the purpose of s.342(1) of the Act.
The position held by the Applicant prior to 4 January 2012 was as ‘Full-time Centre Manager.’ It is clear that the transfer to Belmont would mean a change in position from Centre Manager to Assistant Manager although she would still retain her current Manager’s salary.[48] The Respondent submitted that she would continue to perform the same or substantially the same role. She could not be a ‘Centre Manager’ at Belmont because someone else already occupied that role.
[48] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-16, page 165.
The job descriptions for a ‘Centre Manager’ and ‘Assistant Centre Manager’ are contained in the Affidavit of Mr Kiernan.[49] Many of the tasks are the same although in a number of cases they are prefaced by “Assist the Centre Manager in…” in the case of the Assistant Manager’s job description. The responsibilities of the Centre Manager however are greater than those of the Assistant and include ‘supervision of staff’ and ‘team management,’ which are not included in the Assistant Manager’s role. The fact that the Centre Manager’s role attracts a higher rate of pay is indicative of the fact that it also attracts greater responsibility.
[49] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexures JGK-23 and JGK-24.
Clause 4.3 of the Employment Agreement provides that “The Employer may require the Employee to undertake any other duties reasonably connected with the Employee’s role, or may reduce the Employee’s duties, or remove the Employee from duties, as it sees fit.”[50]
[50] Affidavit of James Gerard Kiernan sworn 28 June 2012 at Annexure JGK-2.
The clause does not expressly state that the Employer may demote an employee, ‘as it sees fit’ and in any event in my view such an express clause would be subject to the employer not acting in such a way as to destroy or damage the relationship of trust and confidence between them.
It appears to me that at the very least the Respondent by transferring the Applicant to Belmont as an Assistant Manager was indicating that it was not prepared to continue with the employment contract on the previous terms, i.e. that she be employed as a Centre Manager, albeit that her salary was maintained.
Irrespective of whether the demotion was a dismissal for the purposes of the Act was it nonetheless an action by the employer which altered her position to her prejudice?
The concept of injury in employment and altering the position of the employee to the employee’s prejudice were discussed Cameron FM (as he was then) in Australian Licensed Aircraft Engineers Association v QANTAS Airways Ltd.[51] His Honour referred to the decision of the High Court in Patrick Stevedores[52] and of the Full Court of the Federal Court in Commonwealth Bank of Australia v Finance Sector Union.[53] Spender J in that case referred to the judgment of Smithers J in Childs v Metropolitan Transport Trust[54] who dealt with the distinction between an ‘injury’ and an ‘alteration to an employee’s position’ as follows:
[51] Australian Licensed Aircraft Engineers Association v QANTAS Airways Ltd [2011] FMCA 58.
[52] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1988) 195 CLR 1.
[53] Commonwealth Bank of Australia v Finance Sector Union [2007] FCAFC 18.
[54] Childs v Metropolitan Transport Trust (1981) IAS Current Review 946.
So far as the second charge is concerned, I am unable to see that in the narrow sense in which the word ‘injure’ seems to be used, the informant was injured in his employment on 22 December. It did not occasion him any immediate loss of income. It did not mean that he did not do the same work during the period that his employment in the senior revenue pay clerk’s office entailed him in performing that work. It is said that it reduced his status so far as the rest of the staff were concerned and did so from that very moment. No doubt that is quite probable and probably did occur but it seems to me that that kind of thing is more aptly considered to be an alteration in his position than an injury. I cannot help thinking that ‘injury’ refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.[55]
[55] Childs v Metropolitan Transport Trust (1981) IAS Current Review 946.
(emphasis added)
I am satisfied that the alteration in the Applicant’s status from Centre Manager to Assistant Centre Manager was an alteration in her position to her prejudice, in that it reduced her status and level of responsibility.
Was the Applicant dismissed from her employment?
This requires consideration of two issues. First, was she demoted in circumstances which amounted to a dismissal? Second, was she forced to resign because of conduct, or a course of conduct, engaged in by her employer?
Section 386(2)(c) of the Act provides that in order for a demotion to amount to a dismissal, it must involve a significant reduction in remuneration or duties. In this case, there was no reduction in remuneration.
What will amount to a significant reduction in duties?
Ross J in Whittaker v Unisys Australia Pty Ltd[56] considered this by reference to the decisions in Quinn v Jack Chia (Australia) Ltd;[57] Brackenridge v Toyota Motor Corporation Australia Ltd,[58] and Western v Union des Assurances de Paris.[59] While the language used in these cases varies it is clear that the reduction in duties must be serious and each case will turn on its own facts.
[56] Whittaker v Unisys Australia Pty Ltd [2010] VSC 9.
[57] Quinn v Jack Chia (Australia) Ltd (1992) 1 VR 567.
[58] Brackenridge v Toyota Motor Corporation Australia Ltd [1996] IRCA 628.
[59] Western v Union des Assurances de Paris (1996) 88 IR 259.
It is clear that the company regarded a move from ‘Assistant Centre Manager’ to ‘Centre Manager’ to be a promotion. All of the offers made to her involved a position as an ‘Assistant Centre Manager’ albeit with salary maintenance. I am satisfied on the material before the Court that the change in duties – particularly with respect to the level of responsibility involved – was such that the change was ‘of such a degree’ that the employer effectively was terminating the old contract and seeking to replace it with a new one.
The Applicant, in my view, was entitled on 22 December 2011, when she was notified of the transfer to Belmont to consider the employment to have been brought to an end by the employer. In the event the Applicant chose, at that stage not to consider the employment to have terminated, but to attempt to negotiate with the employer a more acceptable outcome. It is clear, however, that she did not accept what amounted to a repudiation of the contract by the employer.
By submitting her resignation on 20 January 2012, the Applicant accepted that the employer’s action in demoting her evinced an intention on the part of the employer to no longer be bound by the contract.
Between 22 December 2011 and 20 January 2012, the Applicant notified the Respondent that she was pregnant. The Respondent, in the proceedings, gave evidence that in light of her pregnancy it would have been necessary to transfer her to a larger Centre “for her own well-being, and to ensure National Storage complied with its occupational health and safety obligations and policies”.[60] Mr Kiernan also referred to Clause 14.1 of the Employment Agreement which states:
The Employee acknowledges that the duties performed require the Employee to maintain a reasonable degree of fitness and health.[61]
[60] Affidavit of James Gerard Kiernan sworn 28 June 2012 at paragraph 44d.
[61] Affidavit of James Gerard Kiernan sworn 28 June 2012 at paragraph 39.
Mr Kiernan produced no medical evidence or any occupational health and safety policy which supported his assertion that to continue to employ the Applicant at Cockburn would have presented an “unacceptable risk of physical harm” to the Applicant and an “unacceptable health and safety risk to National Storage”.[62]
[62] Affidavit of James Gerard Kiernan sworn 28 June 2012 at paragraph 42.
I do not consider that any of the material before the Court establishes that it would have been necessary, in any event, to transfer the Applicant from Cockburn because of hazards connected with that position.[63]
[63] See s. 81 of the Fair Work Act2009 (Cth).
The second question concerns whether the Applicant was forced to resign. The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1)[64] and summarized by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd.[65] What emerges from the authorities is that, whether the employer’s conduct intended or had the probable effect or result of bringing the employment to an end, such that the employee effectively had no choice but to resign, is the test to determine if a resignation will amount to a dismissal.
[64] Mohazab v Dick Smith Electronics Pty Ltd (No. 1) (1995) 62 IR 195.
[65] O’Meara v Stanley Works Pty Ltd [2006] AIRC 496.
Having determined that the employer’s demotion of the Applicant was a repudiation of her contract entitling her to treat the employment as having come to an end, and on that basis, a termination at the initiative of the employer, it is not necessary to determine if she was ‘forced to resign.’
The employer’s conduct between 19 December 2011 and
20 January 2012 would, in any event, have been likely to lead to such an outcome. During that period the employer had issued her with a warning for leaving the workplace to attend to a family emergency, demoted her from ‘Centre Manager’ to ‘Assistant Centre Manager’ and changed the location of her employment and when she sought to negotiate offered her either full-time employment at the lower classified level or casual employment.
I am satisfied that the conduct of the employer was such as to constitute a breach of the employee’s contract in circumstances where the employee’s only option was to accept the breach or resign.
For the above reasons, I am satisfied that the Respondent:
(a)contravened s.340(1) and s.351 of the Act when it issued the Applicant with a warning letter on 29 December 2011;
(b)contravened s.351 of the Act when it demoted the Applicant and transferred her work location; and
(c)contravened s.351 of the Act when it dismissed the Applicant.
The orders sought
The Applicant has not sought the imposition of a pecuniary penalty on the Respondent but has sought the payment of compensation in the amount of $34,001.47. This is based on her claimed income lost, due to the termination of the employment, up until 28 August 2012, being the date for the birth of her child.
The Respondent submitted that the Applicant had only worked for the Respondent for a little over one year and had frequent absences from her employment. There was no evidence of what steps she took to obtain alternative employment. Further, the Respondent refers to the Applicant’s email of 10 January where she proposed to become part-time and submitted that it was unlikely that she would have continued to work on a full-time basis.
The Applicant in response submitted that the request to go part-time was a way of trying to negotiate with the employer because of the concerns about taking time off to attend doctor’s appointments. The Applicant stated that she did try to find employment after handing in her resignation but there came a point where she stopped because it was very evident that she was pregnant.
Section 545(2)(b) of the Act provides that the Court may make an order “awarding compensation for loss that a person has suffered because of the contravention”. The purpose of such an order is to provide an amount to the employee which will put them in the same position they would have been had the employer not contravened the provisions of the Act. The general approach in cases of termination of employment is to estimate the period of time that the employment was likely to have continued for, but for the termination of the employment, and then to calculate the remuneration the employee would have received during that period. From that amount is then deducted the actual remuneration the employee has earned post the termination, or the amount they would have been likely to earn had they taken reasonable steps to mitigate their loss.
The employer bears the onus of proving that the employee has failed to mitigate his or her loss.[66] If the employer pleads that the employee has failed to mitigate his or her loss, then it is proper and reasonable ‘to provide particulars by way of specifying the steps which [the employer] contends the [employee] could have taken but did not take’. [67]
[66] See M. Irving, The Contract of Employment, Lexis Nexis Butterworths, Australia, 2012, p 898.
[67] M. Irving, The Contract of Employment, Lexis Nexis Butterworths, Australia, 2012, p 898-899 quoting Kearney J in Prus-Grzybowski v Everingham (1986) 87 FLR 182 at 185.
The Applicant quantified her loss on the basis of the income she would have earned as a full-time Centre Manager up until the birth of her child plus superannuation and the loss of 18 weeks paid parental leave minus a small salary overpayment and her Baby Bonus entitlement. She produced no evidence of the jobs she had sought to obtain after the termination of her employment but neither was she cross-examined by the Respondent about her attempts to gain employment.
By the time of the termination, the Applicant was eight weeks pregnant. It is reasonable to assume that she may have had some difficulty in obtaining new employment at this time given her need to attend medical appointments and the fact that she would be unable to work once she approached the birth of her child. Had she obtained employment, she would not have been entitled to statutory parental leave as she could not have met the requirement for having completed at least 12 months of continuous service immediately before the expected date of birth.[68]
[68] Section 67 of the Fair Work Act 2009 (Cth).
The Applicant’s calculations are based on an assumption that she would work up until the due date. Within six weeks of the due date an employer is entitled to require an employee to establish that they are fit for work and in most cases employees do not work right up until the due date.
I am satisfied that there should be some discounting of the amount claimed by the Applicant on the basis that it is most likely that she would have taken some time off work immediately prior to the birth. For the purposes of these proceedings, I have quantified this as two weeks.
The Applicant’s claim only includes lost remuneration up until the due date of birth and the 18 weeks paid parental leave she would have qualified for had she been employed at that time. She does not make any claim for loss associated with a projected return to work following maternity leave.
In those circumstances, in assessing the likely period of continuing employment, I will not take into account any period post maternity leave. Had the employment continued, the Applicant would have been entitled to a period of unpaid parental leave which would have extended beyond the trial date.
Taking into account all of the circumstances, including the fact that no penalty has been sought by the Applicant to be imposed on the Respondent arising from the contraventions, I am satisfied that an appropriate sum to be paid to the Applicant in compensation for the loss she has suffered is $32,130.78.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 9 August 2013
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