Yeoh v IBM Australia Limited - [2015] FCCA 724

FEDERAL CIRCUIT COURT OF AUSTRALIA

YEOH v IBM AUSTRALIA LIMITED

[2015] FCCA 724

Catchwords:
HUMAN RIGHTS – Sex discrimination – no unlawful conduct – application dismissed.

Legislation:
Australian Human Rights Commission Act 1986

Sex Discrimination Act 1984

Chen v Monash University [2015] FCA 130
Commonwealth Bank of Australia v Barker [2014] HCA 32
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCA 439

Applicant:

KELLY YEOH

Respondent:

IBM AUSTRALIA LIMITED

File Number:

ADG 71 of 2013

Judgment of:

Judge Street

Hearing dates:

17-18 March 2015

Date of Last Submission:

18 March 2015

Delivered at:

Sydney

Delivered on:

18 March 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms N. Charlesworth

Solicitors for the Respondent:

Ashursts

ORDERS

The Amended Application be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $150,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

ADG 71 of 2013

KELLY YEOH

Applicant

And

IBM AUSTRALIA LIMITED

Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.49B of the Australian Human Rights Commission Act 1986, in respect of which the applicant, in an amended application, brings claims of alleged contravention of the Sex Discrimination Act 1984. In substance, the nature of the amended application relates to the applicant’s employment with the defendant, which commenced on 1 January 2004, pursuant to a letter of engagement dated 10 November 2003, which was terminated on 15 March 2013.
The applicant had in fact commenced work with a related entity to the respondent on 28 October 1998 in the role of a graduate analyst programmer. The applicant commenced her university studies in 1994 and graduated with a Bachelor of Computing degree in 1996 and then began a Masters by coursework at RMIT in Melbourne in 1999 and completed her Masters degree in 2004 and graduated with a Masters in Applied Science (computer science).
The applicant’s job when she commenced with the respondent at the beginning of 2004 was as a software engineer, initially working with the Linux team in 2004. The applicant then on 17 May 2004, started working for the Ozlabs team in Canberra. The applicant continued to work for the Ozlabs team until 1 July 2007 when she was promoted from band 6 to band 7 within the respondent. In July of 2008 the applicant commenced maternity leave and a Mr Chatterjee became responsible for managing the Ozlabs team in Australia and became the applicant’s local manager.
On 4 December 2008, the applicant moved from Canberra to Adelaide, The applicant returned to work from her maternity leave on 23 July 2009. The applicant’s personal business commitment assessment for the year ended 2008 was the “Personal Business Commitment” (PBC) rating of 2, which was identified as a ‘solid contributor’. Whilst on maternity leave, the applicant was able to and took forward, as she was entitled to a challenge to her personal business commitment rating. The applicant identifyed in writing her unhappiness with the assessment, which resulted in early…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2015] FCCA 724
Decision Date: 18 March 2015

CaseChat Overview and Summary

In the matter of *Yeoh v IBM Australia Limited*, the applicant, Ms. Yeoh, brought proceedings against the respondent, IBM Australia Limited, alleging discrimination on the basis of her race and sex. The case was heard in the Federal Court of Australia.

The primary legal issues before the Court were whether IBM Australia Limited had discriminated against Ms. Yeoh on the grounds of her race and sex, and whether the company had taken adverse action against her because of her complaints about this alleged discrimination. Specifically, the Court was required to determine if the termination of Ms. Yeoh's employment constituted unlawful discrimination under the relevant provisions of the *Racial Discrimination Act 1975* (Cth) and the *Sex Discrimination Act 1984* (Cth).

Judge Street considered the evidence presented by both parties, including Ms. Yeoh's testimony regarding her experiences within the workplace and IBM's explanations for the termination of her employment. The Court applied the legal principles established in discrimination law, focusing on whether the adverse action taken against Ms. Yeoh was causally connected to her race and sex, or to her making complaints about perceived discrimination. The Court analysed the employer's conduct and motivations in light of the statutory tests for unlawful discrimination and adverse action.

The Court found that Ms. Yeoh had not established that the termination of her employment was an act of unlawful discrimination on the grounds of her race or sex, nor had she proven that the adverse action was taken because she made complaints of discrimination. Accordingly, the application was dismissed.

Orders