Yeoh v IBM Australia Limited
[2015] FCCA 724
•18 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YEOH v IBM AUSTRALIA LIMITED | [2015] FCCA 724 |
| Catchwords: HUMAN RIGHTS – Sex discrimination – no unlawful conduct – application dismissed. |
| Legislation: 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 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 2009 in the rating being increased to 2 +.
On 14 May 2009, the applicant asked Mr Chatterjee for approval to work part-time at the level of 20 hours a week to accommodate flexibility for her as a young mother and as an employee of the respondent that the respondent clearly had trained and wanted to ensure it was able to keep. On 26 May 2009, Mr Chatterjee confirmed that the applicant would be allowed to work 20 hours from home on a flexible basis for the applicant. The applicant identified to Mr Chatterjee at that time that she would not be able to work on Thursdays because of the need to care for her child.
It is clear from the email from the applicant to Mr Chatterjee on 2 July 2009 that she was being given considerable flexibility as to the timing as to when she would perform the 20 hours per week. Shortly after returning on this 20 hour week, the applicant was allocated to the ISAS project and a Mr Heroux became her functional manager. A more senior IBM member responsible for, relevantly, Mr Chatterjee met with the applicant and her husband on 17 September 2009 and at that stage no issues were raised by the applicant of any nature in relation to Mr Chatterjee.
In relation to the forthcoming assessment for 2009 of the applicant’s personal business commitment, Mr Chatterjee emailed the applicant about the need for her work to be discussed with Mr Heroux in relation to her 2009 PBCs. On 25 September 2009, the applicant responded to that email and said relevantly:
… It’s kind of hard at the moment to think of development past “I want my brain back”. =\
On 8 October 2009, the applicant sent an email to Mr Heroux about a technical demonstration, saying:
I, for one, feel like I’m constantly reading documentation on how different things work, and it’s kind of difficult articulating one thing from the next – it’s just a mass of information. I think that my brain is currently a jumbled mess (although working part time probably doesn’t help with this)!
In January of 2010, the applicant received a PBC rating of 2, the same as she had the year before, before her complaint about 2008 PBC and request for review. This assessment for 2009 again identified her as a solid contributor. The applicant responded to that rating on 5 January 2010 and said in an email:
Wow!! That is so much better than I expected.
It is clear from the evidence of Mr Heroux that there were changes in the direction and scope of the ISAS project and that the applicant performed certain work that was then not able to be used and that she had to skill up as a result of the changes in direction of that ISAS. Mr Heroux identified that up to early 2010, the applicant appeared to be performing well and after that time of early 2010 did observe a decline in her application and the quality of her work.
On 4 March 2010, Mr Heroux emailed Mr Chatterjee about the applicant’s work performance and concerns about her productivity. Mr Chatterjee said he would talk to the applicant about what is happening and replied to Mr Heroux that he had discovered that the applicant was on sick leave from 3 to 5 March. On 9 March 2010, the applicant emailed Mr Chatterjee, Mr Heroux and others about potential absence at work due to having a procedure done as a result of complications relating to the birth of her child.
The applicant identified that she would be out of action from anything from a few hours to a few days or to a week. The applicant volunteered:
I’ve been told that this procedure will help clear up some of the fogginess and exhaustion, so here’s hoping! =)
On 17 March 2010, the applicant sent an email to Mr Chatterjee about having a day and a half off and that she was “planning to work this afternoon” and might make up for lost hours after her daughter’s bedtime, or otherwise apply for sick leave.
Mr Chatterjee replied, saying that he hoped the applicant would feel better soon. These communications are of particular significance in relation to one of the allegations advanced by the applicant in this case.
One of the complaints under the Sex Discrimination Act advanced by the applicant was that she was being discriminated against by being required to perform in excess of 20 hours per week. The applicant alleged that she worked 60 to 40 hours per week for a period of almost 14 months. Initially, she asserted it was 18 months, and corrected that in evidence. These emailed communications do not sit with the applicant working the excessive hours that she alleges. Indeed, it is clear that at no stage did the respondent, or any officer of the respondent, direct the applicant to work beyond her 20-hour week. It is also clear that when the applicant did raise with the respondent the proposition that she was working hours beyond 20 hours per week, that she was told that she should not be doing that, and that she should only be working 20 hours a week.
The applicant alleges that she was given a workload which was not capable of being performed within that 20-hour period. Whilst it is true that the applicant did make complaints about her workload, I do not accept that she was working more than 20 hours a week on any regular basis. I accept that she was working odd hours, due to the flexibility that she had as a result of her own request for that part‑time employment. I do not accept that the applicant was given a workload that required her to work the excess of 20 hours per week.
The communications identified to date are also relevant, because it is alleged, in the application, that the applicant was the subject of a discriminatory allocation of administrative duties, and discriminatory treatment in relation to the conduct of the 2008 performance review and discriminatory conduct in relation to a failure to take account of her family responsibilities, and differential treatment because of her gender or status as a young mother, and subsequently, following the separation with her husband, being a separated single mother.
The communications with Mr Chatterjee by the applicant, identified to date, do not sit comfortably with these allegations of the applicant in fact being true. In that regard, I should note that I have real concerns as to the credibility of the applicant for a combination of reasons. First, in the course of cross-examination, she volunteered a serious allegation against Mr Chatterjee that he had called her a “baby brain”. Nowhere in the applicant’s two lengthy affidavits was there any such allegation identified. More importantly, the applicant agreed that she recognised that that was an allegation that had an impact in relation to possible claims under the Sex Discrimination Act, and recognised that at the time that she told the Court, this allegation was something that might be relevant to advancing her claim.
When asked if she could identify when the conversation occurred in which that was said, she could not do so. When asked to identify the context in which it occurred, she could not do so. I accept the submission of the respondent that this evidence was made up by the applicant in order to try and advance her case. To deliberately fabricate evidence to advance one’s case casts significant doubt on the credibility of the applicant in relation to the other areas of conflict of evidence between the applicant and the respondent’s witnesses.
Indeed, I regard the applicant as having embellished her evidence and exaggerated her claims in order to try and advance her interests in respect of the proceedings. Her communications by email with the officers of the respondent are inconsistent with the level of fear that the applicant alleges was the reason for failing to advance any written complaint concerning the serious allegations of contravention of the Sex Discrimination Act, so far as putting them in writing is concerned, prior to the termination of her employment. The applicant agreed that there was an IBM Code of Business Conduct by which she was bound, and it is not in dispute in this case that that code of conduct had contractual effect and was one that was implemented by the respondent in relation to all of its employees. The code of conduct was in a document entitled Business Conduct Guidelines. It had a section entitled ‘Speaking Up’. In that regard, the code of conduct identified the responsibility of employees to know and follow the Business Conduct Guidelines, including reporting potential violations, and said that:
IBM will properly review your report, and will not tolerate threats or acts of retaliation against you.
There is a whole series of different options in relation to raising concerns for employees identified in 2.1 to ensure a non-threatening environment for the purpose of raising concerns of violations in the workplace. Section 3.1 identified the work environment requires and, relevantly:
IBM strives to maintain a healthy, safe and productive work environment which is free from discrimination and harassment, whether based on race, colour, religion, gender, gender identity or expression, sexual orientation, national origin, genetics, disability, age or any other factors that are unrelated to IBM’s legitimate business interests. IBM will not tolerate sexual advances, actions or comments, racial or religious slurs or jokes, or any other comments or conduct that, in the judgment of IBM management, creates, encourages or permits an offensive or intimidating work environment.
The policy expanded in that regard and identified mechanisms by which information could be advanced and required complaints to be made if such conduct had occurred. The applicant agreed that she is bound by that code of conduct and agreed that she had breached it in not advancing any written complaint in relation to her allegations. The applicant’s explanation was that she was overcome by fear, and it was in those circumstances she was not prepared to speak up. That allegation does not sit consistently with her affidavit, which suggested that it was her husband that feared reprisals and suggested it was in his interests that she refrained from speaking up and lodging any complaint.
A further difficulty the applicant faces in this regard is that when she did not split up with her partner, which occurred in October 2010, she still did not lodge a complaint. Whilst I agree that it is in no way determinative of the question of whether there may have been a breach of the Sex Discrimination Act whether there has been a written complaint or indeed an oral complaint, it is nonetheless a matter that is relevant and, in this case, is a further factor which causes me concern in relation to the evidence of the applicant.
The applicant was and is clearly a highly intelligent, articulate and capable individual who was well able to formulate and make written complaints if she chose to do so. Indeed, the applicant had no hesitation in doing so in relation to her PBCs. Nor as was pointed out in evidence in relation to the home construction that was taking place from March 2009 until August 2010 does it appear that the applicant had difficulty expressing in writing criticisms in relation to the builder working immediately beside her in relation to the work on her home.
It is also relevant in that regard that her concern about fear of Mr Chatterjee was one where she was working at home and not with Mr Chatterjee in her presence and it is clear that the applicant had access to a large number of other employees, including relevantly Mr Wightwick.
It is true that in November 2010 the applicant did raise for the very first time orally with an employee of the respondent an allegation that some weeks she was working 60 hours. She identified that she knew she was not supposed to be doing so and that she was supposed to be only working 20 hours a week. She identified that she was having problems as a result of the split-up with her husband and in relation to access of the daughter. She was told on that occasion quite clearly she should not be working long hours and that if she wished to make a complaint she could do so but she did not wish to do so.
Materially, the applicant says that in that conversation she said she would make a complaint if she was allowed to change manager. Ms Hughes, who identified the conversation that had took place in November 2010 squarely said:
If Ms Yeoh had indicated that there was an ongoing problem with her manager, I would have taken steps to raise this with Mr Chatterjee.
I accept the evidence of Ms Hughes in that regard and I do not accept the evidence of the applicant, that she made a request on that occasion to change manager. Perhaps more importantly, nor did the applicant raise any allegations of conduct that would constitute a breach of the Sex Discrimination Act in that conversation with Ms Hughes.
On 19 March 2010, the applicant sent an email to Mr Chatterjee about her current medical condition, which has an impact on her work performance due to severe exhaustion which has been ongoing since her child’s birth. The applicant said she had been reading documentation that just feels like it’s not sinking in, even after reading it multiple times, and that she can’t seem to process anything this week.
On 24 May 2010, the applicant sent an email to A. Sanjar, D. Heller and J. Heroux about work matters saying:
Overall, I’m feeling a whole lot more *involved* having spent a week and a half doing actual hands on work with it…. [T]his feels like one of my most productive weeks since we were doing perl scripting last year! I’m feeling really quite excited about the project at the moment, and looking forward to getting some answers from the forums. Much happier =)
In mid-2010 the applicant had a conversation with Mr Chatterjee about the hours she was working. Mr Chatterjee gave evidence and said that the applicant did not allege she had been working 40 or 60 hours a week to him. I accept Mr Chatterjee’s evidence in preference to that of the applicant. Mr Chatterjee gave evidence that the applicant had raised that she was working odd hours and that he told her she was not to work more than her 20 hours.
I accept that evidence of Mr Chatterjee. I do not accept that Mr Chatterjee engaged in any conduct that treated the applicant differently because of her gender, marital status, her family requirements or by reason of becoming a single mother. I also accept Mr Chatterjee’s denials of the allegations of adverse remarks made in the applicant’s evidence attributed to Mr Chatterjee. I was impressed by Mr Chatterjee as a witness and regard his evidence as responsive and forthright and I accept Mr Chatterjee’s version of the conversation that occurred in January 2012 about the PBC review for the applicant in which the applicant made allegations against Mr Chatterjee for the first time orally to him. I find those allegations were advanced by the applicant knowing they were not true.
In August 2010, the applicant emailed Mr Chatterjee asking to attend a Linux conference in Australia and Mr Chatterjee gave her permission to do so. On 7 September 2010, Mr Heroux emailed Mr Chatterjee about the applicant expressing an interest in changing projects and looking at possible alternatives. In September 2010 Mr Chatterjee and Mr Heroux had a conversation about the applicant being unhappy on the project she was working with. Nothing was conveyed to Mr Heroux by the applicant, that she was unhappy with Mr Chatterjee. I prefer Mr Heroux’s evidence to that of the applicant in this regard.
On 5 October 2010 the applicant emailed Mr Heroux and others requesting leave to deal with house moving and such and on 6 October she was told:
Yes, I’m okay with this. Get yourself moved :-)
In October 2010 the applicant went on leave and broke up with her husband during the period of leave but continued living at the matrimonial home. It is relevant in this regard to identify that the applicant in her evidence said that she blamed IBM for the break-up of her marriage and said it was one of the purposes for which she brought these proceedings.
The applicant asserted that if the respondent had changed manager she would not have pursued these proceedings and would not have pursued any of the allegations. I have great difficulty with understanding how it can be that the applicant can attribute the break-up of her marriage to the refusal to change a manager and had a willingness to end her marriage but not to advance a complaint if there was in fact any truth in the applicant’s assertions of inappropriate conduct by Mr Chatterjee.
In any event, I find that the respondent was not the cause of the applicant’s marital break-up, nor was the respondent the cause of the applicant’s difficulties she had been having since the birth of her new child, and I find that the applicant projected her problems onto those around her to blame others for her marital difficulties and problems following child birth.
On 4 November 2010 Mr Chatterjee actually emailed Mr Heroux and Mr Ralph Christ about the applicant being unhappy with the project and asked on her behalf can something be done to resolve this. It is clear that Mr Chatterjee’s understanding at this time was that the unhappiness of the applicant was directed to the nature of work that she did not seem to be enjoying and the applicant in no way conveyed to him as unhappiness in respect of him.
Mr Heroux replied to Mr Chatterjee discussing the project that the applicant was on and the entire team had gone through a lot of churn that year and acknowledged that, with the applicant’s child and the housing changes that the applicant was going through, things have been a bit tough for her, and Mr Heroux said that he can now free her up to look around for other opportunities.
On 5 November 2010 the applicant had a conversation with Mr Wightwick about her being unhappy on the project she was working on and Mr Wightwick emailed Mr Chatterjee about that, asking for his perspective on what was going on. At the same time Mr Wightwick also emailed Ms Hughes and asked her to reach out to the applicant, and Ms Hughes gave evidence as to her steps to attempt to help the applicant get back to work.
On 5 November 2010 the applicant had a conversation with Mr Chatterjee about moving on from the project. On 5 November 2010 Mr Chatterjee emailed Mr Christ to say things are very serious with the applicant, she is very upset with her work stuff and that “we need to help”. This communication is again inconsistent with there being some fear of Mr Chatterjee that prevented the applicant raising any issue.
On 6 November 2010 Mr Heroux emailed Mr Chatterjee about planning and updating the staffing spreadsheet to show the applicant is looking for a new assignment. On 6 November 2010 Mr Heroux emailed Mr Christ, Mr Chatterjee and others, answering questions from Christ about the applicant, including the nature of the work assignment, the frequency of Mr Heroux’s meeting with the applicant from the perspective of trying to determine what might be the problem. The applicant then had a face-to-face meeting with Ms Hughes in November 2010.
In December 2010 the applicant’s husband informed Mr Chatterjee that he and the applicant had separated. On 14 December 2010 the applicant email Mr Chatterjee, Mr Heroux and others regarding her PBC write‑up for 2010 and said she had had a difficulty professionally and the recent breakdown of her marriage. The applicant said:
I understand my rating will be stupendously poor this year.
…
I have nothing to show for the past year of work.
It was this year of 2010 that her standard of work dropped off after early 2010. This early communication is, in my opinion, again inconsistent with the assertion of excessive hours being worked at the direction of the respondent. In January 2010, the applicant had a conversation with Mr Chatterjee about Mr Russell and how Mr Russell was treating the applicant. It is clear that the applicant raised with Mr Chatterjee that there appeared to have been a change in how Mr Russell was interacting with her out of the workplace.
However, I accept Mr Russell’s evidence that he remained courteous and in no way treated the applicant differently in the workplace, or working with her by reason of the marriage breakup, her gender, her single status or being a young mother. I accept Mr Russell’s evidence in preference to that of the applicant in respect of the communications that took place between the applicant and Mr Russell.
In January 2011, the applicant left the matrimonial home and moved to a rented property. While the applicant was moving to that property, she sustained a back injury and then went on sick leave for many weeks requiring medication and physiotherapy for several months. In January, the applicant received a rating for PBC of 3. In early 2011, the applicant commenced work on the Samba project with Mr Tridgell. In March of 2011, the applicant emailed Mr Wightwick about the 2012 LCA conference and said that she was working directly with Mr Tridgell on the Samba team and was much happier, and thanked Mr Wightwick for his friendship and advice.
In 23 March 2011, the applicant emailed Mr Heroux, Mr Chatterjee and Mr Tridgell about having a day off because of her back and Mr Chatterjee replied to that email saying:
I’m sorry to hear this. Thanks for keeping us informed, and I hope you can get some relief.
On 24 March 2011, Mr Heroux emailed Mr Chatterjee, suggesting he ask local HR to assist because of issues facing the applicant and says:
With all of the outside issues, she isn’t going to be able to keep up with her work. That’s not realistic to expect of her.
On 28 March 2011, the applicant emailed Mr Heroux in relation to the nature of her custody arrangements, day care arrangements and when she is available to work. Mr Heroux said he wants to target times to talk about work for the applicant and that that generally means between 7.30 am and 6 pm. On 18 April 2011, the applicant emailed Mr Heroux, Tridgell and Chatterjee about her work and personal situation and said:
I’m having some trouble dealing with everything and feel that it has largely to do with massive sleep deprivation causing further stress and distraction…
The applicant outlined changes to the day care arrangements she was having for her daughter and said her daughter:
Is in day care during [her husband’s] work days and with me for the remainder, greatly reducing the hours that I am capable of working during May whilst ensuring that my husband has ample work time.
The applicant asked for some time off to sort out her sleep patterns, perhaps five to six weeks, and said she would like to return to full hours at the end of this. I find that the stress and sleeping problems that the applicant was having were not caused by the hours she was working for the respondent, but were due to the other non-work related activities and non-work-related problems.
On 16 May, the applicant went on sick leave and remained on sick leave till September 2011. On 1 June 2011, the applicant emailed Mr Chatterjee to update on her leave. On 3 June 2011, Mr Chatterjee replied to the applicant, saying he is sorry to hear she is having trouble getting her sleep back in order and that this is a good idea to get appropriate counselling. On 7 June 2011, Mr Chatterjee tried to call the applicant and sent her a follow-up email asking how she is and what can he do to assist, and also asked her to put in leave forms and send medical certificates so it’s appropriately documented.
On 9 June, Mr Chatterjee asked Ms Hughes to get in touch with the applicant. On 10 June 2011, Ms Hughes telephoned the applicant and expressed concern for her safety and wellbeing. Ms Hughes sent a follow-up email to Mr Chatterjee and others reporting on the conversation. On 10 August 2012, the applicant was emailed by Ms Hughes about her return to full-time hours from sick leave, and asked to set up a meeting with her. The applicant replied to Ms Hughes that she had problems in discussing her return to work with her US-based manager.
On 17 August 2011, Mr Chatterjee had a conversation with the applicant about returning to work full time. Ms Hughes met with the applicant about coming back to work full time and other matters, and invited the applicant, if she wished to, to make a formal complaint. I do not accept that anything was said to Ms Hughes on that occasion that involved any allegation of unlawful conduct under the Sex Discrimination Act by the respondent or anyone at all. On 26 August 2011, Ms Hughes emailed Mr Hunt from Mr Chatterjee about putting in place a return-to-work plan for the applicant. Ms Hughes said she wants to extend the applicant’s access to EAP to support her with her return-to-work plan. Ms Hughes has already had six sessions but believes that she will need some additional support in returning to full time work.
Ms Hughes had a further conversation with the applicant about her counselling sessions on 29 August 2011 and on 1 September, the applicant emailed Mr Chatterjee about her return-to-work plan saying she would compress the week and not work Fridays at all. On 1 September, Mr Chatterjee emailed the applicant about return to work and asked if there’s a way to have the applicant working out of the Adelaide office. On 13 September, Mr Roe emailed the applicant and Mr Chatterjee about the applicant’s her return to work and asked how things were going.
On 11 October, the applicant returned to work but continued to work from home. On 19 October 2011, the applicant emailed Mr Tridgell and Mr Chatterjee about her blog posts and the difficulty she has retaining information. The applicant said:
This is simply part of my medical problem.
that she was still working to overcome and:
I will get better.
On 8 November 2011, Mr Chatterjee emailed the applicant, Mr Hughes and Tridgell about her work plan and Mr Chatterjee asked for the applicant to update on her deliverables against the work plan that was developed for her. On 9 November, Mr Chatterjee emailed Mr Hughes about the applicant’s return to work given the applicant’s full time hours. Mr Chatterjee asked for help to get the following message across to her and identified the need for the applicant to understand her contributions against her work plan and to ensure she is connected with the rest of the team and attending meetings, both locally and internationally.
On 16 November 2011, the applicant emailed Mr Chatterjee, Hughes and Tridgell giving an update on her deliverables. Materially, The applicant emailed them saying she is doing 40 hours but might not be as efficient as everybody’s 40 hours. I interpose to say that again, this type of email doesn’t sit comfortably with the assertion that she was doing excessive hours before and was incapable of raising that by email. On 14 December 2011, the applicant emailed Mr Chatterjee, Tridgell and her husband about problems getting her machine working and comments on her personal injuries.
On 9 January 2012, Mr Roe provided comments on the applicant’s PBC rating and why he agreed with her PBC 3 and on 18 January 2012, Mr Chatterjee had a performance review with the applicant at the LCA conference in Ballarat and gave her a rating of 3. That is the time of the communication of the conversation I have referred to before in which I accept Mr Chatterjee’s evidence in preference to that of the applicant. There were further communications in January-February about the applicant’s work plan, including an email from Mr Chatterjee to the applicant about a new power cloud role opportunity.
However, on 16 April 2012, the applicant went on sick leave and did not resume attending to any employment with the respondent and was, as I have indicated, dismissed on 15 March 2014. In the applicant’s own evidence she agreed that her work performance in 2011 and 2012 would have justified her dismissal by the respondent. That’s a significant concession by the applicant in relation to the nature of her work performance and in relation to the nature of the complaints she is now seeking to advance.
Section 14(2) of the Sex Discrimination Act provides as follows:
Discrimination in employment or in superannuation
…
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
Section 5 of the Sex Discrimination Act provides as follows:
Sex discrimination
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator ) discriminates against another person (in this subsection referred to as the aggrieved person ) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.
(2) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
Section 106 of the Sex Discrimination Act provides as follows:
Vicarious liability etc.
(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
I take into account, in respect to the allegation of unlawful conduct under the Sex Discrimination Act, the onus of proof that lies upon the applicant in respect of what are clearly serious allegations in respect of unlawful conduct by officers of the respondent. In that regard, I refer to para.16 of Chen v Monash University [2015] FCA 130. In relation to the relevant test in terms of differential treatment and the need for a causal nexus, I take into account what was said by Marshall J in Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCA 439 at [10] and [11] which decision I note was reversed on a different issue by the Full Court in relation to the contractual nature of the code of conduct in that case; see Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177
I was impressed by the level of care and concern for the applicant that each of those involved in her management for the respondent displayed despite in what were obviously difficult circumstances in dealing with the applicant. I am satisfied that the respondent took all reasonable steps to prevent the applicant from being exposed to any conduct of an unlawful nature. I find that the applicant was not exposed to any conduct of an unlawful nature in contravention of the Sex Discrimination Act.
Specifically, I find that the applicant was not the subject of any discriminatory treatment in respect of pay or disparity in pay. I find that the applicant’s skills and experience were not commensurate with that of her husband and I accept the respondent’s evidence in that regard. I do not accept that the applicant was in any way discriminated against in relation to the level of pay that she received by the respondent. Indeed, there was no basis for that allegation in the evidence adduced by the applicant and I accept the evidence adduced by the respondent as to the difference in the skills and experience that made Mr Chris Yeoh one a person for whom the applicant was willing to pay to get that special skill base.
I find that the applicant was not subjected to any discriminatory allocation of administrative duties. I find that the applicant was not subjected to any discriminatory treatment in the conduct of the 2008 performance review. I find that the applicant did not, in fact, work hours in excess of 20 hours per week and I find the applicant was not subjected to any discriminatory requirement by the applicant requiring her to work in excess of 20 hours a week.
I find that the applicant was not subjected to any discriminatory cancellation of her annual leave and I find that the applicant was not subjected to any alleged discriminatory refusal to permit her to take long service leave.
I find that the applicant was not subjected to discriminatory conduct of ostracising by a friend a co-worker and I find that there was no discriminatory conduct by Mr Chatterjee in relation to any of his treatment or interaction with the applicant. I find that there was no discriminatory failure to take into account the applicant’s family responsibility. I find that Mr Chatterjee was in fact at all times acting professionally and with considerable care in accommodating the requests, expectations and problems of the applicant.
I find that there was no basis for the criticisms of Mr Chatterjee advanced by the applicant and I reject the applicant’s evidence in respect of her criticisms of Mr Chatterjee. There is no implied term of the kind that was identified in the pleading in light of the decision of the High Court in Commonwealth Bank of Australia v Barker [2014] HCA 32. To the extent of the other terms I identified, I find that the applicant was at no stage subjected to victimisation by her colleagues or managers and I find that at no stage was the applicant the subject of having imposed on her requirements that had the effect of disadvantaging the applicant.
I do not accept that the applicant’s depressive disorder, panic disorder or any other illness was caused by or contributed to by her employment with the respondent. I reject the allegation of breach of contract. I find that there was no unlawful conduct by the respondent on contravention of the Sex Discrimination Act. In those circumstances, I dismiss the amended application.
In this matter the respondent has succeeded and the amended application has been dismissed. The ordinary rule is that costs follow the event. At the directions hearing prior to the listing of this matter, I directed that affidavits be exchanged in sealed envelopes for the purpose of ensuring that the Court could, on the occasion of hearing the matter, deal finally with all issues, including costs and I foreshadowed that I would fix the costs on that occasion. I have had tendered before me an affidavit identifying the applicant’s costs up to 25 February 2015 and it’s clear that their costs in that regard would now in fact exceed 250,000.
The respondent served a formal bank letter on 12 March 2014 on the applicant explaining in detail the difficulties with the applicant’s case and offering the applicant the opportunity to discontinue on the basis that each party pay its own costs as well as providing for mutual releases. This was an offer expressly noted “without prejudice save as to costs.” It is a Calderbank letter. As a Calderbank letter, it was clearly a reasonable offer put to the applicant in circumstances where the applicant’s case, on her own material, faced considerable problems. I am satisfied that it was unreasonable of the applicant not to accept the Calderbank offer.
In those circumstances, it is appropriate to permit from the date of that offer an assessment of costs for the purpose of fixing an amount that would have followed if an indemnity order had been made. Taking into account the evidence of Mr Woodbury in the affidavit of 25 February 2015 and 18 March 2015, as well as taking into account the applicant’s circumstances, I order the fix costs of the respondent to be paid by the applicant in the amount of $150,000.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 31 March 2015
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