FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - complaint of unlawful termination of employment - whether employee terminated for the prohibited reason of absence on maternity leave - employee transferred to temporary position prior to commencing maternity leave - employer undertook restructure of business during employee’s absence on maternity leave - whether employee’s employment terminated for reason of operational requirements or for absence on maternity leave

Workplace Relations Act 1996  (Cth)  ss 170CK, 170CQ, 170CR

Johns v Gunns Ltd (1995) 60 IR 258

ELIZABETH TREADWELL v ACCO AUSTRALIA PTY LTD

VG 538 of 1997

PARKINSON JR

MELBOURNE

16 DECEMBER 1997

THE COURT ORDERS THAT:

1.         The respondent reinstate the applicant to the position held prior to the termination of the employment or to another position on terms and conditions no less favourable.

2.         The date for the reinstatement be seven days from the date of this decision.

3.         The employment of the applicant by the respondent be treated for all purposes as having been continuous between the date of termination and the date of reinstatement.

4.         The respondent pay to the applicant within twenty one days from the date of this order remuneration lost by the applicant as a result of the termination from the 1 August 1997to the date of reinstatement.  From this amount shall be deducted an amount representing all payments made by the respondent to the applicant on account of her termination save for annual leave entitlements.

5.         The parties have leave to apply to the court on twenty four hours notice in the event that agreement cannot be reached in relation to the calculation of the amount of lost remuneration ordered pursuant to order 4 herein.

6.         The parties have leave to apply prior to Monday 22 December 1997 with respect to the period stated in order 2 herein.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

This is an application brought pursuant to s170CP of the Workplace Relations Act 1996 (“the Act”). The applicant alleges that her employment was terminated for a reason which included a reason prohibited by s170CK of the Act. The applicant seeks orders pursuant to s 170CR of the Act. The applicant contends that her employment was terminated for a reason based upon her sex or pregnancy, family responsibilities or absence on maternity leave. 

The respondent contends that the sole reason for the termination of the employment was the operational requirements of the business and that the termination was not for the reason and did not include as part of the reason the applicant’s sex, pregnancy, family responsibilities or absence on maternity leave.  The respondent contends that the redundancy occurred as a consequence of there being no work of a type suitable to the applicant’s skills and experience available for her upon her return from maternity leave. It contends that the position in which she was employed prior to her maternity leave commencing no longer existed and that there was no other position for which she was suitable for appointment.

The applicant concedes that the respondent reorganised the workplace and that as a result of the restructure a number of redundancies occurred.  The applicant contends however that the respondent took no steps to provide for a position to be available upon her return from maternity leave and selected the applicant for redundancy because she was  absent from work at a time when redundancies were being considered.  The applicant also contended that at the same time as redundancies in other areas were being discussed, new employees were being engaged to commence work immediately in the applicant’s former department. The applicant contends therefore that part of the reason for the termination of her employment was her absence from work on maternity leave or on account of her sex, pregnancy or family responsibilities. 

The respondent is a distributor and wholesaler of stationery and office products. The majority of its business is conducted by receipt of telephone orders from retail sales outlets.  In recent years the profile of retail sales outlets, the respondent’s major customers, had undergone significant change. The evidence is that the industry profile altered in that there was a greater consolidation of a number of smaller operators. In addition larger volume retailers had entered the market and the respondent’s customer base altered to focus on larger account holders. There is no evidence that the volume of sales altered,  although there is evidence that the amount of clerical and administrative work diminished as a consequence of the changed customer profile and the reorganisation of the manner in which the work was performed at the respondent. This reorganisation also included the installation of a new computer operating system in 1996.

The applicant was employed by the respondent initially as a filing clerk. She was employed on a probationary period of three months, which period was extended for one month. She was appointed to a permanent position as a filing clerk in October 1995.  During the course of her employment she worked in the customer service department, the accounts department and the general office. After working as a filing clerk for approximately twelve months, Ms Treadwell was given the duties of Returns Officer in the Customer Services department. This position required that she deal by telephone with customers,  generally warehouse personnel, in relation to returns of products, whether because they were faulty or for other reasons. The duties involved locating invoices, providing credit invoices, adjusting computer records and liaison with the customer over the telephone.

In June 1996 the applicant advised the respondent that she was pregnant and shortly thereafter advised in writing of her request to take maternity leave to commence in February 1997.  At this time she was working in the Customer Service area as a Returns Officer.  In August 1996 she applied for a position in the accounts area of the respondent.  During the course of the interview she advised that part of the reason for her applying for the position was because she had had a recent bad experience in the returns area with an angry customer. She was not successful in obtaining the accounts position.

The applicant continued working in the Customer Services area as a Returns Officer.  In September 1996 she was offered a temporary position in the accounts area. The purpose of the temporary position was to overcome a backlog of accounts and invoices which had been building for some time. The task in the job was to enter details of invoices and cross check invoice and account information. The applicant commenced working in this area in September. It was understood that the position was to be a temporary one. Ms Treadwell’s evidence was that she assumed she would return to her previous position in Customer Service at the completion of the task. She initially understood that this would be shortly after the Christmas break. In contrast however, the evidence of Mrs Helen Kambouris, the supervisor in the Customer Service Area, was that she had no expectation that the applicant would be returning to that area even though there had been no discussion as to this fact with the applicant. Mrs Kambouris’ evidence was that once the applicant had left the area she had no further responsibility for her and that consequently there was no requirement on her to find the applicant a position in the Customer Service area when she returned from maternity leave.  The evidence of the respondent’s managing director, Mr Seers, as to this matter was unclear.  The evidence of the respondent’s manager, Mr Bottomer, was that at the time the applicant was transferred to the temporary position, her job in the Customer Service department would no longer be available and that this was made clear to the applicant. The evidence was that at the time the temporary position was offered, and at the time of the first interview, he was aware that the applicant was pregnant and would be taking maternity leave in February 1997. He agreed with counsel for the applicant’s proposition that, having regard to the date of the maternity leave, the timing of the temporary position was good and that the temporary position would take the applicant through to the time she went on maternity leave.

I accept the applicant’s evidence as to the circumstances of her transfer.  I do not accept that she was conscious or ought to have been conscious of the fact that being transferred into the temporary position resulted in her position in the Customer Service area disappearing. In general I preferred the applicant’s evidence as to events to that of the respondent’s witnesses. I found her to be a frank and forthcoming witness, who directed herself to the questions asked and made concessions as to matters, such as her experience, which were against her interest. In contrast I found Mr Bottomer and Mr Seers to be uncertain as to matters of detail and there was some conflict between their evidence as to the applicant’s experience and duties and the work being performed by the new employees, and that of Mrs Kambouris.

In January 1997 Ms Case, a former employee of the respondent, commenced employment as a casual employee, engaged to take over responsibility for the applicant’s duties in her absence. Ms Case continued in the employment of the respondent until the week of the trial of this matter. The evidence is that she initially performed the applicant’s tasks in the temporary position and then commenced to undertake a mixture of tasks, including some invoice returns, and general bookkeeping responsibilities. The evidence was that the work associated with the temporary task was completed by end February 1997.  The evidence of Mr Bottomer was that approximately 20 per cent of the work which continued to be performed by Ms Case constituted work similar to returns work which had been previously performed by the applicant. The rest of the work allocated to that employee was work for which the applicant did not have the necessary skills or knowledge.

The applicant was due to commence her maternity leave in February 1997.  In January 1997 she was approached by Mr Bottomer and Mr Seers.  The early commencement of her maternity leave was discussed. Ms Treadwell’s evidence is that she was instructed to commence her maternity leave earlier than she had desired. Her evidence is that it was made clear to her that the respondent expected her to commence the leave early. This was expressed as being as a consequence of concerns the respondent had for the baby and her own health. Ms Treadwell’s evidence was that she understood she had no choice but to commence her leave earlier than she desired and consequently she commenced the maternity leave early, after having made arrangements to facilitate the payment of her annual leave entitlements to cover herself financially for the additional period. The applicant’s evidence as to her state of health at this time was that she was well and was being monitored by her doctor  in her later stage of pregnancy on a weekly basis. There is no evidence to suggest that there is anything exceptional about this level of monitoring of the health of a woman in her third trimester of pregnancy. The doctor’s certificate that she was fit to remain working was understandable as being related to the period between these weekly visits. In light of these matters it does not appear that the reason given by the respondent for requiring the early commencement of the maternity leave is supported by the evidence.

In January 1997 the respondent’s general manager had conducted a review of its efficiency and staffing levels.  Various matters as to staffing were raised in this review and the level of staffing in some departments was under scrutiny. At this time there was an assessment made that some positions were no longer required and that redundancy should be considered. In this correspondence the applicant’s temporary position was identified and two positions in the Customer Service area were also identified as having been vacant and to remain so. The evidence of Mr Seers was that these positions did not include the applicant’s position of Returns Officer, which was an additional ‘vacancy’. The evidence is that despite this memorandum, two positions in the Customer Service area became vacant whilst the applicant was on maternity leave and were filled by the hiring of new employees. The applicant’s returns work, whilst initially being performed by distribution amongst all other customer service staff, was shortly thereafter allocated to one of the new employees to perform as Returns Officer.  The evidence is that this occurred whilst the applicant was on maternity leave, but at the time she had indicated a desire to the respondent to return to work early.  These appointments took place certainly a very short time before the applicant’s employment was terminated in June for redundancy.  The evidence as to the exact dates the new employees commenced is vague and uncertain, none of the respondent’s witnesses being able to assist the court by providing the details of commencement dates from their recollection, and no payroll records being tendered in evidence.

Ms Treadwell’s baby was born in February 1997 and shortly after the birth Ms Treadwell attended at the workplace to introduce her child to her colleagues. At this time she observed that new employees had commenced working for the respondent in the reception area and in her previous permanent area, Customer Service. In April 1997 and again in May 1997, Ms Treadwell advised the respondent, by its manager Mr Bottomer, that she desired to return to work earlier than originally advised and asked whether this would be possible.  Mr Bottomer had in April indicated that he would consider the request. In May, Mr Bottomer advised that there was no work available and that the applicant would not be able to return early from her maternity leave. During this visit the applicant noticed that new employees had commenced working in the Customer Service area and the reception area.  On 2 June1997, a final decision was confirmed by Mr Seers that that the applicant, together with two other full time and some part time employees would be made redundant. The applicant was advised of this decision on 20 June 1997 at the respondent’s premises. The employment terminated immediately with the applicant being paid notice and an amount on account of a redundancy payment. There seems to have been some discrepancy, later corrected,  as to the amount of payment made, but I do not consider this matter of significance in these proceedings.

The question which the court is required to decide is whether the applicant’s sex, pregnancy, family responsibilities or absence on maternity leave was the reason or was included as any part of the reason for the termination of the applicant’s employment. Section 170 CK(2)(f) and (h) of the Act provides:

                Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

                ...

                (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. 

                (g) ...

                (h) absence from work during maternity leave or other parental leave.

Section 170CQ of the Act provides:

                In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:

(a)           it is not necessary for the employee to prove that the termination was for a proscribed reason; but

(b)           it is a defence to the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies).

Section 170CK(2)(f) of the Act is in similar terms to the former s170DF(1)(f). Section 170CQ operates to require the respondent to bear the onus of proving that the reason for termination did not include a matter proscribed by the section. In determining the issue arising from the subsection it is necessary for the court to have regard to the subjective motive of the decision maker. The test is a subjective one and it is the reason of the persons making the decision to terminate the employment which is of relevance in these proceedings; in this case Mr Seers and Mr Bottomer. It is for the respondent to establish on balance that the termination of the employment was not for the reason of or partly for the reason of the applicant’s sex, pregnancy, family responsibilities or absence on maternity leave.  It is clear that a denial of such reason is not always sufficient for the respondent to meet that onus and the court will assess the question by having regard to the entirety of the circumstances surrounding the termination of the employment. See in this regard Johns v Gunns Ltd (1995) 60 IR 258.

In Johns v Gunns there was extensive consideration of the operation of the onus provisions attaching to S170DF of the Industrial Relations Act 1988. Whilst the provision is expressed in slightly different terms, I am satisfied that the approach taken in Johns v Gunns to the interpretation of the onus provision in s170EDA, is relevant for the purposes of a consideration of the operation of s170CQ and s170CK of the Act and that is the approach I have adopted. It is appropriate to extract a large part of that decision.  At pages 267 to 268 his Honour Justice Northrop said:

                Section 170DF(1), however, does impose a prohibition on an employer terminating an employee for specified reasons or for reasons including one of the specified reasons.  The relevant reason here is that contained in s 170DE(1)(a).  On the facts of the present case, there is no doubt that the absences from work of Mr Johns arising from his injuries arising in the source of his employment are temporary  absences from work because of injury, see reg 30D and in particular reg 30D(2).

                The phraseology used in the operative parts of ss 170DC, 170DE and 170DEF is unusual.  The words "an employer must not ..." normally impose a duty on an employer not to do the prohibited act with the result that a breach constitutes a criminal offence.  This is not the case here; see s 170EG.  The phraseology continues with the word "unless".  The use of this word suggests that the words following the "unless" impose an obligation or duty on the employer in the nature of a condition precedent to be complied with by the employer before the employer terminates the employment of an employee.  The obligation or duty is not a true condition precedent since non-compliance does not make the termination illegal, unlawful or non-effective.  The non-compliance is described in the Act as a contravention of a provision of Div 3 of Pt VIA of the Act; see s 170EE which will be considered later in these reasons.  This section is based on the assumption that the termination of the employment is effective and that remedies may be granted for the contravention found on the basis that the termination is effective.

                The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer.  The employer may state a reason but that reason need not be the actual reason nor need it be the only reason.  Parliament has, from time to time, devised procedures to transfer to an employer the onus of proving the reason for termination of employment.  Thus s 5 of the Conciliation and Arbitration Act 1904 (Cth) made it a criminal offence for an employer to dismiss an employee by reason of specified circumstances.  Section 5(4) provided that in proceedings for an offence, if all the relevant facts and circumstances, other than the reason "set out in the charge as being the reason ... of the ... (dismissal) ... are proved, it lies upon the person charged to prove that ... (the dismissal) ... was not activated by that reason ... ".

                In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, those provisions and earlier authorities relating to them were discussed at length and in particular at 266-271.  I set out a passage appearing at 268 which has equal application to cases where s 170DF(1)(a) of the Act applies:

                                "The provisions of s 5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge.  It has been held that a defendant need not prove the reason why he dismissed an employee:  Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439.  The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge.  A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant.  All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge."

                In the same lengthy passage, at 267 reference is made to averment provisions and what was said by Dixon J in R v Hush; Ex parte Devanny (1932) 48 CLR 487.  These views could have equal force in the application of s 170DE(1) and s 170DF(1) of the Act.

                The section now corresponding to s 5 of the Conciliation and Arbitration Act is section 334 of the Act.  The wording is somewhat different but, for relevant purposes, the effect is the same, see Lawrence v Hobart Coaches Pty Ltd, (1994) 1 IRCR 92; 57 IR 218.

                Section 170EDA was inserted into the Act and came into operation on 30 June 1994.  Section 170EDA (1) and (2) commences  "If an application under section 170EA alleges ... ". The section was enacted when the Court Rules contained provisions that an application, being the formal document initiating a claim or application for a remedy under s 170EA(1), had either itself or in the accompanying affidavit, to allege the employer's stated reason for termination.  Since then, from 14 October 1994, under the Court Rules, no allegation of reason for termination is required to be given.  Order 75 describes an application under s 170EA(1) as a "claim" and Form 132 adopts that terminology.  As a result, if a claim for a remedy comes before the Court there is no application containing an allegation of reason for termination.

                Section 170EDA applies with respect to terminations where the employee alleges there are no valid reasons for the termination under s 170DE(1) as well as to reasons, not necessarily the only reason, prohibited under s 170DF(1).  In my opinion, the opening words of s 170EDA(1) are to be construed as meaning that if, upon all of the evidence, the termination is proved, then the employee is entitled to a remedy unless the employer establishes a valid reason or reasons under s 170DE(1).  If established, s 170DE(2) has to be applied.  If this construction is not accepted, the absence of appropriate forms in the Court Rules could defeat the intention of the Parliament.

                For similar reasons, the opening words of s 170EDA(2) are to be given the same meaning. However, a very important result follows.  Under s 170EDA(2), where that subsection is to be applied, the termination is taken to have contravened s 170DF(1) unless the employer proves:

                "(c)          the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or..."

                It is because of this provision that the passage quoted from Heidt is of such importance.  On the facts of this case, on the assumption that s 170EDA(2) applies, it would not be sufficient for the respondent to establish the reasons for dismissal as set out in the affidavit of the respondent and that they constituted valid reasons for termination under s 170DE(1).  The respondent has to establish a negative namely that the reasons for dismissal did not include the reason that Mr Johns was temporarily absent from work because of injury.  A mere denial may not be sufficient.  All the facts and circumstances of the case have to be considered.

                In the present case, having regard to the alleged reason for termination contained in the applicant's affidavit, I am satisfied that s 170EDA(2) applies.  Further, during the course of the case presented on behalf of Mr Johns, it was obvious that Mr Johns was alleging that one of the reasons the respondent terminated him was that he, Mr Johns, had temporary absences from work because of injury.  This, by itself, in my opinion, is sufficient to satisfy the requirements of s 170EDA(2).  These provisions should be considered with respect to a possible amendment to the Court Rules.

                In my opinion, the respondent has not satisfied the onus of proof cast upon it by s 170EDA(2).  The onus is to be satisfied on the civil basis of balance of probabilities.  Normally it would be expected that an employer would give a direct denial to a question of whether a reason for termination was for the reason of temporary absence from work because of injury; compare the express denial in Lawrence.  This was not done in this case, but I do not rely on the absence of an express denial of this reason.

Whilst this is not a proceeding involving any determination as to the validity or fairness of the termination of employment, being as it is strictly confined to the question of prohibited reason arising from s170CK, the evidence as to the respondent’s attempt to consider alternative positions, or the manner in which the redundancy is implemented may be relevant to put the termination into context. Thus the circumstances in which the applicant was transferred from her permanent position to a temporary position, required to commence maternity leave earlier than she had planned, and then had no job available to her when she sought to return despite there having been new staff appointed during the course of her maternity leave, some of whom performed tasks which were within the competency and experience of the applicant, are matters which place the conduct of the respondent and the denial of the respondent into a context.

As earlier discussed the applicant was replaced in her position by a new employee, Ms Case, who continued to perform the applicant’s duties in the temporary position.  After those duties had been completed she continued in the employment performing other duties, including some processing of credit claims from the warehouse, which was similar work to that previously performed by the applicant in her role as Returns Officer. Notwithstanding the termination of the applicant’s employment for redundancy in June 1997 some two months prior to the expiration of the maternity leave, the employee initially engaged to replace her was retained in the respondent’s employ until the week of the trial of this matter.

Further, it is apparent that additional employees were engaged to perform work which the applicant had previously performed. During the period in which Ms Treadwell was absent on maternity leave the respondent employed additional staff in its customer services area.  The evidence of Mr Seers was that the applicant would not have been suitable for a customer services role as she did not have the experience required.  His evidence was that the employees in that area needed prior experience in customer service, experience in speaking to customers on the telephone, of using a computer system and of being able to talk about the products.  His evidence was that Ms Treadwell did not have this experience. Ms Treadwell’s evidence is that she had experience in all of these areas whilst working for the respondent, although she conceded that some of these duties she had performed for a limited time. Mr Seers’ evidence was also that the returns duties previously being performed by the applicant were now being performed by two of the existing Customer Service employees, each dedicating approximately 40 per cent of their time approximately to the task. There is an inconsistency in this evidence with that of Mrs Kambouris whose evidence was that one of the new employees engaged during the period of Ms Treadwell’s maternity leave was actually performing the work the applicant had previously undertaken as a Returns Officer and was engaged upon that task full time. Whilst the evidence suggests that the applicant was the least experienced employee in the Customer Service area, it is clear she had a familiarity with and understanding of the products of the respondent. The respondent’s evidence of lack of experience in the general customer service role does not explain the basis upon which the applicant was not reallocated her tasks as Returns Officer in the Customer Service area when the work and the vacant position was available.

It appears that the selection of the applicant for redundancy was based upon the fact that the position she occupied immediately prior to going on maternity leave was no longer required. However it is clear that this position to which the applicant was transferred shortly before her maternity leave commenced was always to be a temporary position. After she moved from the sales area, her work in relation to returned goods continued to be performed by other employees and the work was subsequently performed by one employee allocated the task. No explanation was given as to why the applicant’s position as returns officer was not able to be made available to her at the conclusion of the maternity leave period. The transfer of the applicant to the temporary position shortly prior to her commencement of maternity leave also resulted in her continued employment being vulnerable. 

Mr Seers in his evidence stated that the reason why the employment was terminated without allowing the maternity leave period to conclude was so that the applicant had the rest of her maternity leave to look for a job.  Whilst Mr Seers characterises this conduct as motivated by a desire to progress the interests of the applicant, and that is the manner in which he gave this evidence,  the fact is that in deciding to terminate the applicant’s employment at the time he did, Mr Seers on his own evidence had regard to the fact that the applicant was on maternity leave. The motive for the taking into account of the proscribed matter is not important in the operation of s170CK. As a result of this evidence, I am not satisfied that part of the reason for the termination of the employment of the applicant at the time that it was terminated did not include the applicant’s family responsibilities and her absence on maternity leave, reasons which are proscribed matters in  s170CK(2)(f) and (h) of the Act.However this evidence is not the only basis upon which I have concluded that the respondent has not satisfied the onus of proving that the termination did not include in part the reason that the applicant was absent on maternity leave.

The following are matters of evidence which are significant in the context of the respondent’s denial. First, that the applicant’s work as a Returns Officer continued to be performed beyond the date of her termination and was either performed by one or a number of employees and continues to be performed by one employee at the date of trial. Second, that additional persons were hired to work in the workplace and in the areas in which the applicant had experience during the period in which the applicant was absent on maternity leave and after the termination of her employment. Finally I am not satisfied that the applicant was,  as the respondent contended, unsuitable for employment in any of the positions which became vacant during her maternity leave.  Rather I have concluded that it was her lack of immediate availability to meet the requirements of the respondent in filling a vacant position which was the determining factor as to suitability. The evidence satisfies me that the absence of the applicant on maternity leave was part of the reason for the applicant’s selection for redundancy and the reason why the applicant was not appointed to or transferred to various of the vacant positions which became available during that time. The applicant’s absence upon maternity leave resulted in her not being considered for these positions. Consequently the applicant became an employee without a position at a time when the respondent was identifying persons for redundancy.

One issue arising in these proceedings was the mechanism by which the applicant became entitled to maternity leave and a consideration of the nature of the entitlement. To some extent the entitlement to maternity leave is not crucial to the decision in this case, however the basis upon which the applicant was able to return to work is of some significance.  The respondent contends that the applicant’s entitlement to return from maternity leave is subject to there being a position available for her and it follows from this contention that the respondent contends that pursuant to the State Award provisions, adopted by the contract, it has no obligation to ensure there is a position in circumstances where there is a reorganisation or restructuring of the business. I do not accept that this is the correct construction of the provision in the State Award. A construction such as this would render meaningless the maternity leave provisions in the awards referred to as it would result in there being no obligation to ensure that any position was kept available for the return of the absent employee. I accept the submission on behalf of the applicant that to the extent that the maternity leave provisions of the Federal legislation provide for minimum standards in maternity leave they apply to the applicant and are operative upon the respondent. However in this case having regard to my conclusions on the facts, it was unnecessary to decide this proceeding by reference to the differences between the maternity leave provisions in the contract and in the Act.  This is because I have decided that there was a position available to the applicant at the time she sought to return early from maternity leave, in both April and May, 1997 and at the time she would have been entitled to return at end August 1997 and that the position, despite it having been filled by a newly engaged employee, was that of Returns Officer in the Customer Services Area.

For these reasons the respondent has not established, as it is required to do pursuant to s170CQ of the Act that the termination of the applicant’s employment did not include as part of the reason, matters prohibited by s170CK of the Act.  The respondent has contravened s170CK(f) and (h) of the Act. I turn now to consider the question of remedy.

The applicant is unemployed and has been unable to obtain alternative employment. The applicant seeks an order for reinstatement and an order for remuneration lost as a consequence of the termination of the employment. In determining the question of remedy in cases such as these, it is appropriate to consider the circumstances of the employment and its termination.  In exercising the discretion provided for by s170CR, it is relevant to consider factors such as the practical effect of an order for reinstatement. Factors such as whether the respondent continues to trade and whether the applicant seeks an order for reinstatement are matters which have been considered as relevant in exercising the discretion previously provided for under s 5 of the former Australian Conciliation and Arbitration Act 1904. See in this regard Bowling v GMH (1980-81) 33 ALR 297 at page 303. As discussed in Johns v Gunns (supra) factors such as the respondent having employed another person in the position of the applicant  are not decisive. 

I have decided that an appropriate approach to the operation of s170CR is as expressed in Bowling at page 305 where the court stated:  “ The appellant desires to be reinstated in his old or in a similar position. Prima facie therefore the direction should be given”. This approach is consistent with Association of Professional Engineers, Scientists and Managers Australia v Deniliquin Council (No. 2) (1995) 63 IR 471-2 and Kozelj v Kellog (Aust) Pty Ltd (Wilcox CJ, 26 July 1996), decisions of the Industrial Relations Court referred to by Counsel for the applicant in written submissions.

In this case, pursuant to 170CR(1)(b) of the Act, I propose to order reinstatement of the applicant to the position held prior to the termination of the employment or to another position on no less favourable terms and conditions. The date for reinstatement will be seven days from the date of this decision. S170CR is a broad provision which provides for orders beyond those which were provided for by the operation of s170EE of the former Act. Whilst there is no express reference in s170CR to a power to order payment of remuneration lost as a result of a contravention of s170CK, I am satisfied that such an order is capable of being made pursuant to subsection 170CR(1)(d) of the Act. An order for remuneration lost in the period between the date at which the applicant was to resume her employment after the expiration of the maternity leave period, which I am satisfied was 1 August 1997, and the date of reinstatement will be made. From the amount of remuneration to be paid, an amount is to be deducted on account of all payments made to the applicant by the respondent upon termination of employment, save for annual leave entitlements. An order providing for continuity of service will also be made.  Neither party has had opportunity since this decision to be heard in relation to the effective date for reinstatement. Liberty to apply prior to 22 December 1997 is reserved to the parties for this purpose.

The orders of the Court will be:

1.         That the respondent reinstate the applicant to the position held prior to the termination of the employment or to another position on terms and conditions no less favourable.

2.         That the date for the reinstatement be seven days from the date of this decision.

3.         That the employment of the applicant by the respondent be treated for all purposes as having been continuous between the date of termination and the date of reinstatement.

4.         That the respondent pay to the applicant within twenty one days from the date of this order remuneration lost by the applicant as a result of the termination from 1 August, 1997 to the date of reinstatement. From this amount shall be deducted an amount representing all payments made by the respondent to the applicant on account of her termination save for annual leave entitlements.

5.         The parties have leave to apply to the court on twenty four hours notice in the event that agreement cannot be reached in relation to the calculation of the amount of lost remuneration ordered pursuant to order 4 herein.

6.         The parties have leave to apply prior to Monday 22 December 1997 with respect to the period stated in order 2 herein.

Associate:

Dated:              16  December  1997