FEDERAL COURT OF AUSTRALIA

Laz v Downer Group Ltd [2000] FCA 1390

INDUSTRIAL LAW – termination of employment – whether termination for proscribed reasons – application under s 170CK(2)(f) of the Workplace Relations Act 1996 (Cth) – whether employer bears onus of proving that termination was not for proscribed reason – whether applicant’s pregnancy was a reason for the termination of her employment – whether applicant’s family responsibilities were a reason for the termination of her employment – inherent requirements of employee’s position – whether appropriate to order reinstatement – whether Court has power to order back pay – imposition of penalty

Workplace Relations Act 1996 (Cth) s 170CK

Qantas Airways Ltd v Christie (1998) 152 ALR 365, referred to

Stojanovic v The Commonwealth Club Ltd (Moore J, IRCA unreported, 8 December 1995), distinguished

Kelly v Construction, Forestry, Mining & Energy Union (No 3) (1995) 63 IR 119, cited

Boyce v William and Suzanne Leggett T/A Baker Bill's Fine Pies (Finn J, Federal Court of Australia, unreported, 12 December 1997), cited

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, cited

Wannberg v Alloa Holdings Pty Ltd (Industrial Relations Court of Australia, unreported, 31 July 1996), cited

Ettridge v TransAdelaide (1998) 80 IR 422, cited

Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186, referred to

Sherman v Peabody Coal Ltd (1998) 88 IR 408, referred to

Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240, referred to

Printing and Kindred Industries Union v Vista Paper Products Pty Ltd (1992) 45 IR 268, referred to

Morris v Gestetner Ltd (1973) ICR 587, referred to

Barbara Mines Ltd [1998] FCA 621, distinguished

LOUISE LAZ v DOWNER GROUP LTD

N 960 OF 1999

MOORE J

11 OCTOBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.      The proceedings be adjourned until 9.30 am on 20 October 2000 to enable the parties to bring in short minutes of order to give effect to these reasons.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application by Ms Louise Laz (“the applicant”) alleging her employment with Downer Group Ltd (“Downer”) was terminated in contravention of provisions of the Workplace Relations Act 1996 (Cth) (“the Act”).  The relief sought is an order for reinstatement, an order requiring the payment of a sum equivalent to wages lost since the employment was terminated, compensation and the imposition of a penalty.  The specific contravention which is alleged is that her employment was terminated for reasons including her family responsibilities and her pregnancy: see s 170CK(2)(f) of the Act.

The background

2                     The following is an overview of events leading to these proceedings and reflects findings of fact on matters which were not contentious.  I will later deal with contentious factual issues and some matters which require greater attention.

3                     The applicant commenced her employment with Downer on 3 October 1997 as personal assistant to the managing director of Downer, Mr Stephen Gillies.  For the preceding four years the applicant had been the personal assistant of the chairman of the Terrace Tower Group of companies and, before that, had held a number of secretarial or executive assistant positions.  The applicant’s engagement by Downer involved an initial assessment by Ms Caroline Squire who was the manager of a recruitment firm, Strategic Recruitment Services who interviewed the applicant on 22 September 1997.  She was later interviewed by Mr Gillies.  By letter dated 2 October 1997 the applicant was offered the position.  That letter also contained proposed conditions of employment.  It invited the applicant to signify her acceptance of the conditions by signing the letter.  She did.  The letter read:

Dear Louise

We have pleasure in offering you the position of “Personal Assistant” reporting to the Group Managing Director. As discussed, your role will involve a wide range of duties assisting the smooth running of the Corporate Office with direct responsibility to the Managing Director.

Please kindly confirm your acceptance of this offer by signing and returning to the Company a copy of this letter. I look forward to a challenging and mutually satisfactory period of your employment, as we develop and expand our business.

Yours sincerely

Downer Group Limited

(signed)

Stephen J Gillies

Group Managing Director

I accept the above terms and conditions.

(signed)

Louise Laz

4                     It can be seen that the agreed hours were 8:30am to 5:30pm with a proviso which is of some importance in these proceedings at least as it was applied or implemented.  At the time the applicant commenced employment with Downer, she had a son who was 18 months old.  Her husband then had a job which involved giving evening lectures two nights per week.  At that time, and for the period of the applicant's employment with Downer, the applicant's son attended the Leichhardt Family Day Care Centre.  The contracted hours with the Centre were 8:30am to 6:30pm.  The applicant’s evidence was that she left work at 6:00pm in order to pick up her son on the evenings her husband worked from the beginning of her employment with Downer.

5                     Consistent with the terms of the letter of 2 October 1997, the applicant served a period of probation.  In a letter dated 23 April 1998 to the applicant, Mr Gillies said:

Employment-Probation Period

Please accept this letter as confirmation that your performance as my Personal Assistance (sic) has been more than satisfactory, consequently I regard your employment status as permanent.

As you are aware, Downer will shortly become a listed company, and the demands placed on you may been more than they have been to date.  Therefore, it is my intention to review your salary by 30 June 1998 to better reflect the responsibilities imposed by this process.

6                     A salary review did take place and on 26 June 1998 Mr Gillies wrote to the applicant informing her that her salary had been increased by $7000 per annum bringing her total remuneration to $60,000 per annum.  In December 1998 and February 1999 the applicant was offered, and accepted, share options in Downer under an executive options scheme.  In April 1999 the applicant travelled with Mr Gillies to attend a board meeting in Hong Kong.  It was common ground that when in Hong Kong they discussed the applicant's performance.  In issue was both whether this was the first such discussion and what was said. Between 30 April 1999 and 11 May 1999 the applicant was absent from work on annual leave.  During that time Mr Gillies advertised for a new personal assistant and interviewed applicants.  By letter dated 12 June 1999, Mr Gillies wrote to Ms Christine Patsouris offering her the position of his personal assistant on essentially the same terms as had been offered to the applicant though the hours were identified as “8:30am to 5:30-6:00pm”.

7                     On 15 June 1999 the applicant informed Mr Gillies that she was pregnant and was proposing to take maternity leave later that year, from December 1999 to July 2000.  On that day the applicant became aware that Mr Gillies had been interviewing people for her position when she opened a thank you letter from an unsuccessful applicant.  What occurred in the following two weeks is discussed later.  On 28 June 1999 Mr Gillies wrote to the applicant in the following terms:

Dear Louise,

I have thought about your notification of intention to take Maternity Leave commencing in December.  As with all employees of this company, you have the right, other things being equal, to be re-assigned to your job or a job no less favourable to you upon your return from Maternity Leave.

My difficulty is not related to Maternity Leave.  I have spoken to you on a number of occasions, most recently in Hong Kong (13th April) and at the end of April prior to your vacation about your level of performance, specifically general attitude, confidentiality, filing and preparedness to work beyond 5.30 p.m. I have made it clear to you that I require an improvement in your performance, where recently I have even gone to the extent of exploring the availability of suitable replacements.

In view of our discussions over the past week and half I suggest we agree July 2nd as a mutually agreeable date for you to wrap up your affairs with Downer Group.  On satisfactory completion of your duties the company will offer five months severance being two months more than your contract entitlement provides.

The applicant finished working for Downer on 2 July 1999.

The evidence in detail

8                     I now consider in more detail evidence that was either contentious, of particular significance or both.

·        The engagement of the applicant

9                                 Evidence was given by Ms Squire about her initial interviews with the applicant.  Ms Squire said she had discussed with Mr Gillies his requirements (concerning a personal assistant) on several occasions.  He indicated he needed someone who could work outside normal business hours.  On each of three occasions Ms Squire interviewed the applicant she told her of this requirement and that the position required someone who could work long hours outside normal business hours.  Ms Squire's evidence was that the applicant said, in response, words to the following effect:

First thing in the morning is not good for me, but I’m certainly prepared to work until 6 pm or 6.30 pm routinely.  If I needed to work past 7.30 pm on the nights my husband is lecturing at TAFE, I'll have to arrange for a babysitter.

One interview took place on 22 September 1997.  In a file note, Ms Squire recorded:

….  Not interested in an early start of 8 or 8 30 am but happy to work regularly till 6-6 30 pm but would need notice for babysitters on the nights when Peter has evening lectures.

In cross-examination Ms Squire agreed with a proposition put her that the applicant had told her that if she was required to work back (past 6.30 pm) on the nights on which her husband lectured, she required notice so that she could arrange for babysitters because her husband picked up the child from daycare.  Ms Squire also said that the applicant told her she could work regularly to 6 or 6.30 pm but two nights a week she would need notice if she was to work after that.  Ms Squire said she discussed these matters with Mr Gillies who expressed his concern about the applicant having an 18 months old baby and they discussed whether the applicant's family responsibilities in relation to the baby would interfere with her ability to undertake the job.

10                  The applicant's evidence was that she told Ms Squire she needed to be able to leave work by 6.00 pm on two or three days per week.  The applicant also gave evidence about an interview with Mr Gillies on 23 September 1997.  Her evidence was that Mr Gillies indicated the office was always very busy and they were then engaged in a particular project which would involve everyone working longer hours.  Mr Gillies indicated the person he needed would be working outside normal hours.  The applicant's evidence was that she responded by saying this was not a problem though she did need to leave by 6.00 pm two or three nights a week to collect her son.  Mr Gillies replied by saying “that should be workable”.  Mr Gillies appeared to deny, in an affidavit sworn 3 May 2000, that there had been any discussion about the applicant leaving by 6.00 pm or at least anything said that might have constituted an intimation by the applicant that this would be a condition of her accepting the position.  Mr Gillies did, however, accept in cross-examination that in this interview the applicant told him that her husband was working three nights a week.  That, he said, occurred in the context of the applicant indicating that between herself and her husband, the child minder and friends, they would ensure that arrangement would be there to care for the child after hours.

11                  I am satisfied that the evidence of Ms Squire and the applicant is to be preferred to that of Mr Gillies to the extent that they are inconsistent.  As is often the case, a contemporaneous note (Ms Squire’s file note) probably provides the most reliable evidence, at least as a starting point, of what occurred particularly when Ms Squire would have had no interest in doing anything other than recording in the note, in a summary way, what had been said.  I am satisfied Ms Squire discussed, initially with the applicant, the applicant's need to be able to care for her young child (on the days her husband lectured) or to be given notice of any work demands that might require other arrangements to be put in place for the child be picked up or otherwise cared for by someone else.  I accept that the evidence of Ms Squire does not deal directly with any statement by the applicant about picking up the child.  Rather it was directed to the care of the child during the evenings the husband lectured.  However I doubt that this is a material matter.  The clear import of what the applicant told Ms Squire, even on Ms Squire's account, was that the applicant would have to leave in the late afternoon to care for her child unless she was given prior notice.  Whether the need to leave at this time was to enable the applicant first to pick up the child or care for the child after it had been picked up by the husband would probably have been a matter of limited moment to Ms Squire.  Ms Squire was obviously representing the interests of Downer and, from the employer’s perspective, the significant aspect of what the applicant was telling her (and that which she was likely to note and now recall) was that there were limits on when the applicant could work (without prior notice) on two evenings a week when her husband worked.  Ms Squire’s evidence on one matter was not consistent in that she had identified 6 or 6.30 pm and 7.30 pm as the time beyond which the applicant said she could not work on days her husband lectured.  Her file note is more consistent with the former times rather than the latter time having been mentioned given that the part of the note concerning the applicant being given notice appears to be a qualification on her intimation that she could regularly work until 6.00 pm or 6.30 pm.  That is, the applicant was indicating she might not be able to work until those times on the days her husband lectured unless she was given notice beforehand.  Indeed, the file note is not inconsistent with the evidence of the applicant who said that she identified that time as 6.00 pm. Given that Ms Squire accepts the matter was discussed it is probable that the applicant identified the actual time, namely 6.00 pm.  As the applicant was not seeking to hide this potential problem if she was to take up the position, there would have been no particular reason for her to understate the scope of the potential problem.

12                  It is probable that Ms Squire then discussed these matters with Mr Gillies before he interviewed the applicant on 23 September 1997.  It is also probable that, armed with the information provided by Ms Squire, Mr Gillies discussed the same matters with the applicant who repeated what she had told Ms Squire.  I am satisfied that at the time the applicant was engaged by Downer, Mr Gillies was made aware that if the applicant was required to work beyond 6.00 pm on the days on which her husband lectured, she had to be given notice so that other arrangements could be made to care for the child and probably also to pick up the child.  It should then have been clear to Mr Gillies that unless notice was given, the applicant would leave work by 6.00 pm (or, at the very least, could not work as long as necessary to complete work he wanted done that day) to pick up and later care for her young child.  The contractual term concerning hours in the letter of 2 October 1997 has to be viewed, in my opinion, in the context of the understanding of both the applicant and Mr Gillies about the need for notice if the applicant was to work back on the days her husband lectured.

·        The pattern of work

13                  The applicant gave evidence that from the time she commenced employment with Downer she was leaving at 6.00 pm to pick up her child which, I infer, was on the days her husband gave evening lectures.  At other points in her evidence there was a blurring of whether she would leave at 5.30 pm or 6 .00 pm or “about” this time.  However I do not think anything turns on when, precisely, she left to pick up her child as Mr Gillies’s evidence was not at odds with the applicant's evidence.  His evidence was that from the outset of her employment on 3 October 1997, he was aware that the applicant was, on occasions, leaving at 5.30 pm or thereabouts and was picking up her son.  Mr Gillies gave evidence that in mid or late 1998 (though he also suggested it may have been in 1999) he agreed to a “routine” involving “setting aside” two days a week for the applicant to pick up her son.  His evidence was that the arrangement subsequently changed and the two days became more than two days. It became a regular occurrence for the applicant's husband to ring at 5 pm or 5.15 pm to confirm that the applicant would be home on time.  This would result in the applicant leaving somewhere between 5.30 pm and 6.00 pm.  This version of events (the existence of an agreed “routine” and the phone calls from the applicant's husband) was not raised specifically with the applicant during cross-examination.  However it appeared to be common ground that these matters were the subject of discussions, at least in generalities, between the applicant and Mr Gillies by, at the latest, June 1999.  It is probable that the applicant’s husband did ring on occasions which may have caused Mr Gillies some measure of discomfort in the sense that he perceived demands were being made of the applicant which were inconsistent with his immediate expectations concerning work the applicant had to do.

·        Deficiencies in the applicant’s work

14                  It was common ground that in April 1999 Mr Gillies discussed with the applicant performance and raised questions concerning her filing, maintaining confidentiality and hours of work and availability.  There was an issue about whether these matters had been discussed on earlier occasions.  Whether they had been or not is probably immaterial as it is palpably clear from the whole of the evidence that the fundamental concern of Mr Gillies was the unavailability of the applicant to work as and when required into the early evening to meet demands which might arise on any given day though I accept that, by at the latest April 1999, he was also concerned about the quality of the applicant's filing and her maintaining confidentiality.  Mr Gillies was not prepared to accept that it was necessary for the applicant to receive some notice that she would be required to work beyond 6.00 pm on a day on which she had to pick up and care for her son because her husband was lecturing.  There can be no doubt, in my opinion, that Mr Gillies was, principally for this reason, dissatisfied with the applicant as his personal assistant and took steps to replace her when she was on leave and prior to any intimation that she was pregnant.

·        The termination of the applicant's employment

15                  I have already referred, in a summary way, to events leading to the applicant finishing working with Downer on 2 July 1999.  On 15 June 1999 the applicant wrote to Mr Gillies informing him that she was expecting a baby in mid-December and would be applying for parental leave from early December 1999 to July 2000.  When the applicant wrote the memorandum to Mr Gillies, she was not aware that he was in the process of replacing her as his personal assistant.  The applicant gave evidence that before she wrote the memorandum she informed Mr Gillies orally of her pregnancy and her desire to take maternity leave for the period later specified in the note. Her evidence was that Mr Gillies responded by saying: “I envisaged this would happen”.  Mr Gillies did not put in issue that such a conversation occurred but said his response was: “I wondered if you were going to have another child.  It's not a surprise to me”.  Nothing turns, in my opinion, on precisely how Mr Gillies responded as the substance of both versions is the same.  That is, Mr Gillies was conscious of the possibility that the applicant might have another child.

16                  On the day that the applicant gave the memorandum to Mr Gillies (and after doing so), the applicant opened an envelope containing a letter from an unsuccessful applicant for the position of Mr Gillies' personal assistant (that is, from a person who had applied for the position when Mr Gillies advertised during the period the applicant had been on leave).  In this way the applicant became aware that Mr Gillies had taken steps to employ a “personal assistant”.  The applicant then spoke to Mr Gillies about the matter.  There was an issue between the applicant and Mr Gillies about how long after receiving the memorandum this conversation took place.  There was also an issue about what was said.  Nothing turns on precisely when the conversation took place.  The two accounts of the conversation, as to the substance of what was said, were not materially different except in relation to one matter.  On the applicant's account, which I accept, Mr Gillies indicated during the conversation that he did not appreciate her coming into the office that morning and telling him she was taking maternity leave and coming back six months later.  According to the applicant she responded by saying that was her right which led Mr Gillies to say he had a right to terminate her contract.  The applicant made a note of this conversation the following day which accorded with the version she gave in evidence.  While she would then have had an obvious interest in the recording of any discussions that might bear upon her legal rights, it is improbable, in my opinion, that the note she made was deliberately false.  It is also improbable that her recollection of what had been said had diminished by the time the note was written.  In any event, her version of the conversation on this point is inherently plausible.  I say that because though Mr Gillies struck me as a composed and measured man, he was, at the time, being confronted by his personal assistant (with whom he had worked closely for nearly two years) who then either knew or suspected she was being replaced by him but had not been told.  In those circumstances it is not surprising that he acted with what was really a lack of composure (perhaps through embarrassment) by referring critically to the applicant's request for maternity leave made earlier that day.

17                  Still later that day (though the evidence also suggests that this conversation may have occurred on 16 and not 15 June 1999) the applicant and Mr Gillies had another conversation about her future.  There was again a difference between them about what was said.  This conversation was also the subject of a file note prepared by the applicant the following day (or if occurred on 16 June 1999, the same day).  I accept her account of what was said.  Of some significance, at least for the case put by Downer, the applicant raised with Mr Gillies the prospect of her being made redundant (voluntarily) on the basis of her position being restructured.  Mr Gillies did not dispute that during this conversation the applicant said they had reached a stalemate on the matter of working hours.

18                  It was common ground that some days after these discussions on 15 (and possibly 16) June 1999, the applicant and Mr Gillies again discussed in one or a number of conversations, the applicant's future with Downer.  Again there was a divergence in the accounts of what was said and when, though again these conversations were the subject of a file note made by the applicant.  I accept the applicant's version of these conversations.  On 22 June 1999 the applicant and Mr Gillies discussed her taking up another role in the office.  She indicated she would consider an appropriate role if they could not agree on a payout figure.  The applicant proposed, I infer, the termination of her employment (as a redundancy) on the basis that she would receive a reference, staff would be advised of the redundancy, she would retain an entitlement to share options and would receive a payout of eight months salary comprising five months salary for the period she would have worked until the birth of her baby and three months salary in lieu of the notice as contemplated by her contract.  Mr Gillies indicated he would come back to her about this proposal.  On the same day Mr Gillies received written advice from a firm of solicitors, Phillips Fox, sent by facsimile, concerning what might be an appropriate negotiated payout figure (one month's pay more than her notice entitlement) and also enclosing a draft letter to be sent to the applicant intended, it appears, to avoid any suggestion that the request for maternity leave was a matter of concern (curiously the facsimile and the draft letter were dated 16 June 1999).  This letter, modified in certain respects, became the termination letter set out in para 7 above.

19                  The facsimile was delivered by the applicant to Mr Gillies later on 22 June 1999.  The applicant then took issue with the draft letter insofar as it purported to record conversations she had earlier had with Mr Gillies.  There was a discussion about the hours the applicant was prepared to work and the phone contact the applicant had in the afternoon with her husband.  There was also a discussion about the suggestion that the applicant be made redundant.  Mr Gillies indicated he would have to check on what the legal “obligations” of redundancy were and that he was not then offering a redundancy.

20                  On Friday 25 June 1999 the applicant and Mr Gillies again discussed her future.  He indicated that making the applicant redundant was not an option for Downer but offered her five months severance pay.  He invited her to nominate a date for her departure.  The applicant asked Mr Gillies to prepare something in writing setting out the basis for the dismissal and payout details.  Mr Gillies did so that weekend and provided her with a hand written version of the termination letter on Monday 28 June 1999.  They discussed the letter and Mr Gillies invited her to agree to its contents.  The applicant indicated she did not agree with the letter and did not accept it though she also indicated she did not see much point in debating the matter further.  She indicated she wanted to leave on Friday 2 July 1999 as the stress was keeping her awake at night.  The applicant then typed the letter and Mr Gillies signed it.  They then discussed what should be done with the letter and the applicant requested it be placed on her personnel file.

Was the employment terminated by the employer?

21                  Contravention of s 170CK arises when an employer terminates the employment of an employee for a reason (or for reasons including a reason) which is proscribed.  Counsel for Downer submitted that it had not terminated the applicant's employment.  Section 170CK was introduced into the Act in 1996 by amendments made by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth).  Before those amendments, the Act contained a legislative scheme (found in Division 3 of Part VIA) which prohibited the termination of an employee's employment in specified circumstances or on specified grounds.  The scheme enabled an employee to seek a remedy in the Industrial Relations Court of Australia (“IRCA”) if there had been a termination in contravention of the Act as it then stood.  The scheme was first introduced by the Industrial Relations Reform Act 1993, effective (for present purposes) from 30 March 1994.  Between then and 1996 the scheme was varied on several occasions, but its essential features did not alter.  One was that the prohibition concerned the termination of “employment”.  A body of jurisprudence developed in IRCA to the effect that the prohibition related to the termination of the employment relationship rather than the termination of a contract of employment (based on the explicit legislative relationship between Division 3 and the Convention concerning Termination of Employment at the Initiative of the Employer, 1982 (“the Convention”)): see Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 140 ALR 99 but compare Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211.  In addition the scheme concerned termination at the initiative of the employer which could arise when the final operative act terminating the employment relationship was an act of the employer: see eg Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 and see also Qantas Airways Ltd v Christie (1998) 152 ALR 365.

22                  Though s 170CK is found in a different statutory scheme, it remains the position that for the purposes of the relevant Division, “termination” or “termination of employment” are defined to mean “termination of employment at the initiative of the employer”: see s 170CD(1).  It also remains the position that, inter alia, the Division is intended to give effect to the Convention: see s 170CA (1) (e), though additionally is intended to give effect to the Convention concerning Discrimination in respect of Employment and Occupation and the Convention concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers where Family Responsibilities (“Family Responsibilities Convention”): see s 170CK(1)(a) and (b).  It is likely that in enacting the present legislative scheme, Parliament did not intend that the expression “termination of employment at the initiative of the employer” was to have a meaning that differed from the meaning it had under the earlier legislative scheme.  However even if it does not have that meaning and the expression concerns the termination of contract employment, I am satisfied that the employment of the applicant was terminated by Downer.  It is clear that the applicant's employment as the personal assistant to the managing director was terminated by Mr Gillies.  In addition, the applicant's employment relationship with Downer was terminated by the writing and signing of the termination letter of 28 June 1999 by Mr Gillies.  It is true that before that letter was written, it had been the applicant who had raised the question of being made redundant and it is also true that the applicant had been offered other employment with Downer (though there was a dispute as to how specific the offer was).  Nonetheless it was the letter, which the applicant did not accept in the sense of agree to, that brought the employment to an end.  I am satisfied that the applicant's employment was terminated by Downer.

Was the employment terminated for a proscribed reason?

23                  Several submissions were made concerning the construction and operation of ss 170CK and 170CQ.  The applicable parts of the former section provide:

(2) 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:

(a)   …

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

(g)   …

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

(3) Subsection (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned.

Section 170CQ 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) is not necessary for the employee to prove that the termination was for a proscribed reason; but

(b) it is a defence in 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 subsection170CK(3) or (4) applies)

24                  It can be seen that s 170CK operates when the reason for termination is a proscribed reason or the reasons include a proscribed reason.  It can also be seen that s 170CQ appears to affect the onus of proof though a submission was made by counsel for Downer, as I understood it, that the section did not have this effect.  Accordingly it is necessary to consider how this latter section is intended to operate.

·        The proper construction of s 170CQ

25                  The submission made on behalf of Downer was that though s 170CQ absolved the employee from proving the termination was for a proscribed reason, the Court nonetheless had to reach, by reference to the evidence, a state of positive satisfaction that the termination was for such reason (or included such a reason).  No authorities were cited in support of this submission.  I discussed my understanding of provisions such as s 170CQ in Stojanovic v The Commonwealth Club Ltd (IRCA unreported, 8 December 1995) (though the section in question, s 170EDA(2), was expressed differently and made more clear the consequences of the employer not discharging the onus the section imposed) and in Kelly v Construction, Forestry, Mining & Energy Union (No 3) (1995) 63 IR 119 at 126-130 (though again the section was differently worded (but substantially the same in substance) and arose in a different statutory context): see also Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd (2000) FCA 441 and Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67 and Johns v Gunns Ltd (1995) 60 IR 258.

26                  The only authority of which I am aware which deals specifically with the operation of s 170CQ is the judgment of Finn J in Boyce v William and Suzanne Leggett T/A Baker Bill's Fine Pies (Federal Court of Australia, unreported, 12 December 1997).  In that matter the applicant alleged that her employment had been terminated because of her pregnancy in contravention of s 170CK(2)(f).  His Honour said:

It is rightly accepted that in consequence of her (the applicant) raising a s 170CK ground in this proceeding, she is not obliged to prove that the termination was for a proscribed reason.  Rather it is a defence if the respondent proves that the termination was for a reason or reasons that do not include a proscribed reason: the Act s 170CQ

 In my opinion an applicant alleging termination in contravention of s 170CK(2) will succeed in the application unless the employer establishes a defence by proving that the alleged reason was not the reason or one of the reasons for the termination. Perhaps it can be put in terms that though the applicant must prove on the balance of probabilities each element of the contravention, s 170CQ enables the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise: see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 and 501 where Wilcox and Cooper JJ refer to R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507. The success of the application does not depend on the Court being satisfied, other than by reference to the allegation of the applicant, that the termination was for a proscribed reason (or one reason was a proscribed reason) if the employer fails to made good its defence.

·        Termination for reason of family responsibilities?

27                  I have already noted that s 170CK is intended to give effect to, inter alia, the Family Responsibilities Convention which is found in Schedule 12 of the Act.  It is clear from article 1 of that Convention that the notion of “family responsibilities” comprehends the responsibilities of men and women with dependent children who require the care and support of their parents.  The thrust of articles 3 and 4 is that steps should be taken to ensure that workers with family responsibilities can participate in the workforce in a way that enables them to discharge their family responsibilities.  Article 8 declares that family responsibilities shall not, as such, constitute a valid reason for termination of employment.  It is relatively clear, in my opinion, that s 170CK is intended to prevent the termination of an employee’s employment if the employee is able to perform the work he or she was engaged to do though his or her performance is constrained (perhaps other than in a fundamental way) by the family responsibilities of the employee (this is not intended to be an exhaustive description of the scope of the section).  The constraint may, for example, take the form of limits on the hours per day the employee can work either in the short term or the longer term or may arise when the employee has to be absent from work because of the illness of a dependent child.  Plainly the legislative inhibitionon termination for this reason is subject to the inherent requirements of the position: s170CK(3) which is a matter I discuss shortly.  As to this proscribed ground generally see Wannberg v Alloa Holdings Pty Ltd (Industrial Relations Court of Australia, unreported, 31 July 1996).

28                  However in this case I am not satisfied that the family responsibilities of the applicant were not a reason for the termination of her employment.  Indeed I am affirmatively satisfied that at least a significant reason, if not the sole reason, that Mr Gillies decided to replace the applicant as his personal assistant was because the applicant was unable to work (without prior notice) the hours Mr Gillies demanded and left work (on the days her husband lectured) at a time that suited her in order to pick up her child from childcare and care for the child.  Indeed the following evidence was given by Mr Gillies:

So you’d made a decision to replace Ms Laz in the position partly because she was unable to work back on those days that she had to collect her son?  -- One of the reasons, yes.

It was Mr Gillies’ decision to replace the applicant as his personal assistant that led directly, in the absence of her agreement to leave (or her agreement to be redeployed within Downer) on terms acceptable to her, to the termination of her employment.  In my opinion, this reason constitutes a reason concerning, based on or arising from family responsibilities.  I have expressed it in these various ways as there is a lacuna, as I read it, in the language of s 170CK and these various expressions probably each describe what is intended by the section.

·         Termination for reason of pregnancy?

29                   In the original application it was alleged that the termination was on grounds of pregnancy and family responsibilities.  During the hearing an application was made by counsel appearing for the applicant to amend the application to enable her to rely also on para (h) of s 170CK(2) (absence from work during maternity leave) but the application was not pressed.  In Stojanovic v The Commonwealth Club Ltd (supra) an applicant succeeded in establishing (in the sense that the employer failed to negative the contention) that the termination was for reason of pregnancy.  However in that case there was some affirmative evidence of pregnancy being an operative reason for the termination.  In the present case it is clear that Mr Gillies had decided to terminate the applicant's employment as his personal assistant, if not with Downer itself, before he was made aware by the applicant that she was pregnant.  I do not think that his evidence concerning the possibility of her having another child can be elevated to a point where it can properly be inferred that this possibility influenced his decision to find another personal assistant.  I am satisfied it did not. 

30                  The question then becomes whether I am satisfied the applicant's pregnancy, once revealed to Mr Gillies, did not influence the decisions he made and the approach he took which ultimately led to the termination of the applicant's employment.  The material decisions and approach were firstly to reject the proposal of the applicant to be made redundant and paid eight months pay and secondly to explore, only in a limited way, redeployment within Downer.  I am satisfied that the applicant's pregnancy did not influence Mr Gillies in this way.  He had charted a course of conduct when he interviewed for a replacement personal assistant.  While it was not inevitable that events would unfold as they did, what happened was one of a limited number of likely outcomes.  When Mr Gillies embarked upon this course he did not then know the applicant was pregnant and everything he did after he was told was consistent with him following that course.  I accept that Mr Gillies sought and obtained legal advice which resulted in a draft letter which might be viewed, in other circumstances, as self-serving in a way that invited scepticism.  In other circumstances, a written protestation (particularly on legal advice) that pregnancy or a claim for maternity leave was not being viewed as relevant might tend to establish the opposite.  However in this case it was prudent for Mr Gillies to obtain advice given that he had been confronted with the request for maternity leave (and told of the applicant's pregnancy) after he had taken steps that would or might result in the termination of the applicant's employment.  Nothing turns, in my opinion, on the advice or the steps Mr Gillies took in response to the advice.  I am satisfied that Downer has succeeded in establishing a defence, as contemplated by s 170CQ (b), by proving that the termination was not for the reason (or did not include the reason) of the applicant's pregnancy.

·        The inherent requirements of the position

31                  Counsel for Downer called in aid s 170CK (3) and submitted that an inherent requirement of the position of personal assistant to Mr Gillies was that the employee be available to work when required beyond 5.30 pm without prior notice.  Reference was made to the decision of the High Court in Qantas Airways Ltd v Christie (supra) and the following passages in the judgments of Brennan CJ and Gaudron J. The Chief Justice said at 366:

… I agree that a stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee's position. The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.

Gaudron J said at 374:

There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position.  But that is not always so.

and later at 375:

A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.

This issue was considered by McHugh J at 383 to 388, Gummow J at 391 to 395 and by Kirby J at 411 to 415.

32                  In my opinion the inherent requirement identified by counsel for Downer is not, for the purposes of s 170CK(3), an inherent requirement of the position.  It is to be recalled that the letter appointing the applicant contained the following condition of employment concerning hours of work:

33                  I accept that whether a requirement is an inherent requirement is not simply answered by referring to the terms of the contract of employment. Moreover the term concerning working hours, in the present case, is of limited assistance.  It indicates the normal hours of work conclude at 5.30 pm but recognises that work outside those hours may have to performed by the employee.  However the comparatively clear implication of the qualifying words – “the Company will endeavour to keep such additional work to a minimum” – is that working beyond 5.30 pm would be the exception rather than the rule and, as a corollary, the work the position entailed could ordinarily be completed by that time.  Moreover the term does not deal with notice which was a fundamental matter of concern to the applicant.

34                  In the present case there was no body of evidence demonstrating any of the following; firstly that there had been work (significant either in its quantity or quality) that should have been done by the applicant (as the occupant of the position of personal assistant to the managing director) after 5.30 pm, secondly that it was not done by her on the day in question, thirdly that her failure to do it had a consequence of substance either for Mr Gillies or the company more generally and fourthly notice could not have been given that the work was required.  While it is probable that the failure of the applicant to work beyond 5.30 pm or even 6.00 pm was, on occasions (and perhaps many occasions), a source of irritation to Mr Gillies (to be inferred from his complaints about the matter) I do not consider that this fact can found a conclusion that the inherent requirement identified by Downer in these proceedings was, in truth, an inherent requirement of the position.

Should reinstatement be ordered?

35                  For the preceding reasons, I am satisfied that Downer contravened s 170CK(2)(f) by terminating the employment of the applicant's employment for a reason which included a proscribed reason, namely family responsibilities.  The question then arises as to what orders should be made.  The applicant seeks an order of reinstatement under s 170CR(1)(b).  This is resisted by Downer on, as I understood the submission, two bases.  The first is that this litigation has resulted in submissions being made on behalf of the applicant which are highly critical of Mr Gillies and, as a consequence, it is unlikely the applicant would be able to re-establish a working relationship with Mr Gillies though the submission may have extended to the inability of the applicant re-establishing a working relationship with employees in Downer more generally.  The second, and related, matter is that the administrative offices of Downer in Sydney (of which there are two) are comparatively small and it is unlikely a position exists or could be created to satisfy any order of reinstatement.

36                  I accept that it is relevant to consider whether a satisfactory working relationship can be re-established.  But as von Doussa J said in Ettridge v TransAdelaide (1998) 80 IR 422 at 430 (in relation to the exercise of the power conferred by s 170CR):

In considering whether the discretion to order reinstatement should be exercised, a central consideration is whether a satisfactory working relationship can be re-established between the parties.  As Moore J observed in Bean v Milstern Retirement Services Pty Ltd (unreported, Industrial Relations Court of Australia, 2 June 1995) in many instances personal tensions created by litigation can be expected to lessen if not dissipate entirely with the passage of time.

See also Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 at 191 and Sherman v Peabody Coal Ltd (1998) 88 IR 408 at 424-425.

In the present case I accept that the submissions made by counsel for the applicant did involve fairly forceful criticism of the conduct of Mr Gillies.  Plainly enough, however, allowance needs to be made for the flourishes of an advocate in adversarial proceedings and the fact that counsel will develop and articulate as fully as possible (within the bounds of professional propriety) submissions made on behalf of a litigant.  I have little doubt Mr Gillies, who is a senior executive in a large corporation, would understand and make allowances for this when considering the criticism made of him.  I accept that, apart from any effect the criticisms may have, there will be tensions between Mr Gillies and the applicant if an order is made reinstating her.  I also accept that if she is reinstated to her former position of personal assistant to Mr Gillies, those tensions would be exacerbated given the close working relationship that almost invariably attends the position of personal assistant.  I should add, however, that no specific evidence was called on behalf of Downer directed to proving the inappropriateness of an order for reinstatement being made.

37                  I accept that the scope for employment as a personal assistant in the administrative offices of Downer in Sydney are limited because the two offices (one in the city and the other at North Sydney) are not large.  However the evidence concerning the size of the offices was not led by Downer but arose from a question I asked. The evidence is otherwise extremely limited as to the practical difficulties attending any order for reinstatement.

38                   In any event, these considerations concerning the position of Mr Gillies and Downer have to be balanced with the interests of the applicant who has established her employment was terminated in contravention of the Act.  While I have not discussed the evidence in detail, the applicant has moved progressively, during her working life, to more senior administrative support positions. In my opinion, the Court should be alert to ensure that achievements of this type should not be lost, in whole or in part, by the unlawful termination of an employee's employment if there are no clear discretionary considerations militating against ordering reinstatement.  This is particularly so where an applicant has young children (as is the case in this matter) which can, in a practical sense, add to the difficulties of securing and maintaining employment notwithstanding the existence of provisions such as s 170CK.

39                  I am satisfied an order should be made reinstating the applicant and, if necessary, ordering reinstatement to the position of personal assistant to Mr Gillies (though I understood this not be the preferred remedy of the applicant).  However under the earlier legislative scheme there was an express power to order reinstatement to an equivalent position. That is, reinstatement to a position other than the position held at the time of termination but a position attracting no less favourable terms and conditions of employment.  The scope of that power was discussed in Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240.  Whether an order of a similar character can be made under s 170CR is not a matter I need address if the parties can agree on a form of order to give effect to these reasons.  Accordingly I propose to make no formal order at this stage but to adjourn the matter to enable the parties to bring in short minutes of order which, if agreement can be reached, will, if necessary, address this question.

Should back pay be awarded?

40                  The applicant sought an order requiring, effectively, payment of her salary from the time of the termination to the time of judgment.  This was resisted by Downer and an issue was raised about the power of the Court to make such an order.

·        The power to order back pay

41                  Under the earlier legislative scheme the Court was given an express power to order payment of lost remuneration effectively for the period between termination and reinstatement (subject to qualifications that are not presently relevant): see s 170EE(1)(b)(ii).  There is no power expressed in the same terms in s 170CR(1).  However I have no doubt that Parliament intended that there be such a power given that its absence would curtail appreciably the intended beneficial objects of the legislation. Either the power conferred by para (d) to make any other order that the Court thinks necessary to remedy the effect of an unlawful termination or the power conferred by para (e) to make any other consequential order may authorise an order requiring the payment of an amount equivalent to the wages or salary of the employee from the time of termination to the time reinstatement was ordered would sustain an order for back pay.  Indeed it may be that the power conferred by para (a) to order reinstatement has, as an incident of its exercise, the effect of requiring payment of lost wages or salary: see Printing and Kindred Industries Union v Vista Paper Products Pty Ltd (1992) 9 CAR 10, 45 IR 268 and Morris v Gestetner Ltd (1973) ICR 587 at 592.  This question received only the most cursory attention from counsel and I am content to proceed on the basis that the power exists and arises on any of the three bases just discussed. 

·        The exercise of the discretionary power

42                  In addition to the submission that there was no power to order lost wages or salary, a submission was made by Downer that this remedy was not sought in the application.  However no submissions were made that, in the event that I did not view these matters as precluding an order being made, the full amount of lost wages or salary should not be ordered.  It is true that the application (in accordance with form 5) and the claim form accompanying it did not indicate an order for lost wages or salary was sought (at least as a discrete remedy).  This may be explained because of the absence of any box in the claim form identifying, expressly, that remedy.  In any event it has not been suggested by counsel for Downer that there would be any prejudice to it flowing from the order being sought orally during the hearing.  It appears to me that subject to any statutory direction (or compelling discretionary considerations) to the contrary, if reinstatement is ordered then lost wages or salary should also be awarded.  In the present case I propose to order that Downer pay the applicant foregone salary for the period 2 July 1999 to the date of this judgment.  Given that, for reasons earlier expressed, I will be giving the parties an opportunity to bring in short minutes, I propose to allow the parties an opportunity to agree on an appropriate figure.  I am aware that little attention was paid to whether the amount should be a gross amount or a nett amount.  If this becomes an issue, I will address it though I can see no reason why the approach adopted under the earlier legislative scheme would not equally apply: see The Taxation Implications of Statutory Unlawful Terminations of Employment (1994) 7 AJLL 227.  My present view is that allowance will have to be made for the payments made to the applicant at the time of for termination in the sense that they will have to be deducted from the total amount equivalent to salary foregone since the termination.  Again, however, this was not a matter about which the parties made detailed submissions and if it is, or becomes, an issue I will address it.

Should compensation be ordered?

43                  In addition to the remedies already discussed, the applicant sought compensation but as an alternative to an order for reinstatement and an order requiring the payment of salary foregone.  Accordingly, as these orders will be made, is unnecessary to consider this matter further.

Should a penalty be imposed?

44                  The applicant also sought the imposition of penalty and reference was made to the judgment of French J in Fox v St Barbara Mines Ltd [1998] FCA 621.  Having regard to the prefatory words of s 170CR(1) such an order may be made even if orders of the type already discussed are made as well.  That is, all or any of the remedies may be ordered (though viewing the section as a whole, it may arguably be that compensation and reinstatement cannot be ordered in the same matter).  However it is clear from the structure of the subsection that Parliament contemplated that circumstances may arise where, for example, an order for reinstatement is made (necessarily arising from an established contravention of the Act) but no order is made imposing a penalty.  It appears to follow that Parliament intended that the mere fact that there has been a termination in contravention of the Act does not, without more, give rise to a situation where a penalty should (rather than might) also be imposed.

45                  In Fox v St Barbara Mines Ltd French J noted:

… [penalties] are punitive in character and must be assessed having regard, inter alia, to the gravity of the conduct complained of, the existence of litigating circumstances and the need to deter the repetition of the conduct whether by the employer in question or generally.

His Honour concluded, in that matter, that the termination was of an employee pursuing his lawful entitlements and involved a calculated and contemptuous disregard of the law and the right of a long-standing employee.  It was, as his Honour described it, “a piece of industrial relations work… belong(ing) in the Stone Age” that should not be countenanced by the Court.  He described the conduct of the employer as “at the high end of the range of seriousness”.  A penalty of $9000 was imposed.

This case does not have, in my opinion, any of the features referred to by French J.  I accept that Mr Gillies was not sufficiently sensitive to the circumstances of the applicant and the difficulties (more often confronting women) associated with working and rearing young children.  I accept that the particular needs of the applicant were raised by her when she was first employed.  I also accept that the way Mr Gilles went about replacing the applicant as his personal assistant (by doing it while the applicant was on leave and not informing her, at the latest, as soon as a replacement had been selected) was likely to increase the hurt and embarrassment the applicant would suffer by being replaced.  However the impression I gained of Mr Gillies when he gave evidence was that he did it this way to avoid having to confront the applicant, which was likely to be difficult and perhaps embarrassing for him, rather than because he was utterly indifferent to the impact his approach might have on the applicant. Taking these various matters into account, I am not satisfied that the termination of the applicant occurred in circumstances that would warrant the imposition of penalty.  Accordingly I do not propose to make an order under s 170CR(1)(a) requiring payment of a penalty.

Conclusion

46                  Counsel for the applicant foreshadowed an application for costs but asked that she be given an opportunity to address that question after the application had been determined in substance.  Accordingly I will, when the orders giving effect of these reasons have been made, hear submissions from both counsel on the question of costs.  Consistent with observations I have made to this point, the only order I propose to make at this stage is to adjourn the matter to 20 October 2000 to enable the parties to bring in short minutes to give effect to these reasons.  I would invite the parties to advise my associate as soon as possible after these reasons have been published, if there are any further issues (identified in the reasons) that need to be determined before orders can be made.

Associate:

Dated:              11 October 2000