FEDERAL COURT OF AUSTRALIA
Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] FCA 1978
Age Discrimination Act 2004 (Cth) s 14, s 15, s 16, s 18
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO
Long Service Leave Act 1955 (NSW) s 3(2A), s 4(11)(a)
Sex Discrimination Act 1984 (Cth) s 5, s 5(1), s 5(2), s 8, s 14
Workplace Relations Act 1996 (Cth) s 170CD, s 170CK, s 170CK(2)(f), s 170CQ
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Howe v Qantas Airways Limited [2004] FMCA 242
Reed v Blue Line Cruises Limited (1996) 73 IR 420
Siagian v Sanel Pty Ltd (1994) 1 IRCR 1; 122 ALR 333
DONNA THOMPSON v BIG BERT PTY LTD T/AS CHARLES HOTEL
NSD 877 OF 2006
DONNA THOMPSON v BIG BERT PTY LTD T/AS CHARLES HOTEL
NSD 1948 OF 2006
BUCHANAN J
14 DECEMBER 2007
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 877 OF 2006 |
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BETWEEN: |
DONNA THOMPSON Applicant
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AND: |
BIG BERT PTY LTD T/AS CHARLES HOTEL Respondent
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1948 OF 2006 |
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BETWEEN: |
DONNA THOMPSON Applicant
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AND: |
BIG BERT PTY LTD T/AS CHARLES HOTEL Respondent
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BUCHANAN J |
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DATE OF ORDER: |
14 DECEMBER 2007 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The applications are dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 877 OF 2006 |
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BETWEEN: |
DONNA THOMPSON Applicant
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AND: |
BIG BERT PTY LTD T/AS CHARLES HOTEL Respondent
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1948 OF 2006 |
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BETWEEN: |
DONNA THOMPSON Applicant
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AND: |
BIG BERT PTY LTD T/AS CHARLES HOTEL Respondent
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JUDGE: |
BUCHANAN J |
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DATE: |
14 DECEMBER 2007 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
BUCHANAN J:
THE BASIC ISSUES
1 Ms Donna Thompson worked as a bar attendant at the Charles Hotel in Wollongong from 1999 until the end of 2005. Initially she worked mainly fixed and regular shifts. Although her working arrangements were regular she was a casual employee. In October 2005 her shift arrangements were varied. Within a short period of time she lost both regularity and quantity of work. Her time was reduced from three shifts to two shifts per week and sometimes less. At the time of the variation to her shift arrangements Ms Thompson was 37 years old. According to evidence given in her case the owner of the hotel, Mr Wakeford, had been heard to remark that he wanted to replace some older staff with ‘young glamours’. Some of the other female bar staff were about her age or older and some were younger.
2 Ms Thompson had young children. She preferred her earlier regular working arrangements and not working on weekends because this more easily accommodated her childcare arrangements. On her case the variation to her working arrangements, including a necessity to work sometimes on weekends, was an attempt to force her departure in circumstances where hotel management knew that the altered working arrangements would not be convenient to her, having regard to arrangements she made for childcare while working.
3 Prompted by the alteration to her working arrangements Ms Thompson sought and obtained casual bar work elsewhere. Through a combination of circumstances, including her own unavailability or a desire not to work, her actual working hours in December 2005 fell away almost completely. She was not rostered to perform any work in early January 2006 but had indicated her desire to take four weeks ‘holidays’ from the Charles Hotel commencing on 6 January 2006. During this period she in fact worked in alternative casual employment.
4 In early January Ms Thompson noticed that she had not been rostered to work in the week before proceeding on her ‘holidays’. On 4 January 2006 she had a conversation by telephone with Mr Wakeford. She alleges that the result of this conversation was to terminate her employment relationship with the Charles Hotel. Mr Wakeford says that he expected her to return to work at the Charles Hotel but that she never did so.
5 With this very basic account of the background to the present case it is possible to identify the following questions which arise for determination in this case:
1. Did the variation to Ms Thompson’s working arrangements from 17 October 2005 represent direct or indirect discrimination because of her age?
2. Did the altered working arrangements represent indirect sex discrimination for the reason that, as Ms Thompson alleges, the burden of the care of young children in Australia falls predominantly upon women?
3. Did the conversation on 4 January 2006 terminate Ms Thompson’s employment relationship?
THE STATUTORY FRAMEWORK
6 Ms Thompson commenced two proceedings which were heard together. One invoked the Court’s jurisdiction under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’) to deal with matters the subject of a complaint terminated by the President of theHuman Rights and Equal opportunity Commission (‘HREOC’). Ms Thompson had made such complaints under the Age Discrimination Act 2004 (Cth) and the Sex Discrimination Act 1984 (Cth).
7 The first relevant section of the Age Discrimination Act is s 14 which provides:
‘14 Discrimination on the ground of age – direct discrimination
For the purposes of this Act, a person (the discriminator) discriminates againstanother person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a) the discriminator treats or proposes to treat the aggrieved person less favourable than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and
(b) the discriminator does so because of:
(i) the age of the aggrieved person; or
(ii) a characteristic that appertains generally to persons of the age of the aggrieved person; or
(iii) a characteristic that is generally imputed to persons of the age of the aggrieved person.’
8 Section 15, deals with indirect discrimination. Section 15(1) provides:
‘15 Discrimination on the ground of age – indirect discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a) the discriminator imposes, or proposes to impose, a condition, requirement or practice; and
(b) the condition, requirement or practice is not reasonable in the circumstances; and
(c) the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.’
9 Section 16 provides:
‘16 Act done because of age and for other reason
If an act is done for 2 or more reasons, then, for the purposes of this Act, the act is taken to be done for the reason of the age of a person only if:
(a) one of the reasons is the age of the person; and
(b) that reason is the dominant reason for doing the act.’
10 The nub of Ms Thompson’s allegation is that she was denied work in the amount and at the times she wanted directly and indirectly because of her age. The characteristic which she says appertains generally to or is generally imputed to persons in their late 30s is that ‘they are less attractive and less glamorous, than persons in a younger age group’. She alleges it was a requirement that ‘in order to continue in her usual shifts she look attractive and/or glamorous and young’.
11 Her claim under the Sex Discrimination Act relied on the concept of indirect discrimination as reflected in s 5(2) of that Act. Section 5(1) and (2) provide:
‘5 Sex discrimination
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
(1A) To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.’
12 Sections 8 and 14 contain provisions to the same effect as sections 16 and 18 of the Age Discrimination Act earlier referred to.
13 Ms Thompson contends that the relevant characteristic, appertaining primarily to women (although s 5(1) speaks of generally, not primarily), is the characteristic of having child-care responsibilities, which limit one’s availability to work. She argues that the changes to her working arrangements in October 2005 imposed a requirement having the effect of disadvantaging women.
14 The other proceedings involve a claim under s 170CK(2)(f) of the Workplace Relations Act 1996 (Cth) (as that Act was in force prior to extensive amendments made effective from 31 March 2006). It provided relevantly:
‘… 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) … age ...’
15 This claim relates only to the circumstances in which Ms Thompson ceased to work at the hotel. It turns on the meaning to be attributed to the telephone conversation between her and Mr Wakeford on 4 January 2006.
16 Section 170CD provides, for the purpose of the provision relied upon by Ms Thompson:
‘termination or termination of employment means termination of employment at the initiative of the employer.’
17 Ms Thompson bears the onus of establishing the initial fact that her employment was terminated ‘at the initiative of’ the respondent, who says in answer that it was at her own initiative that she ceased to work at the hotel.
18 In relation to her unlawful termination case Ms Thompson had the advantage of s 170CQ which provides:
‘170CQ Proof of issues in relation to alleged contravention of
section 170CK
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 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 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 subsection 170CK(3) or (4) applies).’
19 However, although the respondent thereby bears the onus of assigning entirely legitimate reasons for a termination alleged to be for an unlawful reason, s 170CQ does not assist Ms Thompson to establish the necessary anterior fact that her employment was terminated by the respondent.
20 Ms Thompson also makes a claim under the Long Service Leave Act 1955 (NSW). Section 3(2A) of that Act accommodates the circumstances of an employee with no fixed number of normal weekly hours. Section 4(11)(a) also makes it clear that casual employment is not excluded. As she had worked at the Charles Hotel for longer than five years, before 4 January 2006, if she was dismissed from continuing employment, as she claimed, she would be entitled to a pro rata payment on account of long service leave, to which entitlement does not otherwise arise (subject to other exceptions not relevant in this case) until 10 years service has been completed.
DISCRIMINATION CLAIMS
Facts
21 Ms Thompson commenced working as a bar attendant at the Charles Hotel on 27 February 1999. Apart from a break for 2½ months in 1999 for the birth of her second child, until some time in 2004 Ms Thompson appears to have worked three regular day shifts during the week. In 2004 one of these day shifts was replaced by a night shift. She did not work any regular hours on weekends. Substantial changes were made from the week commencing 17 October 2005 but before discussing them it is necessary to provide a summary of some earlier events.
22 In January 2005 Mr Doug Allan became the licensee of the hotel. He remained in that position until 13 October 2005 when Ms Marja Engelhardt took over from him.
23 Mr Wakeford was concerned about a number of aspects of the hotel’s operations. On 10 August 2005 he sent a memo to Mr Allan. Excluding introductory and concluding remarks he expressed his concerns as follows:
‘My observations of the operation of the hotel and the areas which I feel need attention are listed below.
1 Mode of operation
The hotel has had a real change in the way it has been operated for many years. Successive managers have become seat warmers and have only carried on with events as they have been passed on by their predecessors in the past. We need a fresh approach to the hotel operation.
2 Staffing
Whilst most of the staff are acceptable, there a few who really must go. They are tired in appearance and attitudes and have a negative effect on the rest of the staff and also on our few remaining customers.
New professional staff are urgently required, particularly in the gaming area. Considering I am the one paying the wages I would like some input into employing new staff.
3 Wages level
The wage level at this hotel is excessive and has now reached a point where the wages level exceeds the bar income, which of course is unacceptable. With the introduction of the single bar operation to facilitate the eventual non smoking venue NOW is the time to reform our staffing and to introduce some new blood and ideas into the workforce.
Events over the last few weekends with the bottleshop computer demonstrate that our assistant managers have very little to do bar playing online with our bottleshop computer then leaving it in an inoperable condition.
Once the single bar operation is introduced we will use the assistant managers to serve behind the bar in busy periods.
4 Cleanliness of the hotel
Whilst the hotel is cleaner now than in the past, there is still room for a large improvement and I see a reduction in cleaning hours as a priority.
From my observations over the last month Gary and Trish are enjoying a paid holiday at the hotel.
5 Promotions
Australia day, Saint Patricks day, Valentines day and many other opportunities have passed with no relevant promotions occurring at the hotel.
The gaming promotion which Karen carried out on Thursday evenings was popular, but like most promotions it became tired.
Anzac day was a success because we promoted it.
We need to plan ahead to capatilise [sic] on events as they occur and to promote these events as necessary.
As shown by recent trading figures, Friday night Karoake and noisy bands are a complete waste of money.
6 Bar Percentages
As you heard at the AHA conference the ATO expect our bar trading percentages to be 70% unless we can explain any shortfalls, which I am unable to do.
We are trading around 56% to 58% which is unacceptable.
We need to examine the following and to act on any findings.
Cellar procedures
Bar procedures
Free drinks
Staff drinks
7 Gaming
The gaming receipts have dropped markedly this year as shown on the graph. The operation of the gaming room needs to be reviewed, with vigour.
Free coffee and sandwiches need to be served at the poker machine area to players in a polite manner.
Noise in the gaming room to be soft music, not the crappy staff now being played at a high noise level. A better understanding of gaming must be introduced to all staff.
Moving the TAB will assist.
8 Food
Decent food is a priority.
We must reopen the food area in a professional manner and not use untrained people as cooks.
Meanwhile we should consider bar snacks as a priority.
9 Any other.’
(Bold type in original)
24 Mr Wakeford’s opening remarks reminded Mr Allan that the period since January 2005 was the period of greatest decline in the income of the hotel. Other evidence indicated that in the same period the hotel was moving to a single bar operation. This was clearly a period of change which was taking place in a commercially adverse context.
25 On Wednesday, 5 October 2005 Mr Allan gave notice of his resignation following a period of leave which was to commence the following Monday (10 October). Mr Wakeford appointed Ms Engelhardt, then Manager of the bottleshop, to be interim manager of the hotel effective from Thursday, 13 October 2005. Ms Engelhardt had worked for Mr Wakeford for a number of years in various businesses. It appears that, originally, Mr Wakeford intended to find someone else to permanently replace Mr Allan but as events unfolded Ms Engelhardt remained manager and took up the position permanently from 4 November 2005.
26 The relationship between Ms Thompson and Ms Engelhardt (as Manager) appeared to get off to a rocky start. In the week following her appointment as interim Manager Ms Engelhardt authorised changes to the staff rosters. Starting times in the morning were delayed by half-an-hour and two afternoon shifts were cut from the roster altogether – one on Thursday and one on Friday. For the previous twelve months or so Ms Thompson had been working on day shift on Tuesday and Wednesday and on evening shift on Thursday commencing at 5pm. In the week commencing 17 October 2005 she lost her evening shift on Thursday. Ms Thompson bore a relatively large proportion of the cut in working hours, although certainly not the whole of them.
27 On Tuesday, 18 October Ms Thompson recorded in one of the diaries used to communicate between staff (including managers) that she had spoken to Ms Engelhardt about her shift arrangements and been told that she had lost some work because of her attitude. Ms Thompson’s note referred to events which occurred on 11 October, two days before Ms Engelhardt’s appointment as interim manager. It is likely that they involved some complaint from Ms Thompson about working under the supervision or direction of staff who were younger than she. One of the staff whose authority Ms Thompson appeared to resist and resent was Ms Melissa White. Ms White was 21 years old and had been appointed assistant manager by Mr Allan. At Ms Engelhardt’s request she recorded a formal complaint to which she assigned the date 15 October 2005. She said in her evidence that the date was probably not accurate although the events had occurred at around that time. That complaint was as follows:
‘Dear Maya [sic],
I wish to make a complaint against Donna Thompson, on several different occasions for the past several weeks I’ve had a few run ins and been verbally abused by Donna. It started when I started to do some training as assistant manager. Donna told me that she refused to work under or listen to a 21 year old lazy bitch who is to young to be a manager and doesn’t no [sic] how to do her job properly. She has mad me feel intimidated and uncomfortable during my shifts with her.
She has bitched to other staff members about my age and capability to work for the pub. This is not on and I don’t think I should have put up with it, I have spoke to both you and Tim on several occasions about this matter and written it up in the book, please when you get some time I would like to speak to you further about this matter.
Yours faithfully,
Melissa White’
28 Ms Engelhardt’s evidence about the events shortly before her appointment as interim manager was that she was in the main bar and about to go to the bottleshop when Ms Thompson:
‘… comes storming in, I’m not working with no effing 21-year-olds and I’m not working with effing Gavin and I’m not working with effing Mel. They’re incompetent. They’re – she just kept going on about the age and as a supervisor, “I’m not working with no fucking 21-year-old supervisor” and I just said look, settle down, come and see Doug when he’s back next week and I did sort of pass a bit of a joke that Gavin is going to be the licensee and she went off.’
29 Gavin and Mel are Mr Visser and Ms White. Mr Visser was also an assistant manager and had been put in charge of the hotel upon Mr Allan going on holidays the day before. He was also much younger than Ms Thompson.
30 It is apparent that Ms Thompson spoke to Ms Engelhardt on 18 October about the loss of her evening shift on 20 October and did so in a way Ms Engelhardt found confronting. Ms Engelhardt’s evidence included the following:
‘Now, I think you have given his Honour some understanding that you had some contact with Ms Thompson prior to being appointed interim licensee and then licensee?‑‑‑Yes.
Could you describe your contact with Ms Thompson upon becoming licensee?
‑‑‑Upon - very difficult. I just felt like she was out to give me a hard time for some reason. I didn’t really know why.
HIS HONOUR: Just give me some idea of the time frame, Ms Engelhardt. Was this before or after the roster changes?‑‑‑No, after. From the moment she came in that first shift with Gavin and saying about Gavin and Mel, I am not working with effing 21-year-olds it became, yes, and then when I changed the rosters and changed the hours she would come in behind the bar and come like two inches from my face and like really, I want my shifts back, I want my shifts back and really, yes, pretty stressful and I would say to her, look, come and talk to me in the office but she would never talk to me in the office about it. She would always confront me in front of patrons and always, like, talking loudly behind the bar and always just coming straight up to my face and, yes, so I would just sort of back away and just say come and see me in the office.
MR CROSS: And how quickly upon your being appointed interim licensee do you say this behaviour commenced?‑‑‑Pretty well straight away.’
31 In the week commencing 24 October 2005 Ms Thompson was rostered to work day shift on Wednesday and half a shift on Saturday evening. In the week commencing 31 October 2005 she was rostered to work evening shift on Monday and day shift on Wednesday. They were also her rostered hours in the week of 7 November 2005. Wednesday of that week was 9 November. Ms Thompson’s evidence was that she did not receive another day shift after 9 November. It seems clear that by 9 November Ms Thompson’s work relationship with Ms Engelhardt had deteriorated to a marked degree. Ms Engelhardt told her, she said in evidence, that she would not get another day shift as Ms Engelhardt could not work with her.
32 Ms Engelhardt attributed the roster changes that affected Ms Thompson directly to the conflict which was developing between them. She said:
‘You have given evidence earlier when we have looked at the differences between the roster for the week commencing 10 October and the roster commencing 17 October as to certain changes that were made that affected the person’s rosters?‑‑‑That is correct.
Was there anything peculiar to Ms Thompson after 17 October 2005 that affected the amount of rostered work she received or the time of those rosters?‑‑‑Yes, because she would just make my day so difficult that I ended up putting her on afternoon shifts so that hopefully we could get along if she wasn’t on day shift. Then that sort of wasn’t really happening so I put her on weekends, hoping we could avoid each other. It just didn’t feel like she wanted to be involved in the up and running and getting the hotel back on its feet. It was anything to make my life really hard and I struggled with that kind of behaviour, I didn’t know how to deal with it.
Around what time did that conduct affect the rosters received by Ms Thompson?‑‑‑Probably mid November if not a bit earlier because it was just continual.’
(emphasis added)
33 Asked why Ms Thompson’s employment had not simply been terminated Ms Engelhardt answered that she had never dealt with problems of this kind and thought Ms Thompson would ‘just get over it eventually’. As I understood her evidence Ms Engelhardt did not know what else to do except to ensure that Ms Thompson worked on shifts which were different from Ms Engelhardt’s own working times so that the opportunity for confrontation and, as Ms Engelhardt saw it, further harassment by Ms Thompson was removed.
34 On 14 November 2005 Ms Thompson had a meeting at the hotel with Mr Wakeford. Ms Engelhardt and Mr Dale (the accountant) were also present. The meeting on 14 November was arranged when Ms Thompson rang Mr Wakeford on 9 November after speaking to Ms Engelhardt about her rosters.
35 At this meeting Ms Thompson was issued with a warning letter referring to three incidents which had occurred on 9 November. Ms Thompson disputed the substance of each of them in her evidence but in my view that cannot detract from the indication that she was not on good terms with Ms Engelhardt. The three incidents were identified as follows:
‘• Failed to ensure TAB race sheets were up
• Failed to ensure there was adequate change for the Lunch break relief
• Displaying a poor attitude / resentment to new Management’
36 There is no indication in the evidence that this warning letter was ever acted upon or had any further formal significance. However the third entry is consistent with other evidence to the effect that Ms Thompson and Ms Engelhardt did not enjoy each other’s company at work.
37 Ms Visser’s evidence confirmed this general picture. During his cross-examination the following evidence was given:
‘HIS HONOUR: Well, Mr Visser, tell me why it was Ms Thompson who lost most of the hours?‑‑‑At this point in time in, like, late November/December, that is when – I don’t know how to put it politely but, like, bitchiness, fighting between Mia [Marja] and Donna, saying, I want my effing shifts back, and this is a point in time where it made it impossible for Donna to work in the mornings with Mia [Marja]. It made it too hard to – both people do their jobs. This is when we had customers coming up to us and saying – like, Donna was involving customers in workplace stuff and never need to be done. So it made it really impossible to get on the right shifts so everybody could do their jobs properly.
“Getting on the right shifts” meant, in a practical sense, keeping Ms Engelhardt and Ms Thompson separated?‑‑‑Yes. Because we’ve had – we had one row. I was coming out of the bottle shop because I wasn’t in the pub that day. Donna was working and Mia was finishing. They had a conflict behind the bar. Donna stating that, I want my shifts back, and swearing, pointing, and then they went to the office to sort it out. So I don’t know – don’t know what happened then.’
38 Ms Thompson began to seek work elsewhere. For a short period, commencing about 11 November 2005, Ms Thompson worked, apparently on a trial basis, at the Albion Park Hotel. Then, about 18 November 2005, she began working at the Collegians Club in Wollongong. It appears that she did not continue to work at the Albion Park Hotel after securing comparatively regular casual employment at the Collegians Club. Her obligation to attend a training shift at the Collegians Club on 22 November 2005 saw her prefer that to working at the Charles Hotel. From about this time, therefore, (i.e. mid November 2005) Ms Thompson made up for the shifts she had lost at the Charles Hotel by working elsewhere. Nevertheless, on 28 November 2005 she again took the matter up with Ms Engelhardt. She raised the matter at the main bar in front of customers. Ms Engelhardt caused the conversation to be moved to her office. Ms Thompson persisted in her complaints. Ms Engelhardt sent her home. Ms Engelhardt’s evidence was:
‘Then I just said to Donna, come and see me in the office and then when she came in to see me in the office she was like really, I want my shifts back, I want my shifts back and I’m going Donna, I’m tired of the attitude. I’m tired of this behaviour all the time. I’m tired of being attacked in front of customers and all I can recall is Donna kept saying I want my shifts back and I just said look, you know, I could have you sacked for insubordination. I was getting pretty frustrated by this time because I couldn’t – you couldn’t communicate with her well and I said look, just go home and come back next week for your next shift and we’ll settle down and ‑ ‑ ‑
…
HIS HONOUR: Was this before the end of her shift?‑‑‑No. The beginning of her shift.
What happened to her pay for the shift?‑‑‑I paid for the shift.’
The general substance of this conversation was confirmed by another employee who was asked by Ms Thompson to be present as her witness.
39 During December Ms Thompson’s rostered shifts at the Charles Hotel became even more sporadic and reduced for three weeks to one shift per week. On 10 December 2005 Ms Thompson wrote saying she would be unavailable to work on Christmas Eve and New Year’s Eve. She attributed her unavailability to difficulties of finding suitable and appropriate child care. It became clear that she had in mind also that she might be asked to work at Collegians Club. During this period there were some other occasions when she was rostered to work at the Charles Hotel but did not do so. In the week commencing 2 January 2006 Ms Thompson was not rostered to work at the Charles Hotel. In that week she worked at Collegians Club on four days. She accepted in her evidence that those working arrangements would have been rostered at Collegians Club the week before. Nevertheless Ms Thompson deposed that on 2 January she had a conversation with Ms Engelhardt complaining that she had been left off the roster at the Charles Hotel. Two days later Ms Thompson rang Mr Wakeford directly. It is this conversation which is relied upon by her as suggesting that her ongoing employment with the Charles Hotel was terminated.
40 In her letter of 10 December 2005 Ms Thompson also indicated that she wanted to take ‘four weeks vacation’ between 6 January 2006 and 6 February 2006. During this period, although she did not perform any work at the Charles Hotel, she worked at the Collegians Club. On 23 January 2006 Ms Thompson filed an application in the Australian Industrial Relations Commission alleging that she had been unfairly dismissed. She did not return to work at the Charles Hotel.
Direct Age Discrimination
41 The evidentiary foundation for this part of Ms Thompson’s case rested entirely upon three remarks attributed to Mr Wakeford. The first of them occurs in his memo to Mr Allan which I set out earlier. Ms Thompson relies upon the reference to some staff being ‘tired in appearance and attitudes’. She asserts that these comments applied particularly to her. Mr Wakeford denied that was so or that they had anything to do with age.
42 The next remark attributed to Mr Wakeford arose from Ms Thompson’s evidence that Mr Allan had informed her that ‘Dave wants fresh new pussy in the place – fresh new young pussy in the place’. The description ‘young’ was added by Ms Thompson by way of correction to her first version of Mr Allan’s statement. I found it unconvincing and contrived. Mr Allan, who was called in Ms Thompson’s case, denied any remark to Ms Thompson in these terms although he did attribute to Mr Wakeford, in about July or August 2005, the statement that ‘we need to replace some of our tired older staff with some young glamours’. No instruction to that effect was given. Mr Allan understood it as Mr Wakeford’s general desire. The third occasion was during the meeting on 14 November 2005 after Ms Thompson had been given a written warning. Ms Thompson claimed that Mr Wakeford said he wanted ‘young, fresh faces in the place’. No other person present at the meeting agreed that was said. The meeting appeared to revolve around Ms Thompson’s work performance and, in particular, the difficulties between her and Ms Engelhardt. As I earlier indicated, other female bar staff were about Ms Thompson’s age or older. Ms Engelhardt was older.
43 On Ms Thompson’s behalf the following submission was made:
‘The applicant submits … that the dominant reason for the reduction to Ms Thompson’s hours, and the removal of her regular shifts, was Ms Thompson’s age, or alternatively a characteristic that appertains generally to persons of the age or age group of Ms Thompson, or alternatively a characteristic that is generally imputed to persons of the age or age group of Ms Thompson. The relevant characteristic which appertains or is generally imputed to persons in their late 30s is that they are less attractive, and less glamorous, than persons in a younger age group. The applicant’s case is that Ms Thompson, particularly having regard to her excellent work history at the Charles Hotel, was treated less favourably after 16 October 2005 than she would have been had she been of a younger age group in circumstances which were the same or not materially different.’
44 This argument cannot be accepted. I am satisfied that the changes in working arrangements for Ms Thompson were initially prompted by Ms Engelhardt’s response to the need to reduce the bar wages bill and the overall number of working hours. Her decisions were rapidly influenced by her response to Ms Thompson’s persistent and unwelcome complaints about the change to her working arrangements. I have no doubt that Ms Engelhardt found the position tiresome and unacceptable. She responded by removing Ms Thompson from shifts where she might encounter Ms Engelhardt. One feature of the changes was to place Ms Thompson from time to time on shifts with a greater number of customers. Such a result is quite inconsistent with any suggested desire to replace her with ‘young glamours’. It is, however, entirely consistent with Ms Engelhardt’s desire to be rid of her presence without terminating her employment altogether.
45 Ms Thompson bears the onus of showing that discrimination on the ground of her age was at least a reason for the change to her working arrangements even if not the only or even the dominant reason. She has failed to establish that this is so by a considerable margin.
Indirect Age Discrimination
46 In written submissions it was put on behalf of Ms Thompson:
‘In the alternative the applicant submits that the respondent indirectly discriminated against Ms Thompson in that it imposed a requirement that in order to continue in her usual shifts she look attractive and/or glamorous and young. The respondent reduced Ms Thompson’s hours and removed her regular shifts because she did not look sufficiently young, attractive and/or glamorous. The requirement that bar attendants look attractive and glamorous is one condition which Ms Thompson did not and could not meet (on Mr Wakeford’s assessment) and which persons of Ms Thompson’s age group would find more difficult to comply with than those of a young age group. Accordingly the requirement constituted indirect discrimination for the purpose of s15 of the ADA.’
47 This submission also cannot be accepted for the reasons given above.
Indirect Sex Discrimination
48 The claim of indirect sex discrimination was based on the proposition that ‘a condition or requirement was imposed on Ms Thompson and that requirement was that she be available to work any shifts in an irregular pattern varying from week to week and lacking any predictability or certainty’. The way in which that was said to discriminate against women rather than men was that ‘the responsibility of caring for children is a characteristic that appertains to women predominantly for the purpose of sex discrimination’. Reliance was placed on a decision of Driver FM in Howe v Qantas Airways Limited [2004] FMCA 242. That was a case alleging unlawful discrimination on the grounds of sex, pregnancy and family responsibilities. It concerned a complaint by a flight attendant who was not allowed to change to part-time employment at her existing salary, was required to cease flying and denied access to accumulated sick leave. The case resulted in a declaration about the sick leave issue and orders related to that issue. In the course of his judgment Driver FM said (at [115]):
‘I find the material referred to by the Sex Discrimination Commissioner and the additional material I have referred to compelling. Whatever social changes may have taken place in Australia over the past 25 years, women remain the dominant care givers of young children. I so find.’
and (at [118]):
‘Family responsibilities is not necessarily a characteristic appertaining generally to women. The point is that the present state of Australian society shows that women are the dominant caregivers to young children. While that position remains (and it may well change over time) s.5(2) of the SDA operates to protect women against indirect sex discrimination in the performance of that care giving role.’
49 I do not need to express any view about these findings. They did not result in a finding of indirect sex discrimination in that case. They have no application in the present case which is not concerned with a refusal to provide part-time employment.
50 In the present case Ms Thompson’s children were 13 and 6 years old at the relevant time. She cared for them as a single parent. The only evidence about the arrangements which she made was that sometimes her father looked after them when she worked in the evenings. I can see no basis to distinguish her circumstances from that of other single parents. There is no basis for any finding of indirect sex discrimination. This claim must also be rejected.
THE TERMINATION OF EMPLOYMENT CLAIMS
Facts
51 Ms Thompson’s evidence as to the conversation with Mr Wakeford on 4 January when she telephoned him was as follows:
‘I said, “Dave, I don’t have any shifts again.” Dave said, “Well, what do you want me to do? You’ve been off sick, you’re working somewhere else.” I said, “I haven’t been off sick.” He goes, “You did the other week.” I said, “I didn’t, I gave youse notice, I wasn’t off sick.” He goes, “And you’ve been working somewhere else. What more do you want?” I said, “I want my day shifts back, Dave, because they’re suitable and practical for me.” He said – I said, “Bruno gets practical shifts.” He said, “Don’t bring Bruno into this, Bruno’s a nice young man.” I said, “I know he is a nice young man, but he still gets suitable shifts and he also works somewhere else.” Dave was – mentioned something about my father again, I said, “That’s not relevant.” He went on about that again, and I said, “Dave, it’s not relevant.” I said, “You need to be honest with my father,” anyway, I said, “about my shifts.” He said, “Don’t bring Bruno into it, you’re not having your shifts,” or something. He goes, “You’re too bloody old, you’ve been here too long, you’ve had a good run anyway and now it’s over, because you and some of the others have had a good run and now it’s over.” And then he hung up on me.’
52 She also said:
‘Did you understand that your employment at the Charles was at an end as a result of that conversation?‑‑‑Definitely. He told me I wasn’t on the roster, I was on holiday at the end of week, and as far as he was concerned, I could stay off the bloody roster.’
53 Mr Wakeford’s evidence about this issue included the following:
‘She wanted to discuss – she rang me at home and wanted to discuss the shifts again. I explained the same thing we had just been through, that the hotel was losing money, we needed to reduce the shifts a bit and reduce staffing. I said we have all had a pretty good run so far, we have been over-staffed and now we have got to reduce.’
and:
‘But I explained to her that she had become fairly unreliable because she was working somewhere else. You know she would come to work and then she would go home sick and go and work at Collegians Club and what have you. I did ask her to make her mind up whether she wanted to work for us or work for the Collegians and when she had made her mind up give us a call back before the end of the holidays and we would try to get her back on the roster.
Did you expect her to return?‑‑‑I did, yes.
Did she return?‑‑‑No.’
54 The cross-examination of Mr Wakeford about this conversation was as follows:
‘You gave some evidence, Mr Wakeford, yesterday about a telephone conversation you had with Ms Thompson on about 2 January, was it? 4 January, I’m sorry?‑‑‑Yes.
And she telephoned you because she had been given no shifts during that week?‑‑‑Yes.
And I want to suggest to you that the conversation was to this effect, Mr Wakeford. When Ms Thompson said that she had no shifts that week, you said words to the effect of:
Well, what do you want? You are working somewhere else.
?‑‑‑Yes.
Did you say that?‑‑‑Yes.
And she said something along the lines of:
Well, I want my day shifts back.
Do you remember that?‑‑‑Yes.
And you said:
You were off sick and you have been working at another place. What more do you want?
Did you say that?‑‑‑Yes.
And Ms Thompson said words to the effect of:
I was forced to look for other work. I want my day shifts back because they are practical and suitable for me.
Did she say that?‑‑‑Yes.
And she also said something to the effect of:
Bruno manages to get shifts which are suitable for him as he has other employment.
?‑‑‑Yes but I point out that Bruno was a supervisor and a bottle shop attendant and as such his shifts were interchangeable and hers weren’t.
And at the end of the conversation you said words to the effect of:
You’re on holiday at the end of the week. You’re not on the roster and as far as I am concerned, you can stay off the bloody roster for good.
You said that?‑‑‑Definitely not.
And you said:
You’re too old and you have been here for too long. You and some of the others have had a pretty good run. I think so anyway and now it’s over.
?‑‑‑No.
And just taking you back to the meeting of 14 November, Mr Wakeford. Didn’t you also say at that meeting to Ms Thompson words to the effect of:
I want new younger girls with fresh faces.
?‑‑‑No.
And:
There aren’t enough shifts for you anymore.
?‑‑‑No.’
55 It was submitted on Ms Thompson’s behalf:
‘It is submitted that, even if Mr Wakeford’s evidence were accepted in full, his statements would constitute a termination of employment. On his own evidence he was requiring Ms Thompson to choose between her other employment and her employment at the Charles, in circumstances where she had NO guaranteed shifts at the Charles. There was no basis for such an ultimatum.’
and:
‘It is submitted that the above evidence demonstrates on the balance of probabilities the matters alleged by the applicant. It is submitted that the Court would accept that the main reason for the reduction in shifts suffered by Ms Thompson between October and December 2005 and her ultimate dismissal was her age or a characteristic associated with her age in the sense discussed above.’
56 In relation to motivation Ms Thompson has the benefit of the reverse onus of proof imposed upon the respondent by reason of s 170CQ of the WR Act. However it does not avail her on the question of motivation unless first she is able to establish that there was a termination of her employment within the meaning of s 170CK of the WR Act. In my view the evidence does not sustain such a conclusion.
57 Moore J (sitting as the Industrial Relations Court of Australia) in Reed v Blue Line Cruises Limited (1996) 73 IR 420 (‘Reed’) said, of casual employment:
‘A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.’
58 The casual nature of Ms Thompson’s employment constitutes a very substantial obstacle to any invocation of s 170CK, quite apart from the facts of the case. Traditionally, casual employees were regarded as employed only for the duration of a specific engagement – usually day to day. This may be contrasted with the traditional assumption that the period of engagement of a full-time or part-time employee was week to week as usually reflected in a formal period of notice for termination. These assumptions were not universally applicable and were susceptible to modification – e.g. to a monthly engagement. They are also subject to any relevant modification by or under a statute – e.g. by award.
59 Counsel for Ms Thompson argued that ‘Section 170CK of the WRA does not focus upon the termination of the contract between the parties but rather upon the termination of the employment relationship’ (original emphasis). She referred to Siagian v Sanel Pty Ltd (1994) 1 IRCR 1; 122 ALR 333 (‘Siagian’). In that case Wilcox CJ (sitting as the Industrial Relations Court of Australia) drew attention to the principles discussed by the High Court in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 (‘Watson’) where it was stated that there may be effective termination of an employment relationship even though the contract of employment may, for some legal purposes remain in existence. Similarly, Wilcox CJ in Siagian said the statutory scheme (which was relevantly similar to the present one) contemplated the effective termination of the relationship whether or not accepted. This conclusion, and the reasons for it, do not support a suggestion that an employment relationship can have a character more enduring or extensive than the contract on which it is based. On the contrary, as discussed in Siagian, the relationship is potentially more fragile, and less enduring, than the contract.
60 Moreover s 170CK makes no reference to termination of an ‘employment relationship’. It speaks of termination of employment and s 170CD defines what that term means as set out earlier. I do not see any support in the statute itself for what I understood to be the concept at the heart of the submissions made on behalf of Ms Thompson in this area – namely that the relevant provisions in the WR Act disclose some intention that a continuing casual relationship might provide a foundation upon which to argue that cessation amounts to termination of employment even though no breach of contract is involved because there is no obligation to offer further work or to accept it.
61 Ms Thompson was working as a casual employee. She had no fixed roster and no fixed number of hours per week. On the evidence she was free to accept or decline the shifts offered to her and did, in fact, for her own reasons decline some. Adopting, as a matter of comity, the approach taken by Moore J in Reed I conclude that at 4 January 2006 she had no legal basis upon which to insist she be offered further work, nor any obligation to accept such work if offered. The fact that no work was offered did not terminate either her contract of employment or any relevant employment relationship. In fact, she had made herself unavailable for any work until 6 February, 2006. There is no evidence that she offered her services to the Charles Hotel thereafter or was available.
62 Even if I had taken a different view about whether there was an actionable termination of employment within the meaning of s 170CK of the WR Act, on the facts of this case I would be satisfied that the respondent had discharged its onus of showing that Ms Thompson’s age was not a reason why she stopped working at the Charles Hotel. The only foundation for the suggestion is Ms Thompson’s attribution to Mr Wakeford in their telephone conversation on 4 January 2006, of the remark ‘You’re too old’. I did not find Ms Thompson’s evidence to be generally reliable. On a critical issue such as this I would not prefer her evidence to Mr Wakeford’s. I am satisfied that she rang Mr Wakeford to go over Ms Engelhardt’s head. I accept that there was a discussion about the basis upon which Ms Thompson might resume her casual employment with the Charles Hotel and that Mr Wakeford impressed upon her the need for a change of attitude. I do not accept that any resistance to the idea of her future employment was connected with her age. Had it been necessary to do so I would have concluded that the respondent had discharged its onus of showing that her age was not a reason for her casual employment with the Charles Hotel not continuing.
Long Service Leave
63 My conclusion that Ms Thompson was not relevantly dismissed from her employment by the respondent removes any foundation for this claim.
CONCLUSION
64 There is no foundation for the grant of any relief in this case. The proceedings will be dismissed.
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I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. |
Associate:
Dated: 14 December 2007
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Counsel for the Applicant: |
C Howell |
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Solicitor for the Applicant: |
Turner Freeman |
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Counsel for the Respondent: |
B Cross |
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Solicitor for the Respondent: |
Australian Hotels Association (NSW) |
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Date of Hearing: |
4 - 6 June 2007, 2 - 3 and 5 July 2007, 16 - 17 October 2007 |
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Date of Judgment: |
14 December 2007 |
