FEDERAL COURT OF AUSTRALIA

Stanley v Service to Youth Council Incorporated [2014] FCA 643

THE COURT DECLARES THAT:

1.    The respondent breached s 44(1) of the Fair Work Act 2009 (Cth) in that it failed, as required by s 65(4) of the Fair Work Act, to give the applicant a written response within 21 days to the request for a change in work arrangements contained in her email of 12 December 2011.

THE COURT ORDERS THAT:

1.    Pursuant to s 546(1) of the Fair Work Act, the respondent is to pay a pecuniary penalty of $4,000 in respect of its breach of s 65(4).

2.    Pursuant to s 546(3) of the Fair Work Act, this penalty is to be paid to the applicant.

3.    All other claims of the applicant in these proceedings are dismissed.

4.    The Court will hear the parties as to costs and any consequential matters.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The respondent (SYC) terminated the applicant’s employment on 15 February 2012. It said that the applicant’s position as Facilities Manager was redundant and that SYC had no other suitable position for her.

2    At the time of the termination, the applicant was on unpaid parental leave, having given birth to her first child on 20 August 2011. She contends that the decision to terminate her employment was made because of her pregnancy, parental leave and parental obligations and therefore a contravention of the Sex Discrimination Act 1984 (Cth) (the SD Act).

3    The applicant also claims other contraventions by SYC of the SD Act and of provisions of the Fair Work Act 2009 (Cth) (the FW Act). Some of the applicant’s claims were abandoned or modified in her final submissions (with those changes confirmed in writing subsequently). In addition, some unpleaded claims to which the applicant referred in the opening were not mentioned in the final submissions. I have taken those claims to be abandoned. The claimed contraventions by SYC which the applicant pursued were:

(1)    a contravention of ss 14 and 28B of the SD Act by reason of remarks said to have been made by the applicant’s Manager, Mr Furniss, on 11 February 2011 when she informed him of her pregnancy;

(2)    a contravention of s 14 of the SD Act by terminating her employment on the ground of her pregnancy, parental leave or family responsibilities;

(3)    a contravention of s 14 of the SD Act by removing the applicant’s car park access during the period of annual leave which immediately preceded her parental leave;

(4)    a contravention of s 14 of the SD Act by not commencing consultation with her promptly when SYC decided upon the final structure of “the property team” (of which the applicant had been a member) on or around 27 October 2011;

(5)    a contravention of ss 44(1) and 65 of the FW Act by not responding to her request for flexible working arrangements;

(6)    a contravention of ss 44(1) and 83 of the FW Act by failing to take all reasonable steps to give her information about, and the opportunity to discuss, the effect of its decision to make her position as Facilities Manager redundant;

(7)    a contravention of ss 44(1) and 84 of the FW Act by not permitting her to return to her pre-parental leave position or an alternative suitable position.

4    In her statement of claim (ASC), the applicant contended that, from the time of her announcement of her pregnancy, SYC began to treat her “less favourably and adversely” by reason of her pregnancy and impending parental leave. She contended that she had been “targeted” for dismissal by SYC by reason of those matters and that it had created her redundancy in order to allow it to terminate her employment. The applicant pleaded that each of five senior managers of SYC (Mr Edginton, Mr Furniss, Ms Gillies, Mr Dyer and Ms England) had participated in, and was responsible for, the decision to terminate her employment.

5    In addition, in her cross-examination the applicant maintained a belief that these five senior managers at SYC had together targeted her for retrenchment because of her pregnancy.

6    However, in his opening submissions, the applicant’s counsel said that it was not the applicant’s case that there was an intentional plan to inflict harm on her; in his closing submissions, he said that the applicant did not press the allegation that she had been targeted for dismissal; and that she withdrew the allegation that the “targeting” had commenced shortly after she had informed SYC of her pregnancy. In relation to the five senior managers, the applicant pressed only the claims that Mr Dyer and Ms England had participated in and were responsible for the decision to terminate her employment. It will be necessary to refer again to the withdrawal of these allegations later in these reasons.

The statutory provisions: the Sex Discrimination Act

7    Section 14 of the SD Act proscribes discrimination in employment on grounds related, amongst other things, to a person’s sex, pregnancy or family responsibilities. Section 14(2), on which the applicant relies, provides:

(2)    It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

(a)    in the terms or conditions of employment that the employer affords the employee;

(b)    by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c)    by dismissing the employee; or

(d)    by subjecting the employee to any other detriment.

Discrimination on the ground of sex is defined in s 5 of the SD Act as follows:

(1)    For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a)    the sex of the aggrieved person;

(b)    a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c)    a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

(2)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(3)    This section has effect subject to sections 7B and 7D.

Discrimination on the ground of pregnancy is defined in s 7 of the SD Act as follows:

(1)    For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if, because of:

(a)    the aggrieved woman’s pregnancy or potential pregnancy; or

(b)    a characteristic that appertains generally to women who are pregnant or potentially pregnant; or

(c)    a characteristic that is generally imputed to women who are pregnant or potentially pregnant;

the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.

(2)    For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are pregnant or potentially pregnant.

(3)    This section has effect subject to sections 7B and 7D.

As can be seen, each of ss 5 and 7 is made subject to ss 7B and 7D. It was not suggested that either of those provisions is applicable presently.

8    Discrimination on the ground of family responsibilities is defined in s 7A of the SD Act as follows:

For the purposes of this Act, an employer discriminates against an employee on the ground of the employee’s family responsibilities if:

(a)    the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and

(b)    the less favourable treatment is by reason of:

(i)    the family responsibilities of the employee; or

(ii)    a characteristic that appertains generally to persons with family responsibilities; or

(iii)    a characteristic that is generally imputed to persons with family responsibilities.

9    The expression “family responsibilities” used in s 14 is defined in s 4A(1) of the SD Act to include the “responsibilities of [a] person to care for or support … a dependent child of the person”.

10    Section 7 has been held to operate exclusively of s 5, so that when the facts concern a person who is pregnant and who claims to have been treated unfavourably because she is pregnant, or because of a characteristic that generally appertains to or is imputed to pregnant women, s 7 operates to the exclusion of s 5: Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 327-8; Thomson v Orica Australia Pty Ltd [2002] FCA 939 at [170]; (2002) 116 IR 186 at 230-1.

11    The phrases “by reason of” in ss 5(1) and 7A and “because of” in s 7 were considered in some detail by Lockhart J in HREOC v Mount Isa Mines at 321-2. His Honour held that the phrase “by reason of” in s 5(1) of the SD Act should be interpreted as meaning “because of”, “due to”, “based on” or words of similar import which bring something about or cause it to occur. See also Thomson v Orica at [159]-[161], 227-8. The “but for” test may be employed as a “useful checking exercise” but does not usually constitute a satisfactory enquiry, at least without considerable care: HREOC v Mount Isa Mines at 326. I proceed on the basis that the use of the phrase “because of” in s 7, in contrast to “by reason of” in ss 5(1) and 7A, is not intended to indicate a difference in meaning and effect: Thomson v Orica at [17], 190.

12    Section 8 of the SD Act addresses the circumstance of actions done by reason of two or more matters. It deems that an act is done “by reason of” one of those matters even if that particular matter is not a dominant or substantial reason for the doing of the act. Section 8 applies to s 7 despite using the phrase “by reason of”: Thomson v Orica at [20], 190.

13    Much has been written on the relevance of motive, purpose and intention in the context of anti-discrimination legislation: Purvis v State of New South Wales [2003] HCA 62 at [236]; (2003) 217 CLR 92 at 163; Thomson v Orica at [158]-[161], 227-8; HREOC v Mount Isa Mines at 324-5. For present purposes, it is sufficient to observe that an applicant need not establish an intention or motive to discriminate, but proof of such a motive or intention may be relevant to the question of whether, in all the circumstances, discrimination has occurred: HREOC v Mount Isa Mines at 325; Thomson v Orica at [161], 228; Purvis v NSW at [236], 163.

14    Sections 5(1), 7(1) and 7A require a comparison between an applicant’s treatment, on the one hand, and a hypothetical person in the applicant’s position but without the relevant characteristics of the applicant, on the other: Thomson v Orica at [121]-[122], 216-7; Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702 at [42]; (2008) 173 IR 378 at 392. This has been found to mean that, in considering the complaints made by the present applicant arising from her taking parental leave, the relevant comparitor is not a person with the same skills and experience as the applicant but who did not take any leave: Thomson v Orica at [121]-[122], 216-7. Instead, the person whose treatment is to be compared with that of the applicant is a hypothetical similarly graded Facilities Manager, with the applicant’s experience, who took 12 months’ leave with SYC’s consent and with an equivalent right to a return to work: Thomson v Orica at [121]-[122], 216-7; Sterling Commerce v Iliff at [42], 392. The applicant accepted that this is the appropriate test.

15    I will refer to s 28B of the SD Act, which proscribes sexual harassment, later in these reasons.

16    By s 106 of the SD Act, an employer will be vicariously liable for acts done by an employee in contravention, amongst other things, of ss 14 and 28B unless the employer establishes that it took all reasonable steps to prevent the employee from doing acts of the unlawful kind (subs (2)). SYC did not seek to invoke this proviso. It denied that the conduct alleged against Mr Edginton, Mr Furniss, Ms Gillies, Mr Dyer and Ms England had occurred but acknowledged that if, contrary to that denial, the conduct had occurred, it would be liable pursuant to s 106 of the SD Act.

17    The Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) provides the means of redress for conduct which is made unlawful by Part II of the SD Act. Section 3(1) of the AHRC Act defines “unlawful discrimination” to include any acts, omissions or practices which are unlawful under (relevantly) Part II of the SD Act. Sections 14 and 28B of the SD Act, which proscribe “sexual discrimination” and “sexual harassment” respectively, are contained within Part II of that Act.

18    A complaint of unlawful discrimination is to be dealt with initially by the President of the Australian Human Rights Commission (AHRC) (s 46PD). If the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation, the President may terminate the complaint (s 46PH(1)). Once a complaint is terminated, a complainant may apply to this Court under s 46PO(1) of the AHRC Act. That is what the applicant has done in the present case.

19    The evidence did not disclose the precise nature or origins of SYC’s corporate status. It was not suggested that the provisions in the SD Act and the AHRC Act were inapplicable to it.

Statutory provisions: the FW Act

20    I will identify the relevant provisions of the FW Act when determining the applicant’s claims under those provisions.

The witnesses

21    The applicant gave evidence and, in addition, adduced evidence from Mr Saunders and Ms Poppy, both of whom were previously employees of SYC.

22    In many respects, the applicant presented well as a witness. She was willing to answer questions directly and, on occasions, to make concessions which were seemingly against her interests. However, I consider that the applicant’s evidence was coloured significantly by her belief that she had been targeted for dismissal because of her pregnancy, a belief which I consider to be erroneous. There were several matters on which I consider that the applicant’s evidence was affected by a retrospective rationalisation of the circumstances to fit or to support this erroneous belief. The effect is that I consider significant portions of the applicant’s evidence to be unreliable.

23    I consider the evidence of Mr Saunders to be reliable and will refer in the course of these reasons to the evidence of Ms Poppy.

24    At the commencement of the trial, the applicant sought leave to adduce evidence, pursuant to s 97 of the Evidence Act 1995 (Cth), from two witnesses: Ms Poppy and Ms Curnow. This was tendency evidence. I refused leave altogether in relation to the proposed evidence from Ms Curnow and granted leave in respect of a portion only of the foreshadowed evidence of Ms Poppy. I said that I would give reasons for that ruling when delivering these reasons. The reasons for the ruling are published as Stanley v Service to Youth Council Incorporated (No 2) [2014] FCA 644.

25    SYC adduced evidence from its Chief Executive Officer, Mr Edginton, its former Chief Financial Officer, Mr Matthews, its Chief Operating Officer, Mr Furniss, its Manager – Property and Assets, Ms England, its Human Resources Advisor, Mr Dyer, and its Executive General Manager – People and Culture, Ms Gillies. I regarded the evidence of Mr Edginton, Mr Matthews, Mr Dyer and Ms Gillies as generally honest and reliable and, for the most part, I accept the evidence of Mr Furniss and Ms England.

Background

26    Most of the matters which I recount in this section of the reasons were non-contentious. When necessary, I will identify areas of contention and make findings concerning them.

27    SYC is a not-for-profit organisation which commenced operations in 1958. Its purpose is the assistance of young disadvantaged persons. SYC provides assistance to young people in obtaining employment, housing, training and provides “well-being services”.

28    Over the last decade or so, SYC has experienced considerable growth. It now has operations in South Australia, Victoria, New South Wales and Queensland, and employs some 450 persons. SYC has 39 housing units and 20 houses under management.

29    SYC’s Helping Young Persons Achieve (HYPA) Division provides temporary housing for young people at risk of becoming homeless.

30    The applicant commenced employment at SYC on 16 November 2009 in a position entitled “Project Manager – Facilities Management”. Initially, her employment was for a fixed term but she was made permanent on 13 September 2010. At the same time, her position was re-described as “Facilities Manager”. The applicant’s duties as Facilities Manager included managing and maintaining the premises of SYC; establishing and delivering all facilities-related services (such as cleaning, preventative maintenance and attending to breakdowns) at over 30 individual sites in Adelaide and Melbourne; hands-on operational management of each site; developing specifications for, and the assessment of, contract tenders; assessing and engaging contractors and suppliers; identifying and assessing occupational safety hazards; and undertaking audits to ensure compliance with applicable legislation and regulations. At the time of the applicant’s termination, her salary was $71,428 per annum.

31    Before 11 February 2011, the applicant reported to Mr Lemmey, SYC’s Corporate Services Manager. Mr Lemmey had responsibility for the management of both the Property and Assets Department (the P and A Department) and the Information and Communications Technology Department. Mr Lemmey reported directly to Mr Edginton, the CEO.

32    The P and A Department, in which the applicant worked, comprised three staff, being Mr Lemmey, the applicant and a Mr Ellbourn, who had the title “Property and Infrastructure Coordinator”.

33    Mr Lemmey resigned from his employment at SYC on Friday, 11 February 2011. Mr Furniss assumed responsibility for the P and A Department, with the effect that the applicant and Mr Ellbourn then reported to him.

34    The applicant said that, on the day of Mr Lemmey’s departure, she informed Mr Furniss of her pregnancy, and of her intention to take parental leave closer to her due date. She said that Mr Furniss responded by saying “congratulations” and that he was “shocked”. The applicant said that Mr Furniss then made the remarks which are the subject of her sexual harassment claim, which I will detail later.

35    The applicant also complained of Mr Edginton’s conduct at the time she announced her pregnancy and thereafter. She said that at the morning tea on 11 February to farewell Mr Lemmey, she began telling colleagues that she was pregnant. She said that Mr Edginton was standing within earshot of the group whom she told of the pregnancy. Although the other employees congratulated her on the pregnancy, Mr Edginton did not do so and did not join in the conversation. The applicant said:

I remember feeling awkward about his lack of response; I didn’t expect “gushing” but his total lack of response made it seem like I had done something wrong.

36    The applicant went on to say that Mr Edginton’s attitude towards her changed after her announcement of her pregnancy. She claimed that she and Mr Edginton had often had “chats”, but that this did not occur after her announcement. This made her feel “awkward, uncomfortable and embarrassed” around Mr Edginton. In her cross-examination, the applicant acknowledged that the “chats” were in the nature of exchanges of pleasantries when she and Mr Edginton passed one another incidentally in the office and that her work relationship with Mr Edginton had not been close.

37    Mr Edginton did not recall the applicant announcing her pregnancy at Mr Lemmey’s farewell. He acknowledged that he may have heard at that time of her pregnancy but said that his absence of reaction, as described by the applicant, was consistent with the limited nature of his relationship with her at the time. He denied that his attitude towards the applicant had changed because of the announcement of her pregnancy.

38    I accept Mr Edginton’s evidence on this topic. I am satisfied that, as CEO, he did not have the kind of contact or relationship with the applicant in February 2011 which would have made it natural for him to offer congratulations to her so that any inference could reasonably be drawn from his omission to do so. I consider that this aspect of the applicant’s evidence is an example of her retrospective rationalisation of events so as to give them a more sinister connotation than is appropriate.

39    As already noted, Mr Furniss, the Chief Operating Officer, assumed responsibility for the P and A Department after Mr Lemmey’s departure. SYC contemplated that this would be a temporary arrangement and that, after the implementation of a review of its information and communications technology requirements and the recruitment of a new manager, responsibility for the P and A Department would pass to Mr Matthews, the CFO. In essence, SYC proposed altering the role previously performed by Mr Lemmey so as to make it more “operational”. Mr Lemmey’s replacement would not have responsibility, as did Mr Lemmey, for information and communication technology.

40    In April 2011, SYC advertised the position of “Property and Assets Manager”. Ms England was the successful applicant and commenced on 1 June 2011.

41    On 19 May 2011, the applicant submitted her request for parental leave. This was for annual leave commencing on 1 August 2011, paid parental leave under the Paid Parental Leave Act 2010 (Cth) commencing on 19 September 2011 and, in effect, unpaid leave commencing on 23 January 2012. SYC granted that request.

42    In the period between Ms England’s commencement on 1 June 2011 and the applicant’s departure on leave on 1 August 2011, the P and A Department comprised Ms England, the applicant and Mr Ellbourn. During this period, Ms England was familiarising herself with the functions of the P and A Department. She said that she was assessing an appropriate employment structure by which to carry out those functions. Ms England reported to Mr Matthews.

43    On 22 June 2011, SYC advertised internally and externally for a Property and Assets Coordinator. The advertisement indicated that the advertised position was “a 12 month parental leave relief position”. Ms England said (and I accept) that she had not then had sufficient time to determine how best to structure the P and A Department for the long term. Given the applicant’s pending parental leave, her recommendation was that Mr Ellbourn should “step up into” the applicant’s role and for SYC to replace Mr Ellbourn during the applicant’s absence. Mr Matthews approved that course of action. Hence, the advertisement of 22 June 2011 related to Mr Ellbourn’s then position but properly described it as a parental leave relief position. The position was available only because Mr Ellbourn was filling the applicant’s position during her absence on parental leave.

44    However, SYC did not proceed with the recruitment of a Property and Assets Coordinator. During the interview period, Ms England formed the view that a different structure was appropriate. She considered that both Mr Ellbourn and the applicant spent too much time performing routine administrative work and that the division of roles between them was inappropriate. Accordingly, Ms England recommended that, instead of recruiting a Property and Assets Coordinator, SYC employ someone to provide administrative assistance. Mr Matthews approved this recommendation and a Ms Young was employed as the administrative assistant. Ms Young commenced on 3 August 2011. Her salary, being of the order of $50,000 per annum, was more than $20,000 less than that of the applicant. Ms Young’s letter of appointment specified that her employment was “for a period of up to 12 months depending on the return of the employee on parental leave”. That employee was the applicant.

45    Ms England said, and I accept, that after the commencement of Ms Young, the P and A Department operated in a tiered manner: in a broad sense, she performed the more complex tasks; Mr Ellbourn, tasks at a middle level of complexity; and Ms Young, administrative tasks supporting both. I accept that the P and A Department continued in this three-tiered way until (and after) the termination of the applicant’s employment.

46    The applicant was aware of the changes in the P and A Department before commencing her leave. She said, and I accept, that they caused her concern. The matters causing her concern included her appreciation that the new manager’s position would incorporate a significant portion of her own duties. The applicant enquired of Mr Matthews whether she would still have a job to which she could return. Mr Matthews responded by saying that he could not answer that at that time. The applicant deposed that she then became “very concerned” about her job and “felt strongly that SYC was trying to get rid of [her]”.

47    The applicant enquired of Ms Downie, an HR Advisor at SYC, whether she would have a job to which she could return after her parental leave. Ms Downie gave advice to the applicant to the following effect:

SYC must hold your position open, otherwise they will need to find you an alternative role.

…

You can take a maximum of one year off first and SYC must keep your job for you. Then, if you wanted to, you could apply for another 12 months off. If you want to come back part-time, SYC must try to accommodate this.

48    Although these remarks appear to have been of a reassuring kind, the applicant deposed:

I was very scared, hurt and humiliated by this time. I felt that SYC were not even trying to hide their adverse treatment to me. They seemed to enjoy taking advantage of me during my pregnancy because I was never made to feel comfortable in my role after announcing my pregnancy.

In cross-examination, the applicant said that it was Mr Matthews and Mr Furniss who she considered were enjoying taking advantage of her.

49    When commencing her leave, the applicant was required to hand back to SYC her mobile phone and her building access, car park access, and company credit cards. She said that she felt “a little offended” at being required to hand over these items, especially as the first part of her leave was annual leave. She claimed that her entitlement to the car park was a term of her contract of employment.

50    As previously noted, the applicant’s child was born on 20 August 2011.

51    On 27 October 2011, the applicant noted that she was due to provide an updated police clearance and wished to attend to that whilst she was still on leave. She sent an email that day to Ms England enquiring whether she could organise the clearance whilst on leave. Ms England responded the same day, informing the applicant that she would make enquiries as to what needed to be done. As will be seen later, Ms England had already decided by this time, or within a further few days, that the applicant’s position as Facilities Manager was no longer required. However, she did not inform the applicant at that time of that decision and did not ever provide the details concerning the obtaining of the police clearance which the applicant had requested.

52    In December 2011, the applicant began to contemplate returning to work earlier than the previously foreshadowed date of 31 July 2011. On 12 December 2011, she sent an email to SYC addressed to Ms England asking if it would be possible for her to return to work in April or May 2012, and enquiring whether she could return on a part-time basis, having regard to her proposed childcare arrangements.

53    Ms England responded with an email on 19 December 2011 indicating that she would arrange a meeting in the New Year to discuss return to work options.

54    When the applicant had not heard from Ms England by 25 January 2012, she sent a further email to Ms England, asking:

Just wondered if you were still wanting to meet to discuss me returning to work?

55    Unbeknown to the applicant, Ms England and Mr Matthews had decided, by at least 4 November 2011, that the position of Facilities Manager was redundant. The applicant first learned of that decision at a meeting on 7 February 2012, which Ms England arranged in response to the applicant’s email of 25 January.

56    The participants in the meeting on 7 February 2012 were the applicant, Mr Dyer and Ms England. Ms England told the applicant that SYC had conducted an organisational review of its management services operations and that her position as Facilities Manager had been selected on a “preliminary basis” for redundancy. This was because the P and A Department was operating efficiently with the existing employment structure, and the role which she had previously performed as Facilities Manager had been absorbed into the other roles within the Department. At the meeting, the applicant was given a letter, signed by Ms England, the substantive part of which was as follows:

Service to Youth Council has recently conducted an organisational review of its Management Services operations. As a consequence we advise that your position of Facility Manager has been selected on a preliminary basis for redundancy. This letter, however, does not constitute notice of termination of employment.

Accordingly we advise that you are required to attend a meeting with me at 10.00am on Tuesday, 14 February 2012 here at Level 6, 50 Grenfell Street, Adelaide. The purpose of the meeting will be to discuss the possible redundancy of this position and to discuss any alternatives to the termination of your employment as well as any proposals and suggestions that you may have. We will also discuss other ways of mitigating any adverse effects should no alternative be agreed. You may bring a support person to the meeting if you prefer.

Should it not be possible to reach an alternative agreement, you will be provided with pay in lieu of notice and any severance payments in respect of your termination on the grounds of redundancy.

We would ask that you put any submissions or suggestions that you may have in writing to us by no later than 5.00pm on Monday, 13 February 2012.

Please contact Lee Dyer at any time prior to the meeting on 14 February 2012 if you wish to discuss matters further.

57    The applicant asked if the Administrative Assistant’s position being performed by Ms Young was available, but was told it was not. She was also given a print-out of SYC’s current vacancies and asked to consider whether she was interested in applying for any of those.

58    The applicant attended the further meeting on 15 February (rescheduled from 14 February) with her solicitor, Ms Murray. SYC’s lawyer, Mr Short, was also present. Ms Murray indicated that the applicant did not regard any of the alternative roles as being suitable, having regard to her skills and qualifications. Mr Short responded by saying that SYC agreed and that, because no other suitable position could be found, SYC was making the position of Facilities Manager redundant and was terminating the applicant’s employment. Ms England then read a prepared statement and provided a letter to the applicant dated 15 February 2012. The letter had the same content as the statement read by Ms England. The body of the letter was as follows:

We refer to our earlier meeting of 7 February 2012.

In the interim period we have been unable to identify any alternative position which is reasonably suitable to your skills and experience. You have also been unable to provide us with any suggestions or suitable alternative positions for us to consider.

We now confirm that we have decided to make your position of Facility Manager redundant effective immediately. This decision in no way reflects upon your work performance or conduct. This decision is based purely on operational grounds.

As a consequence, we advise that your employment with SYC will cease effective immediately. Severance pay, payment in lieu of notice and any annual leave owed to you will be paid out by electronic transfer to your nominated bank account.

We would like to thank you for your contribution to SYC and to wish you all the best for the future.

59    The applicant’s employment was then terminated. She received a payment comprised of her annual leave credit, four weeks’ pay in lieu of notice, and a severance payment of four weeks’ pay.

60    I will return to relevant events occurring subsequent to the termination later in these reasons.

The claim of sexual harassment

61    The applicant’s claim of sexual harassment relates to the comments said to have been made by Mr Furniss on 11 February 2011 when she first informed him of her pregnancy. Two issues arise in relation to this claim: did Mr Furniss make the comments alleged; and, if so, should his comments be characterised as sexual harassment?

62    The applicant’s evidence was that, after Mr Furniss had responded to the news of her pregnancy with “congratulations” and by saying he was “shocked”, he had then told her not to make any “hasty” commitment as to the date on which she intended to return to work because she may decide later that she would like more time off, or because she may decide that she did not wish to return to work at all. The applicant’s evidence-in-chief (given in the form of an affidavit) then continued:

59.    … He explained that this was because when his wife … had their first child, that she found it difficult to return to work and ended up not returning to her employment and [became] a stay-at-home mum. He went on to tell me that he and his wife had earlier considered having another child but felt that it was probably now too late as their son … was four years old and the age gap would be too great. His tone of voice seemed to be one of disappointment, and I felt very uneasy.

60.    I was quite surprised by Mr Furniss’ comments. I remember thinking that he should not think that just because his wife did not cope with returning to work, it does not mean that I can’t cope and return to work, and I thought it was offensive that he seemed to make an assumption about my ability or desire to return to work after having my baby. …

61.    I remember feeling it was totally inappropriate for Mr Furniss to be speaking to me in this way and that he should know better, as the COO, than to have discussions with me that could easily make me think that he doubted my ability or desire to return to work after maternity leave.

62.    I didn’t say anything as I remember thinking that I did not want to be seen as being a troublemaker, but it felt by virtue of telling him about my pregnancy that I already was a troublemaker, or a nuisance in some way.

63.    I remember feeling violated by the COO’s comments to me concerning my pregnancy. I knew that this was a conversation that a male employee would never have to have with Mr Furniss. I felt “sexualised”. I felt “harassed”. I felt that I had been “sexually harassed”. I felt violated. I also did not care to know that he and his wife had considered having another child. I did not ask him for the information and felt he offered it to me too freely. Mr Furniss’ comments were also given in a tone that made me feel concerned and not at all like he was trying to be helpful or understanding.

63    The applicant said that she had not made any complaint to anyone within SYC concerning the comments of Mr Furniss. She explained that she had felt that it was too difficult to do so and may compromise her employment further. The applicant also said:

I felt that Mr Furniss’ comments could be seen to have a superficial appearance of trying to care or reaching out to me to show support, but this was a veil for his true intentions, which was that I not return to the workplace.

64    To support her claim that Mr Furniss had made the impugned comments, the applicant led evidence from Ms Poppy. Ms Poppy had previously been employed by SYC in the position of Marketing Manager. Her employment was terminated on 25 June 2010 (with effect from 23 July 2010). As in the applicant’s case, the termination occurred while Ms Poppy was on parental leave and was on the stated ground of redundancy. Ms Poppy has also brought proceedings in this Court in relation to that termination.

65    Ms Poppy commenced parental leave on 18 February 2010. She deposed to a conversation with Mr Furniss not long before she commenced that leave. She said that Mr Furniss asked her “what my plans were and how long I was planning to have off work”. Ms Poppy said that in the course of the conversation Mr Furniss said words to the following effect:

Don’t commit to a return to work date. … Don’t make a decision too quick, you might need longer off.

And later:

My wife couldn’t cope and quit work.

Ms Poppy said that she responded with words to this effect:

I know that I will want to come back. I don’t want to put my career on hold. I can be a mum and have a career. I know what I am like and I will return after having four months off. Financially I need to return to work.

66    There are some obvious similarities between the statements which each of the applicant and Ms Poppy attribute to Mr Furniss. Those are the statements concerning not making an early decision as to the date of return to work, the foreshadowing that each may wish to have longer off work than they originally contemplated, and the statement that Mr Furniss’ own wife had found it difficult to cope and ultimately had not returned to work at all.

67    Mr Furniss acknowledged that it was likely that he had congratulated the applicant on her pregnancy, but denied making the remainder of the remarks attributed to him. He said that, prior to February 2011, he had had minimal involvement with the applicant; that he had not had any expectations about her becoming pregnant or otherwise; that there was no reason for him to be “shocked” by her announcement; and that he had not spoken at all with the applicant about his own wife and son. Mr Furniss also said that an additional reason for him not having made the statement to the effect that his wife had been unable to cope and had ceased work after the birth of his son was that it was not true. He said that she had in fact returned to work some six months after the son’s birth and had remained in part-time work ever since.

68    There was a difference between the applicant and Mr Furniss as to whether their conversation had occurred on 11 or 15 February 2011. Nothing turns on the precise date of the conversation, although I think it more likely that the applicant is correct.

69    In relation to Ms Poppy’s evidence, Mr Furniss said that he had no recollection of making any comments at all regarding her pregnancy. He said that, as in relation to the applicant’s claim, the statements which Ms Poppy attributed to him were not the sort of things that he says and that he regarded the suggestion that he had made them as “offensive”.

70    In some cases, the presence of striking similarities in the evidence of independent witnesses when there has been no possibility of collusion or influence is highly probative that the alleged events did occur. That is so, because the similarities in the evidence of witnesses who are independent of one another raises, as a matter of commonsense and experience, the objective improbability of the events having occurred other than as claimed by the witnesses (Hoch v The Queen (1988) 165 CLR 292 at 294-5; Pfennig v The Queen (1995) 182 CLR 461 at 481-4, 507).

71    However, the applicant and Ms Poppy were not independent witnesses and there has been the opportunity for the evidence of one to have influenced the evidence of the other. The applicant acknowledged that she had discussed the comments which she attributes to Mr Furniss with Ms Poppy. Ms Poppy acknowledged that she and the applicant had “provided one another support” in relation to their terminations by SYC and that they had spoken in detail about what had happened to each of them, even before lodging their complaints with the AHRC. This means that there is a significant risk that their respective accounts have been affected, consciously or unconsciously, by their discussions.

72    These circumstances mean that the striking similarity between the applicant’s and Ms Poppy’s evidence does not have the significance which would otherwise attach to it. That does not mean of course that the evidence has no significance.

73    SYC also drew attention to the circumstance that the remarks attributed to Mr Furniss had not been part of the applicant’s original complaint to the AHRC (which had been made on the applicant’s behalf by Ms Murray) on 18 June 2012. It submitted that the fact that the applicant did not raise Mr Furniss’ comments in that complaint is significant given her description of her contemporaneous reaction to those remarks, namely, that she had felt “violated”, “sexualised” and “sexually harassed” by his comments.

74    The premise for this submission of SYC is correct. The original complaint to the AHRC made no reference to the comments now alleged to have been made by Mr Furniss. The AHRC was not told of his alleged remarks until 17 October 2012. It is possible that the applicant also raised the remarks at the conciliation conference held on 10 October 2012, but she was uncertain about that.

75    I consider that this submission of SYC has considerable force. If the remarks had been made and the applicant had had the reaction which she described, I would have expected Mr Furniss’ comments to have formed part of the original complaint. That is especially so in light of the applicant’s claim that she had reached the conclusion, at the end of the conversation with Mr Furniss, that he intended to prevent her from returning to work and was being insincere in his comments to her. In those circumstances, the fact that the applicant did not refer at all to the conversation with Mr Furniss in her complaint to the AHRC militates against a finding that Mr Furniss did make all of the remarks which the applicant attributes to him.

76    I accept Mr Furniss’ evidence that his wife had returned to work some six months after the birth of their son. That being so, it is improbable that he made a statement to either the applicant or Ms Poppy to the effect that his wife had had difficulty in coping and ultimately had not returned to work, and I find that he did not. That does not exclude the possibility that Mr Furniss may have said something to the effect that his wife had resumed on part-time work rather than full-time work because of difficulties which she had experienced, but that is not the form of statement which either the applicant or Ms Poppy attributed to him.

77    I also consider that it is improbable, in the context of the applicant’s announcement of her pregnancy, that Mr Furniss would have discussed the family plans of his wife and himself, or the reasons for their not having had a further child and, again, I find that he did not.

78    I reject the applicant’s evidence that Mr Furniss made the statements which she attributed to him in [59] of her affidavit quoted earlier in these reasons.

79    My rejection of these aspects of the applicant’s evidence could lead naturally to a rejection of the whole of her evidence concerning the statements said to have been made by Mr Furniss. However, I consider that the evidence of the applicant and Ms Poppy that Mr Furniss said words to the effect that they should not be committing themselves firmly to a return to work date, and that they should allow for the possibility that they may wish to have more time off work than they originally planned, is in a different category. Statements to that effect are, in my opinion, consistent with the general approach which Mr Furniss described in the affidavit containing his evidence-in-chief:

My approach to parental leave generally is to tell people that they should keep in touch regarding their return to work and communicate regarding when they would like to do so. This is a more practical approach than asking for a set return date, as this date is often difficult to predict.

It is therefore plausible that Mr Furniss did make remarks of this particular kind and I am prepared to find that he did.

80    This leads to consideration of the second issue: do Mr Furniss’ statements to the applicant that she should not make a “hasty” commitment to a return to work date because she may decide later that she would like more time off, or not to return to work at all, constitute proscribed sexual harassment?

81    Section 28B(2) of the SD Act makes it unlawful for an employee to harass sexually a fellow employee.

82    “Sexual harassment”, for the purposes of s 28B, is defined in s 28A as follows:

(1)    For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a)    the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)    engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

(1A)    For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:

(a)    the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;

(b)    the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

(c)    any disability of the person harassed;

(d)    any other relevant circumstance.

(2)    In this section:

conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

83    The applicant did not contend that Mr Furniss’ remarks should be characterised in terms of subs (1)(a). She contended instead that his remarks amounted to “unwelcome conduct of a sexual nature” in circumstances in which a reasonable person would have anticipated the possibility that she would be offended, humiliated or intimidated and therefore attracted subs (1)(b).

84    Section 28A(2) elaborates the expression “conduct of a sexual nature” to make it plain that it includes statements of a sexual nature, but the SD Act does not otherwise define the expression. In context, it appears to connote conduct involving or evidencing sexual attraction, instinct, activity or relationships. The expression may have a broad scope, and a wide range of matters may be able to be characterised as constituting conduct of a sexual nature. However, the expression is not without limits. Essentially it requires that the conduct be characterised as sexual, or sexually-related. In Poniatowska v Hickinbotham [2009] FCA 680 at [294], Mansfield J said that the term “conduct of a sexual nature” involves “some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour”. Mansfield J did not, however, attempt to set the outer bounds of the expression “conduct of a sexual nature”.

85    Whether conduct should be so characterised is to be determined objectively and does not depend upon the subjective intention of the actor.

86    The objective standard incorporated in the second limb of the definition relates to the position of the actor, and not to the response or reaction of the subject of the conduct. The question is whether a reasonable person would have anticipated that the subject would be offended, humiliated or intimidated.

87    The applicant’s counsel emphasised that the expression “conduct of a sexual nature” is to be interpreted broadly but beyond making the bald submission that the comments were of a sexual nature, did not indicate how the comments could be characterised in that way.

88    In my opinion, Mr Furniss’ statements to the applicant about her decisions in relation to a return to work cannot reasonably be characterised as “conduct of a sexual nature” in relation to the applicant. Those comments did not involve or evidence sexual attraction, instinct, activity or relationships. Instead, they appear to be in the nature of a well-intentioned, if unsolicited, suggestion to the applicant concerning her own interests. Even if from the applicant’s perspective the suggestion was gratuitous and unwanted, it was not conduct of a sexual nature.

89    I specifically reject the characterisation of Mr Furniss’ remarks for which the applicant contended in the written opening of her case, namely, that the remarks should be understood as a lecture by Mr Furniss to the applicant as to the negative impact of her pregnancy on her career and that it was “an error on [her] part to exercise her reproductive rights, or at least so far as her employment was concerned”. The remarks which I have accepted were made do not warrant such a characterisation.

90    Accordingly, I reject the applicant’s claim that Mr Furniss’ remarks to her on 11 February 2011 amounted to sexual harassment and reject her claim that SYC is responsible for that conduct.

91    In his final submissions, counsel for the applicant also submitted that Mr Furniss’ comments on 11 February 2011 constituted discrimination on the ground of the applicant’s pregnancy, parental leave and family responsibilities. Counsel relied for this submission on s 14(2)(d) of the SD Act, contending that the remarks had subjected the applicant to a detriment on account of the proscribed matters. The detriment was said to lie in the emotional effect which the remarks had on the applicant because they “made her feel like an assumption was being made about her ability or desire to return to work after having a baby”.

92    The applicant had not pleaded this claim in the ASC. Nor did counsel indicate in the written or oral opening that the statements of Mr Furniss should be characterised in this way. This indicates by itself that the submission should be rejected.

93    I consider, however, that the submission should fail in any event. First, I do not accept that Mr Furniss’ remarks left the applicant feeling “violated”, “sexualised”, “harassed” and “sexually harassed”, or as though some assumption was being made about her ability to return to work after having a child. In my opinion, the applicant’s characterisation of her feelings in that way is a significant exaggeration and is a product of a retrospective reconstruction. I accept that the applicant may well at the time have considered the remarks to be gratuitous and unwanted, but no more than that. I consider it probable that the applicant’s reflection on the injustice which she perceives SYC has done to her by terminating her employment has led to an embellishment in her own mind of her reaction at the time to the remarks of Mr Furniss.

94    Secondly, I am not satisfied that the emotional effect claimed by the applicant amounts to a detriment of the kind to which s 14(2)(d) refers. There are circumstances in which sexual harassment will also amount to sex discrimination (Elliott v Nanda [2001] FCA 418 at [127]; (2001) 111 FCR 240 at 281; Leslie v Graham [2002] FCA 32 at [73]; Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 274-7; cf Gilroy v Angelov [2000] FCA 1775 at [102]; (2000) 181 ALR 57 at 75), including when the harassment subjects the employee to detriment in the form of a hostile, demeaning or oppressive workplace environment (Kraus v Menzie [2012] FCAFC 144 at [84]). But the detriment to which subs 14(2)(d) refers must affect the applicant’s employment in some respect: Kraus v Menzie at [81]-[84]. On my findings, the applicant did not suffer a detriment of that kind.

95    For these reasons, the applicant’s alternative claim based on the remarks attributed to Mr Furniss is rejected.

Termination of employment

96    The applicant’s principal claim was that SYC had contravened s 14 of the SD Act by terminating her employment on the ground of her pregnancy, parental leave or family responsibilities. The submissions made on her behalf in relation to this claim tended not to distinguish between ss 5(1), 7(1) and 7A of the SD Act, but nothing turns on that presently.

97    The applicant’s claim that she was terminated by reason of her pregnancy, parental leave and family responsibilities was based on an accumulation of inferences which she submitted should be drawn from conduct of the respondent in the period between 11 February 2011 and 15 February 2012. The applicant acknowledged that there was no direct evidence of discrimination and that her case was a circumstantial one.

98    I commence by identifying the principal matters on which the applicant relies.

99    First, the applicant pointed to the fact that her employment at SYC had been regarded as satisfactory, evidenced by her having been made permanent on 13 September 2010, by the fact that she had been given the title “Facilities Manager”, and by her satisfaction of the key performance indicators relating to her position.

100    Secondly, the applicant relied on the reaction of Mr Furniss and Mr Edginton on 11 February 2011 when she announced her pregnancy. I have already made findings concerning their conduct and state now that I do not regard the applicant’s evidence of their reactions (in Mr Edginton’s case, absence of reaction) as supporting the inferences for which the applicant contends.

101    The applicant also relied on one further aspect of her conversation with Mr Furniss on 11 February 2011. She said that, during the conversation, Mr Furniss said, with reference to Mr Ellbourn, “it looks like his job is now safe” and went on to suggest that he had had plans to look at Mr Ellbourn’s future within SYC having regard to his work performance and the difficulties which the applicant had experienced in managing him. The applicant said that she “instantly knew” what Mr Furniss meant by the statement “it looks like his job is now safe”, but did not indicate what her understanding had been.

102    Mr Saunders, who was called by the applicant, gave evidence that Mr Furniss had spoken to him about some concerns relating to Mr Ellbourn’s work performance. However, the Court did not hear any detailed evidence of those concerns, and did not hear evidence from Mr Ellbourn at all. In those circumstances, I make no finding as to whether any concerns which Mr Furniss had were justified.

103    I am willing to accept that Mr Furniss did make a remark concerning Mr Ellbourn of the kind which the applicant attributed to him but find that it meant no more than that SYC may put to one side its concerns about Mr Ellbourn in order that it may have the benefit of his experience in the period when it would not have the applicant’s services. I reject the suggestion that it supports an inference that Mr Furniss had decided then and there that the applicant’s employment should be terminated because of her announced pregnancy and impending parental leave and family responsibilities, and Mr Ellbourn be retained instead.

104    Thirdly, the applicant relied upon two other conversations with Mr Furniss. In March and April 2011, when she enquired whether SYC would advertise to fill her job while she was on leave, Mr Furniss told her that the Manager’s position would become more operational so that it could incorporate most of her duties while she was on parental leave, that Mr Ellbourn would “step up” into her role, and that it would be his position which would be advertised as it would be easier to fill. The applicant regarded this plan of SYC as being threatening to her position.

105    The applicant also said that at about the same time Mr Furniss counselled her again about not committing too soon to a return to work, repeating that his wife had found it difficult to return to her employment and had not returned. For the reasons given earlier, I do not accept that Mr Furniss made a remark of that kind. I accept Mr Furniss’ evidence that his wife had returned to work after the birth of their son and, consequently, regard it as improbable that Mr Furniss would have made a remark of the kind which the applicant imputes to him.

106    Fourthly, the applicant viewed with suspicion SYC’s decision to make the new Manager’s role more operational and for it to absorb approximately 70% of the duties which she had performed. She said that she felt as though she was being “managed” out of the job. The applicant referred to circumstances which added to that feeling: there had never previously been a suggestion that Mr Lemmey’s role required restructuring; SYC did not seek feedback from her about its plans; SYC did not offer her any reassurance when implementing its plans; and the regular discussions which previously she had had about career advancement within SYC ceased. The applicant deposed to being “adamant” that the only reason for the changes was her announced intention to take maternity leave.

107    I state now my conclusion that the cessation of discussions about the applicant’s career advancement is a matter of no consequence. The applicant acknowledged in her cross-examination that it had been Mr Lemmey who discussed these matters with her. I consider it quite understandable that these discussions did not continue after his departure on 11 February 2011. From that date, the applicant had Mr Furniss as a temporary supervisor until 1 June 2011, and Ms England was her manager for only two months before the applicant commenced her own leave on 1 August. The applicant acknowledged that in that period Ms England was familiarising herself with the functions of the P and A Department and an appropriate structure for it. In those circumstances, I consider it understandable that neither Mr Furniss nor Ms England engaged in discussions with the applicant about her career advancement.

108    Fifthly, the applicant referred to Mr Matthews’ response (recounted earlier in these reasons) when she enquired of him whether she would still have a job at the expiration of her parental leave.

109    Sixthly, the applicant referred to Ms England being employed on a permanent basis and commencing almost immediately to perform duties previously carried out by her. Although Ms England’s title was “Property and Assets Manager”, the applicant considered that much of her day-to-day work was facilities management. Again, the applicant regarded this as a redesign of her Manager’s role because of her pregnancy and pending parental leave.

110    Next, the applicant referred to the requirement that, immediately before commencing her leave, she hand back her mobile phone and building access, car park access, and SYC credit cards.

111    Eighthly, the applicant pointed to the fact that, in December 2011, her access to the SYC email address was withdrawn. She assumed that this was because her password had been changed.

112    Next, the applicant submitted that the absorption of her duties into the role of others occurred only because she embarked upon parental leave. She contended that if she, like Mr Ellbourn, had remained at work that absorption would not have occurred. In this respect, the applicant proposed the application of a “but-for” test of causation and, in particular, a test which did not involve an assessment of SYC’s treatment of an appropriate comparitor.

113    These were the matters on which the applicant relied (in addition to her critique of SYC’s case). They have to be considered having regard to the whole of the evidence, including that adduced by SYC.

114    SYC’s case was that the applicant’s pregnancy, parental leave and family responsibilities had nothing to do with the termination of her employment. It said that the applicant’s position became redundant in consequence of its restructuring of the P and A Department and that she was retrenched because there was no suitable alternative position for her.

115    I accept in substance SYC’s case concerning the redundancy. The decision to do so is made easier by the applicant’s acceptance in her evidence that her position had become redundant and that the redundancy had come about because her role had been absorbed by others in the P and A Department at SYC. I am satisfied, in any event, that a number of changes had occurred at SYC which, although contemporaneous with the applicant’s pregnancy and parental leave, were not, other than in minor respects, a consequence of her pregnancy.

116    The changes resulted from the departure of Mr Lemmey on 11 February 2011, the SYC review which followed his departure and the decisions made in the implementation of the review. When Mr Lemmey announced his resignation, SYC reviewed its Corporate Services Division, which comprised the P and A Department and the Information and Communications Technology Department. Mr Lemmey had headed both departments. KPMG was involved in the review of SYC’s information technology requirements.

117    The review continued until April 2011. SYC decided to change the role previously carried out by Mr Lemmey in two significant ways. First, it split the property and asset functions from the information and communications technology functions, creating two separate departments. Secondly, it resolved to recruit a specialist Property and Assets Manager (as well as a specialist IT Manager).

118    I accept the evidence of Mr Edginton, Mr Matthews and Mr Furniss about these matters. Specifically, I accept Mr Edginton’s evidence that, although Mr Lemmey’s resignation provided the occasion for the review, it was in fact prompted by the significant growth which SYC had experienced between 2008 and early 2011. That growth affected SYC’s requirement for information and communications technology services and also the demands on the P and A Department. In particular, SYC’s HYPA Housing Division was engaged in constructing, purchasing and managing properties. SYC determined that it should have a manager dedicated to the management of its property and assets, and that once such a manager had been engaged, he or she should be responsible to Mr Matthews, the CFO.

119    The SYC review, and the decisions to which I have just referred, took place at a time when SYC knew of the applicant’s pregnancy and of her anticipated parental leave. It took account of her pending absence in the decisions which it made, in particular, by planning for the new Property and Assets Manager to take over significant portions of the applicant’s duties in her absence. However, I am satisfied that this was incidental to the larger reorganisation which was being carried out, something which was entirely unrelated to the applicant’s pregnancy.

120    SYC advertised for a Property and Assets Manager with strategic property management skills. The applicant did not apply for that position. Ms England was the successful candidate.

121    I consider that the circumstance that the new Property and Assets Manager would not have to devote time to information technology matters, and, in addition to providing strategic skills, was expected to be more operational, made it almost inevitable that there would be some consequential re-organisation of the P and A Department. It was also a matter of practicality that, given the applicant’s departure on leave soon after Ms England’s commencement, she would, in the applicant’s absence, carry out some of her duties. However, it is unrealistic to infer that SYC put these arrangements in place as a means of managing the applicant out of her position altogether, and I am satisfied that that was not its purpose.

122    In this regard, I regard it as significant that, when SYC first sought cover for the applicant’s position, it advertised in a way making plain that the position offered was temporary only and that its duration depended upon the time of the applicant’s return from her parental leave. It was only in late June 2011 that Ms England considered that the P and A Department may be able to operate satisfactorily with a different structure. Even then, when Ms Young’s position was advertised, it was again made plain that the position was temporary because of the applicant’s parental leave. Those circumstances indicate SYC’s contemplation that the applicant would be returning, and I am satisfied that that was its intention.

123    In particular, I reject the applicant’s account in the following paragraphs of her affidavit of the effect on her of SYC’s advertisement of Mr Ellbourn’s position:

124.    My fears about my job were heightened when Brad Ellbourn’s job, being the Property Coordinator, was advertised on the SYC intranet as a ‘12 month position to cover maternity leave’. Brad was not expecting a child, nor was he expecting to take paternity leave so I had no idea why SYC advertised his position as being vacant due to ‘maternity leave’ or ‘cover maternity leave’. Although the title given to this job was ‘Property Administrator’ which was a slight change to his role as Property Coordinator, although again, it was the job description for Brad’s role.

125.    The publication of this job description was also embarrassing for me; I believe that most people I knew within SYC were aware that I was taking maternity leave but Brad’s position was being advertised. I couldn’t help but think that it looked like Brad was taking leave instead of me, and that we were somehow personally ‘connected’. I was concerned that [the] SYC advert for what had been Brad’s role carried a connotation that it was Brad from our department that was taking leave, and even that he was the father of my child. This may sound silly, but I though[t] the advertised vacancy notice saying Brad’s job was a maternity leave cover was silly, and offensive to me. I felt a complete lack of respect for me in my role and my impending maternity leave.

124    I am satisfied that the appointment of Mr Ellbourn to carry out the applicant’s duties was a sensible way of managing the position during her maternity leave. I am satisfied that SYC’s conduct in this respect was neither “silly” nor “offensive” to the applicant.

125    The evidence did not disclose explicitly what happened in relation to Mr Ellbourn’s filling of the applicant’s position when SYC implemented the three-tier structure in the P and A Department on 3 August 2011. However, SYC did, on 18 July 2011, confirm Mr Ellbourn’s appointment as Property and Assets Coordinator. I infer from that circumstance that, by at least 18 July 2011, SYC had determined that Mr Ellbourn would not be continuing to act in the applicant’s position.

126    I accept Ms England’s evidence that the three-tier structure involving her, Mr Ellbourn and Ms Young worked satisfactorily, leading her to conclude that the applicant’s role was no longer required in the P and A Department. In addition, she appreciated that there was a cost saving to SYC as the salary being paid to Ms Young was approximately $20,000 less than that of the applicant.

127    Ms England did not have authority to make a final decision concerning the composition of the P and A Department. She made a recommendation to her Manager, Mr Matthews, who agreed with her assessment.

128    Mr Matthews made the decision that the applicant’s position was surplus to needs and should be made redundant. He also decided that her employment should cease for that reason. I accept his evidence about those matters and his evidence that, in making the decision, he did not have regard to the applicant’s pregnancy, maternity leave or parental responsibilities. The evidence did not disclose precisely when Mr Matthews made that decision, but I am satisfied that it was at the end of October or the beginning of November (and, in any event, by 4 November 2011). Mr Matthews left the implementation of the decision to Ms England and Mr Dyer.

129    I have recorded earlier the course of events which followed.

130    The applicant’s case ultimately relied on a “but for” analysis. But for the pregnancy, birth and subsequent maternity leave, she would have continued at work at SYC and the restructure of the P and A Department would have occurred in that context. The restructure involved the deployment of those actually present and hence her absence from employment for parental leave purposes resulted in her disadvantage.

131    I accept that this characterisation of the course of events is appropriate. The difficulty for the applicant, however, is that it falls short of establishing discrimination of the kind contemplated by ss 7 or 7A of the SD Act.

132    As previously noted, ss 7 and 7A require more than a mere finding that an applicant suffered some disadvantage in employment by taking parental leave. Applicants must establish that their employer treated them less favourably than the employer has treated, or would treat, a person without family responsibilities or who was not pregnant in circumstances which are the same or not materially different. This requires assessment of the treatment of a comparitor. As previously noted, and as the applicant accepted, the appropriate comparitor in this case is a hypothetical similarly graded Facilities Manager with the applicant’s experience who took 12 months’ leave with SYC’s consent and had an equivalent entitlement to return to work.

133    Therein lies the difficulty for the applicant. There is no reason to suppose that such a comparitor would have been treated any differently by SYC than was the applicant. That is to say, it is the fact of the absence from work and not the reason for the absence which in either case results in the employee’s disadvantage. This means that the applicant does not establish disadvantageous treatment for a proscribed reason.

134    It seems that the applicant’s allegation that she had been “targeted” for dismissal right from the time that she announced her pregnancy was an attempt to surmount this difficulty. As already seen, in the final submissions, the applicant’s counsel abandoned that allegation. Even without that abandonment, the evidence satisfies me that the allegation is unfounded.

135    Given the serious nature of the allegation, it is appropriate that I record formally a finding that the applicant was not targeted for dismissal by any of the five named employees of SYC. I am also satisfied that none of them sought to bring about a circumstance in which the applicant’s employment would, inevitably, have to be terminated.

136    This ground of claimed discrimination accordingly fails.

Withdrawal of car park access

137    The applicant’s second claimed contravention of s 14 related to the withdrawal of her access to the SYC-funded city car park.

138    SYC required the applicant, at the commencement of her leave on 1 August 2011, to surrender her building access card, mobile phone, company credit card and her car park access card. The applicant contended that the latter amounted to unlawful discrimination on the basis of her taking parental leave.

139    The applicant claimed that unlimited use of a car park for which SYC paid, including use for personal purposes, was a term of her contract of employment. She also contended that the unlimited use entitled her to continued access to the car park during that part of her leave which was annual leave, but accepted that the entitlement did not continue during the balance of her parental leave.

140    It is not necessary for present purposes to make a finding as to whether access to a car park was a term of the contract of employment. Even if it was, one would still need to consider whether the entitlement continued during periods of leave.

141    Ms England described the circumstance in which the applicant was denied use of the car park during that portion of the leave which was annual leave:

[Ms Stanley] wanted to retain use of the car park while on annual leave. I said no. I told her that the car park is SYC funded and it is for use for employees doing SYC business. I take the same approach to anyone else. So, for example, I have been on four weeks leave – while I was away, I handed my car park card over to another employee to use. It had nothing to do with her being pregnant. It had to do with her going on annual leave and not needing the car park for work. I am not aware of it being written into her contract and I didn’t look. All I can say is that it was nothing to do with pregnancy. I take the same approach to anyone else who is going to be away from work for an extended period of time.

142    Mr Dyer also described SYC’s practice of requiring employees going on leave for more than a few days to return their work-related equipment, including their work mobile phone, company credit card and building and car park access cards.

143    I accept this evidence. I find that when SYC required the applicant to return her car park access card at the commencement of her leave it was acting in accordance with its usual practice in relation to all employees. This conduct, in relation to the applicant, did not amount to discrimination on the grounds of pregnancy, parental leave or family responsibilities as it did not constitute less favourable treatment of the applicant than of the hypothetical comparitor.

144    In his final submissions, counsel for the applicant acknowledged that even if this complaint of discrimination was upheld it would have no practical consequence because the applicant had not in any event suffered any detriment. I consider that the applicant’s complaint on this topic is one instance of her tendency to view any perceived slight or disadvantageous treatment in terms of unlawful discrimination.

Absence of prompt consultation

145    The applicant’s third claimed contravention of s 14 of the SD Act related to the lapse of time between SYC’s decision on the final structure of the P and A Department and its commencement of discussions with her on 7 February 2012.

146    As already noted, Mr Matthews made the final decision concerning the structure of the P and A Department in late October or very early in November 2011, and at least by 4 November 2011. Discussions with the applicant about the effect of that decision did not commence until her meeting with Mr Dyer and Ms England on 7 February 2012.

147    Mr Dyer explained SYC’s usual practice when it determined that redundancy was necessary as follows:

8.    … The ordinary practice is that once a decision has been made to make a position redundant, a meeting is promptly arranged with the person who holds the position to discuss the decision. The purpose of this meeting is to inform the employee that their position has been selected on a preliminary basis for redundancy and to give them a chance to provide feedback. While the business may have made a decision, this gives the position holder the chance to tell SYC why, if there is any reason, the position should not be made redundant.

9.    SYC considers what the employee has to say. The decision maker may change their mind. However, if they maintain their initial decision the business again meets with the relevant employee and implements the redundancy. The usual practice was for me to attend both meetings to assist the relevant manager.

148    Initially, Mr Dyer planned a meeting with the applicant on 23 November 2011. On 4 November, he prepared a letter for Ms England to send to the applicant notifying her of that meeting. However, Mr Dyer did not provide the draft letter to Ms England until 16 November. The lapse of time between 4 November and 16 November was not explained in the evidence, but it was not suggested that anything turned particularly on that 12 day delay.

149    Mr Dyer’s email to Ms England of 16 November accompanying the provision of his draft was as follows:

FYI

Can you please discuss with each other a suitable meeting date/time for this (change letter accordingly where highlighted)

Megan will need to phone Nona prior to meeting (say Monday) to advise of meeting and to send this letter – use the letter as a script when phoning Nona

Megan to advise Brad (prior to phoning Nona) that Nona’s position has been identified on a preliminary basis for redundancy

At the meeting we have to present Nona with opportunities for redeployment – hence current vacancies (copy off Portal) as well as the P&A Administrator role

At that meeting set another meeting date allowing time for Nona to consider options put – at this meeting discuss any further options/suggestions that Nona may have and whether she considers any of the jobs available as being suitable. If no viable options then proceed with the redundancy.

However, Mr Dyer had planned leave in late November. He and Ms Gillies agreed on 16 November 2011 that “the process” in relation to the applicant should commence after his return from leave on 5 December. Accordingly, Ms England did not at that time send the applicant a letter in terms of Mr Dyer’s draft.

150    Mr Dyer then learned that the applicant was on paid parental leave under the Paid Parental Leave Act 2010 (Cth). He considered that “the process” in relation to the applicant should be delayed further on that account. On 17 November he sent a further email to Ms England, the substantive part of which was:

I have been advised that Nona is on paid maternity leave until 22/1/12.

Consequently to avoid further complication I would suggest [to] proceed with redundancy after this date.

(FYI Nona’s 12 months of mat leave ends July 2012)

Ms England acted on that recommendation and it was not until after she received the applicant’s email of 25 January 2012 to which I referred earlier in these reasons that she requested the applicant attend a meeting arranged for 7 February 2012.

151    In his oral evidence, Mr Dyer explained that the “further complication” to which he referred in his email of 17 November 2011 was the disruption to the method by which Ms Stanley was receiving payments under the Paid Parental Leave Act. The payments were made through the agency of SYC but if her employment was terminated they would have to be made by a Commonwealth agency. Mr Dyer wished to avoid the possible delay and inconvenience to the applicant which this change may entail.

152    The applicant submitted that the Court should regard Mr Dyer’s explanation with scepticism. Counsel submitted that “[t]he more likely reason for the decision to delay was the risk that acting against the applicant too quickly after she had commenced maternity leave and whilst she was in receipt of Commonwealth benefits might have increased the chances of the applicant making a claim against the respondent”.

153    I consider Mr Dyer to have been an honest witness and can see no reason not to accept his explanation. Accordingly, I reject this submission of the applicant.

154    The applicant submitted that, if Mr Dyer’s explanation was accepted, the reason for SYC’s delay in consulting her was her entitlement to a benefit available only to a parent who qualifies under the Paid Parental Leave Act. This should be characterised as an attribute which generally pertains to pregnant women or, alternatively, to females. Accordingly, so the submission ran, the reason for the delay was an attribute of the applicant proscribed under the SD Act.

155    The first difficulty which this submission faces is that it was not pleaded. During the course of the opening, I raised with counsel for the applicant whether all of her causes of action had been pleaded and invited him to consider the adequacy of the pleading. SYC too raised a complaint that the applicant was advancing causes of action which had not been pleaded. Counsel did not make any application to amend and in his final submissions contended that this particular claim had been pleaded in paragraphs 27, 29, 30, 32, 35, 36, 56 and 57 of the amended statement of claim. I have reviewed these paragraphs. In my opinion, they cannot be reasonably regarded as raising the applicant’s present complaint. That should be sufficient by itself for this claim of the applicant to be dismissed.

156    However, I consider that in any event the claim should fail on the merits.

157    Again, a comparison has to be made of the applicant’s treatment with that of a hypothetical comparitor. The relevant comparitor, in my opinion, is an employee on leave but with an entitlement to a statutory payment in respect of part of that leave, the manner of payment of which may be disrupted by a termination of the employment. The comparitor is not, as the applicant submitted, an employee with similar skills, qualifications and experience who is on extended leave and whose role is made redundant.

158    There is no reason to suppose that SYC would have treated such a hypothetical comparitor any differently from its treatment of the applicant. On my findings, Mr Dyer suggested that “the process” be delayed until after the applicant’s completion of her paid parental leave for the purpose of avoiding inconvenience to the applicant in the receipt of her payments. I am satisfied that it is probable that he would have acted in the same way in the circumstance of the hypothetical comparitor.

159    This ground of alleged discrimination accordingly fails.

160    That conclusion makes it unnecessary, strictly speaking, to consider whether this ground of discrimination, if upheld, would have led to any practical effect. However, in case this matter goes further, I set out my conclusions on one issue which was agitated at the trial.

161    The applicant claimed that the absence of prompt consultation had the effect that she was deprived of the opportunity to apply and be considered for the position of Property and Assets Coordinator occupied by Mr Ellbourn, and the position of Property and Assets Administrator occupied by Ms Young.

162    There is nothing in the first of these claims as Mr Ellbourn had been confirmed in the position of Property and Assets Coordinator some five or six months previously (by SYC’s letter of 18 July 2011). SYC was not under an obligation to declare all positions vacant so that the applicant then had an opportunity to apply for his position. In any event, to have done so may well have put it in breach of its contract of employment with Mr Ellbourn.

163    However, the position is different in relation to the Administrative Assistant role occupied by Ms Young. In his email of 16 November 2011 to Ms England, Mr Dyer had advised that at the meeting with the applicant, she should be presented with opportunities for redeployment in the current vacancies available within SYC “as well as the Property and Assets Administrator role”. Despite that advice, and despite the fact that Ms Young’s appointment was expressed to be a temporary appointment during the applicant’s absence on parental leave, Ms England acted on 6 December 2011 to make Ms Young’s position permanent. This meant that in February 2012 that position could no longer be offered to the applicant.

164    Ms England explained that she had done this because the final decision concerning the structure of the P and A Department had been made. In addition, she said that she regarded the Administrative Assistant’s position occupied by Ms Young as inferior and obviously less well paid than the position previously occupied by the applicant. However, she was unable to provide any explanation for not taking Mr Dyer’s advice to offer the position to the applicant before making the decision to make Ms Young permanent. I also observe that Ms England’s stated rationale did not distinguish between the finalisation of the structure of the P and A Department on the one hand, and the identity of the personnel to fill the positions within that structure, on the other.

165    I consider that Ms England made Ms Young’s position permanent on 6 December 2011 at least in part for the purpose of avoiding having to offer that position to the applicant. Accordingly, I am satisfied that, if the applicant had made good her complaint that the absence of prompt discussion had been for a proscribed reason, she would have established some loss of opportunity arising therefrom.

166    At the meeting on 7 February 2012, the applicant did enquire whether the Administrative Assistant’s position was available. I accept her evidence to that effect. The applicant was given a negative response. The applicant’s counsel submitted that it could be inferred from the applicant’s enquiry that she would have accepted the Administrative Assistant position had it been offered to her.

167    However, I think it unlikely that the applicant would have accepted the position of Administrative Assistant. It is significant that the applicant did not depose positively that she would have accepted the position of Administrative Assistant if it had been available.

168    I also consider that the applicant would have made the same assessment of the circumstances as did Ms England and Ms Gillies, namely, that the Administrative Assistant’s role was an inferior position, given that it involved lower level duties and, in addition, the performance of duties for Mr Ellbourn. The applicant considered that her position as Facilities Manager, although formally equal to that of Mr Ellbourn, was superior, as evidenced by her slightly higher salary and by the fact that she had been the person who acted in Mr Lemmey’s position during his temporary absences. In addition, the salary attaching to the Administrative Assistant’s role was some $20,000 less than that in the applicant’s previous position. In those circumstances, I consider it unlikely that the applicant would have accepted the Administrative Assistant’s role, even if it had been available to her.

Request for flexible working arrangements: Section 65 of the FW Act

169    As noted earlier, on 12 December 2011, the applicant sent an email to Ms England enquiring as to the possibility of an earlier return to work, and a return on a part-time basis. In that email the applicant said (relevantly):

As you are aware, I am due to return to work on the 1st August 2012.

After a lot of consideration I would like to ask if there is an opportunity for me to return earlier than August. I’d like to come back around April/May if the opportunity allows … I’m flexible so whatever would suit you and the business.

Upon returning (whether it be earlier or in August) I would also request if my existing job can be on a part-time basis only rather than full-time. My preferences would be as follows:

Proposal 1

Work 4 days/week (Mon – Thurs) from approx. 8am – 4pm. The reason for a 4pm finish would be to allow time to collect my daughter from childcare at Aldinga as it closes at 6pm. I intend on enrolling [my daughter] into Precious Cargo childcare centre at Aldinga first until a position is available at Precious Cargo Westbourne Park. Westbourne Park currently have no vacancies but once a vacancy becomes available she will be transferred there. Westbourne Park closes at 6:30pm so my finishing time at work can then be reverted back if required. Enrolling her into Aldinga first gives us preference when a position is available at Westbourne Park so we don’t have to sit on the bottom of the waiting list.

Proposal 2

Work 3 days/week (Mon – Wed) from 8am – 4pm initially for the same reason as above.

Proposal 3

Work 5 days a week but 1 day (any day) work from home.

I realise I may be jumping the gun a bit but would like to get the ball rolling as I need to enrol into childcare as early as possible, and these next few months will fly quickly.

I really want to be as flexible as possible and am more than happy to discuss any of these options or other options with you over the phone or I can come in and see you any time.

Ms England’s response in the email of 19 December 2011 was as follows:

Thank you for your email. I advise that I will be contacting you early in January to arrange a convenient time to meet with you to discuss work options taking into account the needs of the business in the new year.

170    As it happened, Ms England did not contact the applicant in early January 2012 and the applicant contacted her again on 25 January 2012 enquiring about the position. That then led to the termination of the applicant’s employment a few weeks later.

171    Section 65 of the FW Act permits certain employees, including employees who are the parent of a child of school age or younger, to request changes in working arrangements relating to their status as a parent. An employer must respond to a request in writing within 21 days, and may refuse the request only on reasonable business grounds. Section 65 provides (relevantly):

Employee may request change in working arrangements

(1)    If:

(a)    any of the circumstances referred to in subsection (1A) apply to an employee; and

(b)    the employee would like to change his or her working arrangements because of those circumstances;

then the employee may request the employer for a change in working arrangements relating to those circumstances.

(1A)    The following are the circumstances:

(a)    the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

…

(1B)    To avoid doubt, and without limiting subsection (1), an employee who:

(a)    is a parent, or has responsibility for the care, of a child; and

(b)    is returning to work after taking leave in relation to the birth or adoption of the child;

may request to work part-time to assist the employee to care for the child.

…

Formal requirements

(3)    The request must:

(a)    be in writing; and

(b)    set out details of the change sought and of the reasons for the change.

    Agreeing to the request

(4)    The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.

(5)    The employer may refuse the request only on reasonable business grounds.

…

172    Section 65 forms one of the National Employment Standards established by the FW Act. Section 44 of the FW Act makes it unlawful for an employer to contravene a provision of the National Employment Standards. Section 44 provides:

(1)    An employer must not contravene a provision of the National Employment Standards.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    However, an order cannot be made under Division 2 of Part 4-1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4).

…

173    The applicant claimed that Ms England’s emailed response, being the only response from SYC to her request of 12 December 2011, was not a response of the kind required by s 65(4) and that SYC had accordingly contravened this National Employment Standard. She sought the imposition of a penalty in respect of that breach.

174    SYC contended that the applicant’s email of 12 December 2011 was not a “request” of the kind contemplated by s 65 and therefore had not enlivened the obligation to respond. There were two aspects to its submission:

(a)    the request for part-time work was a foreshadowed request only, as indicated by the sentence “[u]pon returning (whether it be earlier or in August) I would also request if my existing job can be on a part-time basis only rather than full-time”;

(b)    the applicant did not provide reasons for the change which she sought, as required by s 65(3).

175    I reject both of these contentions. The applicant’s email of 12 December 2011 is to be construed objectively, that is, by considering what it would reasonably have conveyed to the intended recipient. On any reasonable view, the applicant’s email constituted a request, and not merely an expression of intention to make a request at some time in the future. The applicant made a composite request; a request to return to work earlier than previously arranged and for that return to be on a part-time basis. The conclusion that the applicant’s email constituted more than an inquiry is confirmed by her statement, “I realise I may be jumping the gun a bit but would like to get the ball rolling as I need to enrol into childcare as earliest as possible, and these next few months will fly quickly”.

176    SYC’s submission that the reasons provided by the applicant did not explain why she sought part-time work is unfounded. The applicant says expressly that she sought a 4.00pm finish in order to provide time within which to pick up her daughter from childcare. While not explicitly stated, her reasons for wanting to work only three or four days per week are apparent. The whole of that paragraph is plainly directed to the applicant’s parenting and childcare concerns.

177    SYC accepted that, if the applicant’s email is properly characterised as a request, then it had not responded to it within 21 days as required. The breach of s 65 is therefore established.

178    I shall return later in these reasons to address the consequences of the breach.

Alleged contravention of s 83 of the FW Act

179    Section 83(1) of the FW Act provides:

(1)    If:

(a)    an employee is on unpaid parental leave; and

(b)    the employee’s employer makes a decision that will have a significant effect on the status, pay or location of the employee’s pre-parental leave position;

the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.

As can be seen, s 83 imposes obligations on employers who make certain kinds of decisions concerning the pre-parental leave position of an employee who is on unpaid parental leave.

180    The applicant submitted that the decision to terminate her employment was a decision attracting the operation of s 83. In the alternative, she submitted that the decision confirming the restructure of the P and A Department was such a decision. On her case, these were the decisions made by Mr Matthews in late October or early November 2011.

181    The applicant claimed that SYC had breached s 83 because it had failed to take all reasonable steps to give her information about, and the opportunity to discuss, the effect of Mr Matthews’ decisions on her pre-parental leave position.

182    The submissions of both parties in relation to this claim assumed that a decision of an employer to terminate an employee’s employment is a decision having a significant effect on the “status, pay or location” of the employee’s pre-parental leave position. That view of the matter may be contestable but, given that it was common ground, I will proceed on the basis of the parties’ common assumption.

183    The applicant’s submissions did not distinguish between the two alternative forms of decision pleaded in ASC [73].

184    This claim of the applicant gives rise to three subsidiary issues which I will address in turn.

What was the “decision” and when was it made?

185    As noted, the applicant relied on the decisions made by Mr Matthews in late October or early November 2011 concerning the restructure of the P and A Department, and that the applicant’s position had become surplus to needs. Mr Matthews decided then that the applicant’s role should be made redundant and that her employment with SYC should cease for that reason.

186    SYC disputed that a decision for the purposes of s 83(1) had been made at that time. It submitted that Mr Matthews’ decision was only a “preliminary” decision as it was subject to approval from the Human Resources Department. It contended that the Human Resources Department did not grant that approval until late January 2012, so that it was only then that a relevant decision had been made.

187    I reject this submission of SYC. It is not supported by SYC’s own evidence, as none of Mr Edginton, Mr Matthews, Mr Dyer or Ms Gillies referred to a decision to retrench being subject for its effect to the approval of the Human Resources Department. In any event, Mr Matthews did, at the time of making his decision, obtain advice from Mr Dyer in Human Resources and received confirmation that he could proceed. Further still, it is apparent that Mr Dyer must, shortly after Mr Matthews’ decision, have given any approval which was required. That is evidenced by his preparation of the draft letter of 4 November 2011 to be sent to the applicant and from his evidence that “the process” in relation to the applicant was delayed only by reason of his own leave, and SYC’s wish to avoid disruption to the applicant’s receipt of her entitlements under the Paid Parental Leave Act.

188    Accordingly, I proceed on the basis that SYC made a decision of the kind to which s 83(1)(b) refers in late October or early November 2011.

Was the applicant on unpaid parental leave?

189    Both parties accepted that, after the expiry of the applicant’s annual leave on 18 September 2011, she had been on unpaid parental leave. Neither suggested that the benefits received by the applicant under the Paid Parental Leave Act between 19 September 2011 and 22 January 2012 had the effect, for the purposes of s 83 of the FW Act, of converting her unpaid leave from SYC into paid parental leave.

190    I will proceed on the same basis. This means that both pre-conditions for the enlivening of the obligation imposed on SYC by s 83(1) were satisfied.

The adequacy of the steps taken by SYC

191    SYC was required to take “all reasonable steps” to give the applicant “information about, and an opportunity to discuss, the effect of the decision” on her pre-parental leave position. Section 83(2)(a) had the effect of defining the applicant’s pre-parental leave position as the position which she held before starting her unpaid parental leave, namely, her position as Facilities Manager.

192    The Court did not receive detailed submissions from the parties as to the nature and extent of the obligation imposed by s 83, once it is enlivened. In those circumstances, it is inappropriate to express concluded views.

193    However, some features of the obligation imposed by s 83(1) on an employer may be noted. First, the obligation is expressed to arise only when an employer has made a decision of the stipulated kind. This is indicated by the words “makes a decision” in subsection (1)(b) and, to a lesser extent, by the words “the effect of the decision” in the concluding line. In this respect, the obligation established by s 83(1) is similar to that imposed by the standard “Introduction of change” clause in Awards of the former Australian Conciliation and Arbitration Commission (Termination, Change and Redundancy Case (No 2) (1984) 295 CAR 673 at 688) which provided:

Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their union or unions.

This means that s 83(1) does not impose an obligation on an employer to consult with the affected employee before the employer makes the relevant decision.

194    Secondly, the obligation when it arises is of a stringent kind. The employer must take “all reasonable steps” to give the employee information about the effect of the decision and the opportunity to discuss the effect of the decision. This means that any reasonable step must be taken and an employer will not discharge the obligation by some activity if, in the circumstances, further action could reasonably be expected. The nature and extent of the reasonable steps required will vary according to the nature and circumstances of the case. An employer’s subjective view of what may be adequate will not be decisive: the section establishes an objective criterion.

195    The content of an employer’s obligation under s 83 may well be informed by the attitude of the affected employee. Some employees will wish to engage in active discussion and seek detailed information, while others will not. The opportunity to be provided by an employer may be more extensive in the case of the former than in the case of the latter.

196    Thirdly, s 83(1) contemplates a form of consultation of a discrete kind. That is the effect of the employer’s decision “on the employee’s pre-parental leave position”. However, given the obvious policy consideration underlying s 83(1), there is no reason to construe that expression narrowly. In particular, it does not seem appropriate to construe s 83(1) as requiring a form of consultation concerning the employee’s position, but not concerning the employee personally. A decision having a significant effect on “the status, pay or location” of an employee’s pre-parental leave position will usually have an intrinsic effect on the employee personally. It is natural to suppose that s 83(1) contemplates discussion about the effect of the decision on the employee personally as well as on the employee’s pre-parental position. SYC did not submit to the contrary.

197    Finally, it is apparent that s 83(1) requires a form of informed consultation. The employer must take all reasonable steps to give the employee an opportunity to discuss the effects of the decision. The employee’s ability to take advantage of that opportunity is facilitated by the requirement that the employer, in addition, take all reasonable steps to give the employee information about the effects of the decision. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 268 ALR 514, Logan J reviewed a number of authorities bearing upon the content of an award obligation requiring employers to “consult” with affected employees regarding “any proposed changes that will have an impact on employees’ terms and conditions of employment”. In particular, Logan J referred to authority indicating that the nature and object of the consultation must be related to the circumstances which call for it; that the requirement for consultation is not to be treated perfunctorily or as a mere formality and that consultation is not an empty term. Although s 83(1) uses the verb “discuss” rather than the verb “consult”, these observations are also apposite in the present case.

198    The word “discuss” is capable of a wide meaning. There is no reason to suppose that it is used in s 83(1) in a narrow sense. In particular, it seems reasonable to suppose that s 83 imposes an obligation on an employer to engage in genuine discussion with an affected employee of ways by which the effect of the employer’s decision may be mitigated or averted, noting that these expressions involve concepts different from that of a reversal of the decision.

199    The content of the required discussion is not without limit. It must be directed to the “effect” of the decision. Contrary to submissions of the applicant in the present case, s 83(1) does not seem to impose obligations on employers to justify the decision to the affected employee or to demonstrate that it has excluded possible alternatives to the decision which has been made.

200    On that understanding of the obligation imposed by s 83, I turn to the applicant’s specific complaints.

201    The applicant contended first that SYC delayed unreasonably in informing her of its decision, as it was not until early February 2012 that she was notified of the decision made in late October or early November 2011. She contended that she should have been notified sooner, and that SYC’s reasons for delaying the notification were inadequate. The applicant submitted that another member of the Human Resources Department could have been involved during Mr Dyer’s absence on leave. Further, SYC could have commenced the discussion during Mr Dyer’s absence on leave but deferred the conclusion of the process until after her entitlements under the Paid Parental Leave Act had ceased.

202    I am inclined to think that, insofar as the taking of reasonable steps involves a temporal element, it is directed more to the period between the notification of the decision to the employee and the implementation of that decision, rather than to the period between the making of the decision and its implementation. However, the reasonableness of the opportunity provided by an employer in relation to the former may be affected by the length of the latter period.

203    In any event, a delay by an employer is not to be characterised as unreasonable simply by reference to the length of time which has elapsed. Account must also be taken of the reasons for the delay and the effect in the circumstances of the employer and the applicant occasioned by the delay.

204    SYC’s delay in the present case is troubling, especially in the context that it proceeded to terminate the applicant’s employment only eight days after its first notification to her of the restructure and her redundancy. SYC may have been well-intentioned in delaying the notification to the applicant, but I agree with the applicant that it did have the ability, despite Mr Dyer’s absence on leave, to give her early notification of its decision. Had it done so, the opportunity to the applicant to assess the effect of the decision before the termination of her employment would have been enhanced.

205    As noted, only eight days elapsed between the initial notification to the applicant on 7 February and the termination of her employment on 15 February 2012. However, it is significant that the applicant did not seek to have this time extended. That is particularly so bearing in mind that by 15 February 2012 the applicant had the benefit of legal advice and in fact was legally represented at the meeting on 15 February.

206    The evidence did not touch upon SYC’s attitude to an extension of the time had that been requested. However, it is apparent that SYC was attempting to comply with the obligation imposed by s 83. In that context, I think it unlikely that SYC would have refused an extension of time had that been requested by the applicant.

207    For these reasons, I am not satisfied that the applicant has shown a breach of s 83 by reference to SYC’s “delay”. In any event, for the reasons given earlier in relation to the third alleged contravention of s 14, I am not satisfied that any failure by SYC in this respect would have produced any practical effect.

208    The applicant’s second and third complaints may be considered together. These were that SYC had not provided her with information about the restructure and had not given her the opportunity to discuss it. The submission was that SYC should have provided the applicant with information about the workload of the P and A Department and the distribution of duties within it so as to allow her to make suggestions as to the means by which she could retain her employment within that Department, whether as Facilities Manager or in some other capacity.

209    Some of the applicant’s submissions on this topic reflected her underlying view that it was incumbent on SYC to justify its restructuring decision to her, or to justify the structure of the P and A Department on which it had determined. I do not regard SYC’s obligation as being of that kind. For the reasons already given, the focus of SYC’s obligation related to the effect of its decision on her position.

210    By February 2012, the P and A Department had been operating with the three-tiered structure for six months, and that structure can be taken to have been settled. It was not a recent or untried innovation. The applicant knew in any event the structure which had been adopted in the P and A Department. She did not have to be told afresh of the manner in which the Department was operating.

211    I consider it also pertinent that the applicant did not request the information which she now submits should have been provided to her. That was so even on 15 February 2012 when she had the benefit of legal assistance.

212    Finally, in a practical sense, it is not altogether clear what further information SYC could have given to the applicant regarding the workload of the P and A Department. The nature of the work was known to the applicant and SYC’s experience was that that workload was being managed satisfactorily by the existing three employees.

213    Having regard to these circumstances, I conclude that, in the circumstances of this case, s 83 did not require SYC to disclose information to the applicant regarding the workload of the P and A Department or the manner of its distribution.

214    Finally, the applicant submitted that SYC had made a final decision with the effect that its mind was so closed as not to be receptive to any suggestions which she may have made. This submission has to be considered in the context that not only did the applicant not make any suggestions on 15 February 2012 but, through her solicitor, acknowledged that none of the available vacant positions was appropriate.

215    I am satisfied that SYC had by 7 and 15 February 2012 made a firm decision about the applicant’s position. As previously noted, Mr Matthews had concluded by at least early November 2011 that her position was surplus to SYC’s requirements and had initiated the redundancy process. It is also apparent that SYC was following the course advised by Mr Dyer to give effect to that decision.

216    However, it does not follow that SYC had such a closed mind that it would not have considered in an appropriate way any suggestion at all which the applicant did make. For example, if the applicant had expressed interest in one of the alternative vacant positions, it is likely that SYC would have considered that interest sensibly. That is consistent with the general practice of SYC in circumstances of the present kind, as outlined by Mr Dyer in the passages quoted earlier in these reasons. This is confirmed by SYC’s letter to the applicant of 7 February 2012.

217    There are authorities in analogous statutory contexts, for example, Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (1998) 88 IR 202 at 215-18, which indicate that the consultation required of an employer must occur before the employer has made an irrevocable decision. The possible application of reasoning of that kind in the present context was not the subject of submission and, accordingly, I express no view about it. I am satisfied in any event that SYC’s conclusion that the applicant’s employment should be terminated, although firm, was not irrevocable and that, had the applicant identified a suitable alternative position, it would have been considered in an appropriate way.

218    For these reasons, I am satisfied that the applicant has not made out a breach of s 83.

Alleged contravention of s 84 of the FW Act

219    Section 84 provides:

On ending unpaid parental leave, an employee is entitled to return to:

(a)    the employee’s pre-parental leave position; or

(b)    if that position no longer exists—an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.

220    The applicant contended that SYC had breached s 84 by not permitting her to return to her position as Facilities Manager or, if that position no longer existed, to an available position for which she was qualified and suited, and nearest in status and pay to her pre-parental leave position. She nominated the position occupied by Mr Ellbourn as answering that description.

221    SYC submitted that the operation of s 84 was not enlivened in this case. It submitted that s 84 imposes an obligation on an employer only when an employee ends the period of unpaid parental leave and that that point had not been reached in this case. That was because the appellant’s unpaid parental leave was to end on 31 July 2012, but her employment had in the meantime been terminated.

222    SYC referred to the decision in Kerrison v Air International Pty Ltd [2006] AIRC 297 in a similar circumstance. Clause 7(1) of Sch 5 of the Fair Work Act 1994 (SA) provided that “on finishing parental leave, an employee is entitled to the position the employee held immediately before starting parental leave”. As the employee had been retrenched while on parental leave, a Commissioner held that she had not “finished” that leave, with the effect that cl 7(1) of Sch 5 was not enlivened. The Commissioner said (at [222]) that the parental leave provisions did not “operate to quarantine an employee from the effects of a genuine redundancy occurring during a period of maternity leave”.

223    In Iliff v Sterling Commerce (Australia) Pty Ltd [2007] FMCA 1960, Burchardt FM considered the counterpart provision in former Sch 14 of the Workplace Relations Act 1996 (Cth) and took a contrary view. Schedule 14, Item 12 applied “when an employee returns to work after a period of Schedule 14 maternity leave” and required the employer to return the employee to the position which she held immediately before commencing that leave or, if that position no longer existed and there were other positions available, then to an alternative position. Burchardt FM rejected a submission that Sch 14 operated only when the employee actually returned to work so that it was not engaged when the employee did not return because the employer had precluded her from doing so, at [155]. He considered that an employer should not be able to avoid the operation of Sch 14 simply by refusing to have the employee back after an absence on maternity leave.

224    In my opinion, s 84 is a beneficial provision and should be construed accordingly. There is no reason to give it a narrow construction and, in particular, to construe it as subject to limitations or qualifications which it itself does not contain.

225    The clause “on ending unpaid parental leave” in s 84 is unqualified. It allows for the variety of circumstances in which parental leave may end, for example, on expiration of the agreed period of leave or on an employee’s earlier return to work. A termination of an employee’s employment while the employee is absent on leave necessarily brings the period of leave to an end as an employee cannot be on leave from employment which no longer subsists.

226    I agree that there is some incongruity in the circumstance that an employer’s act in terminating the employment of an employee may, simultaneously, trigger an obligation under s 84 in the employer to allow the employee to return to the pre-parental leave position or, if that is not available, to some available and suitable alternative position. However, that circumstance is necessarily implicit in the “guarantee” which s 84 provides. The evident policy reflected in s 84 should not be able to be frustrated by an employer adopting the expedient of terminating an employee’s services before the expiration of the employee’s unpaid parental leave. Further, an employer who terminates an employee’s employment by reason of genuine redundancy without there being available alternative positions is unlikely to be in breach of s 84.

227    In the present case, that means that the obligation of SYC under s 84, which would otherwise have been enlivened on 31 July 2012, was instead enlivened on 15 February 2012.

228    Nevertheless, I consider that the applicant’s claim that SYC breached s 84 in her case should fail.

229    As at 15 February 2012, there was no position to which the entitlement established by s 84 could attach. The applicant accepted that her position as Facilities Manager no longer existed. SYC did not have an available alternative position for which the applicant was qualified and suited, and nearest in status and pay to her pre-parental leave position.

230    The applicant’s submissions treated s 84(b) as containing an unqualified entitlement, namely, an entitlement to return to a position for which she was qualified and suited, and nearest in status and pay to her position of Facilities Manager. This submission, however, overlooked the word “available”. Ordinary canons of statutory construction require that, so far as practical, meaning should be given to each word in a statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71]; (1998) 194 CLR 355 at 382. This means that the word “available” cannot be ignored and, in turn, that the second limb of s 84 is not to be construed in the manner for which the applicant contended. The employee is entitled only to return to an “available” position of that kind.

231    In my opinion, a position is “available” if it is, or will be, open to be filled by the employee. A position for which an employee is qualified and suited, and close in status and pay to an applicant’s pre-parental leave position, is not “available” in the requisite sense if it is occupied by another permanent employee of the employer. Accordingly, I reject the applicant’s submission that the position occupied by Mr Ellbourn was “available” to be filled by her. It was not available in the requisite sense because it was already occupied by Mr Ellbourn. Section 84 should not be construed as requiring an employer to dismiss another employee in order to free up a position for the returning employee.

232    For these reasons, the applicant does not establish a breach of s 84.

Imposition of a penalty

233    The applicant sought a variety of remedies. These included declarations, an injunction, orders requiring the respondent to provide training to its employees concerning unlawful discrimination and to provide a published apology, reinstatement of employment, the imposition of penalties and an award of compensation.

234    The only breach by SYC which I have found to be established is the breach of s 65 of the FW Act.

235    The applicant sought the imposition of a penalty in respect of any breach of the National Employment Standards which was established. The respondent submitted that the breaches alleged by the applicant were minimal with the effect that the Court could appropriately not award any penalty at all. The Court is empowered to award a pecuniary penalty: s 546(1) of the FW Act. The maximum penalty for a contravention of s 65 which was applicable at the time of SYC’s contravention was $33,000.

236    The principles applicable to the imposition of penalties are well-established and it is not necessary to rehearse them in these reasons. I refer to Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560; Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1246 at [40]; (2008) 177 IR 61 at 69; Temple v Powell [2008] FCA 714 at [56]-[78]; (2008) 169 FCR 169 at 186-91; and Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040; (2009) 189 IR 304. The matters to which the Court will have regard include:

(a)    The nature and extent of the conduct which led to the breach;

(b)    The circumstances in which that conduct occurred;

(c)    The nature and extent of any loss or damage sustained as a result of the breach;

(d)    Whether there has been any similar previous conduct by the respondent;

(e)    The size of the business enterprise involved;

(f)    Whether or not the breach was deliberate;

(g)    Whether senior management was involved in the breach;

(h)    Whether the party committing the breach has exhibited contrition;

(i)    Whether the party committing the breach has taken corrective action;

(j)    The need for specific and general deterrence.

237    In the present case, I am satisfied that SYC’s failure to respond within 21 days in the required fashion to the applicant’s request of 12 December 2012 was inadvertent. Generally, I accept that SYC does endeavour to comply with its employment obligations, including its obligations under the FW Act. I also accept that SYC was probably distracted from complying with its obligation to make a timely and adequate response to the applicant’s request of 12 December 2011 by the circumstance that it had, before receiving that request, decided that the applicant’s position was redundant and that the termination of her employment was appropriate. The applicant did not suffer any loss as a result of SYC’s breach.

238    SYC has expressed contrition for any breach. Unfortunately, that expression of contrition is weakened, in my opinion, by the attitude which SYC took in these proceedings to the applicant’s email of 12 December. As noted earlier, it submitted that the email did not enliven the obligation under s 65 because it was not a “request” of the requisite kind and did not include reasons for the change in working arrangements requested by the applicant. I expressed surprise when that submission was made and asked counsel for SYC to confirm that the submission was made on the express instructions of SYC. After the luncheon adjournment, counsel gave that confirmation. To my mind, this evidences a somewhat niggardly view by SYC of the email of 12 December 2011 and undermines its present expressions of contrition.

239    I accept that SYC has not been the subject of any proceedings concerning a breach of the FW Act in the past and that considerations of specific deterrence do not rank highly in its case. Considerations of general deterrence are, however, applicable.

240    Finally, I record my satisfaction that SYC’s breach did not result in any pecuniary loss to the applicant.

241    In the circumstances, I consider that a pecuniary penalty of $4,000 is appropriate. That is the amount which I will impose. In accordance with usual principle (Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170 at [64]-[65]; (2008) 171 FCR 357 at 377), I will direct that that amount be paid to the applicant.

242    None of the other forms of relief sought by the applicant is appropriate. I will hear the parties as to costs.

Conclusion

243    For the reasons given above, I make the following orders:

(1)    I declare that SYC breached s 44(1) of the FW Act in that it failed, as required by s 65(4) of the FW Act, to give the applicant a written response within 21 days to the request for a change in work arrangements contained in her email of 12 December 2011;

(2)    Pursuant to s 546(1) of the FW Act, I order that SYC pay a pecuniary penalty of $4,000 in respect of its breach of s 65(4);

(3)    Pursuant to s 546(3) of the FW Act, I order that this penalty be paid to the applicant;

(4)    All other claims of the applicant in these proceedings are dismissed;

(5)    I will hear the parties as to costs and as to any consequential matters.

Associate:

Dated:    20 June 2014