FEDERAL COURT OF AUSTRALIA

Poppy v Service to Youth Council Incorporated [2014] FCA 656

THE COURT DECLARES THAT:

1.    The respondent contravened s 44(1) of the Fair Work Act 2009 (Cth) in that it breached s 65(4) of the Fair Work Act, by failing, within 21 days, to give the applicant a written response to the request for a change in work arrangements contained in her email of 19 May 2010.

THE COURT ORDERS THAT:

1.    Pursuant to s 546(1) of the Fair Work Act, the respondent is to pay a pecuniary penalty of $2,500 in respect of its non-compliance with 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 applicant was employed by the respondent (SYC) from 6 June 2006 until 23 July 2010. Her employment was terminated by SYC on the stated ground of redundancy.

2    The applicant gave birth to her first child on 22 March 2010. The termination of her employment occurred while she was on maternity leave.

3    In these proceedings, the applicant alleges that SYC and several of its senior officers “targeted” her for dismissal as a consequence of her pregnancy, the birth of her child, and her maternity leave, and that the “targeting” commenced after she informed SYC of her pregnancy in August 2009. She contends that SYC determined to make her redundant and otherwise to treat her less favourably because she was pregnant, had the right to take maternity leave and to request flexible working arrangements, and because it assumed that she would not be able to render service in the same way as she had before her pregnancy. The applicant contends that her redundancy was a “manufactured situation” arising from SYC’s redistribution of her duties while she was on maternity leave.

4    In these circumstances, the applicant claims that SYC contravened s 14(2) of the Sex Discrimination Act 1984 (Cth) (the SD Act) which proscribes discrimination by an employer against an employee on the grounds, amongst other things, of the employee’s sex, pregnancy or family responsibilities.

5    In addition, the applicant alleges three contraventions by SYC of the National Employment Standards established by Part 2-2 of the Fair Work Act 2009 (Cth) (the FW Act), namely, contraventions of ss 65, 83 and 84 of the FW Act.

6    SYC denies each of the alleged contraventions.

Factual background

7    In order to set out the background against which the issues raised by the applicant are to be determined, I make the following findings of fact. They were, for the most part, non-contentious.

8    SYC is a not-for-profit association providing training, employment, accommodation and “well-being” services to youth. The majority of its income comes from grants from the Commonwealth and State governments.

9    At times relevant in these proceedings, the Chief Executive of SYC was Mr Edginton and its Chief Operating Officer was Mr Furniss. Ms Gillies held the position entitled “Executive General Manager, People and Culture”; Mr Dyer the position of “Human Resources Adviser”; and Dr Hancock the position of “Manager, Communications and Strategy”.

10    The applicant has tertiary qualifications in marketing and management, being a Bachelor of Management (Marketing) obtained in 2003 and a Postgraduate Diploma in Communications (Public Relations) obtained in 2007, in both cases at the University of South Australia.

11    The applicant commenced employment with SYC on 6 June 2006 in the position of Marketing Coordinator at a salary of $42,000 per annum in addition to superannuation. She was the first person employed by SYC to perform a dedicated marketing role. The applicant had worked only relatively briefly in marketing before starting with SYC. In mid-2008, the applicant was promoted to the position of Marketing Manager and her salary increased to $60,000 per annum in addition to the 9% superannuation contribution. In that position, the applicant reported directly to Mr Edginton.

12    During the course of the applicant’s employment, SYC’s office was in Currie Street in Adelaide’s CBD. After she commenced her maternity leave, SYC moved to premises in Grenfell Street, also in the CBD.

13    The applicant acknowledged that she is a person who is very ambitious and career focussed. She made plain to Mr Edginton her ambition to be the most senior manager of marketing at SYC and to be involved in high level strategic decision-making.

14    During the period of her employment at SYC, the applicant did not receive any adverse comment regarding her employment. On the contrary, she was well-regarded and received complimentary comments, including from Mr Edginton, on more than one occasion.

15    In early August 2009, the applicant informed Mr Edginton of her pregnancy. She indicated to Mr Edginton that she would like to take four months’ maternity leave and, on her return, to work some days in the office and some days at home. The applicant attached significance to Mr Edginton’s response to the news of her pregnancy and her amended statement of claim alleged that it amounted to sexual harassment in contravention of s 28B of the SD Act. It will be necessary to return to this discussion and make detailed findings about it.

16    By a letter in late August 2009 addressed to Mr Edginton and copied to Ms Gillies, the applicant made a written request for maternity leave. After indicating that her child was due on 15 March 2010, the applicant continued:

I plan on starting my maternity leave on February 19, 2010. I would like to take the first 6 weeks and 3 days as annual leave which takes me up to Wednesday, April 7, 2010 which is when I would like to take unpaid maternity leave. My intention is to return to work on Monday, July 5, 2010.

As previously discussed, on my return to work I wish to work 3 days in the office and 2 days at home per week. I would like to work from home Monday and Friday and be in the office on Tuesday, Wednesday and Thursday. I will be flexible with these days if necessary to ensure I can effectively manage the Marketing team.

In fact, the applicant commenced her leave on 18 February 2010.

17    Between August 2009 and the commencement of the applicant’s maternity leave, a number of events happened in relation to the applicant at SYC which she attributed to her pregnancy. It will be necessary to make more detailed findings about these events later but, for present purposes, I record them briefly as part of the chronology.

18    First, the applicant was required to change offices within the Currie Street premises. Instead of being in a separate office, the applicant was now in a common area. She regarded the new office as inferior and as involving a reduction in status.

19    Secondly, in or around September 2009, Mr Edginton told the applicant that she was no longer to attend the monthly senior management meetings.

20    Thirdly, prior to August 2009, the applicant had been accustomed to meet Mr Edginton approximately every two months for mentoring and coaching in relation to her work and career. Mr Edginton did not schedule any of these meetings after the applicant announced her pregnancy. The applicant associated the cessation of those meetings with her pregnancy, contending that it formed part of the “targeting” by SYC.

21    Fourthly, in November and December 2009, SYC embarked on a restructuring of its marketing department which impacted on the applicant’s role as Marketing Manager. The restructuring process continued over two or three months. Dr Hancock was appointed to a new position of Manager, Communications and Strategy and from 1 February 2010 was put in charge of the marketing department. The applicant was told (by Mr Edginton) that her position of Marketing Manager no longer existed. After some discussion, in January 2010 she was offered and accepted the position of Manager, Marketing and Events. The applicant then reported to Dr Hancock instead of Mr Edginton. Her salary remained the same.

22    Fifthly, the applicant gave evidence of a conversation with Mr Furniss shortly before she commenced her maternity leave. She said that Mr Furniss made comments which left her feeling hurt, humiliated and worried that she would not be able to work and have a baby. In her amended statement of claim, the applicant alleged that Mr Furniss’ remarks amounted to sexual harassment in contravention of s 28B of the SD Act. However, she did not pursue that allegation at the trial. Instead, she contended that Mr Furniss’ remarks were evidence of the “targeting” of her for dismissal.

23    Sixthly, at about this same time, Ms Colebeck, who occupied the position of Marketing Assistant, was promoted to the role of Marketing Cooordinator and Ms Foreman, who had been a casual employee, was employed as a part-time Marketing Assistant. Mr Colebeck and Ms Foreman were to report to the applicant, but Mr Edginton told the applicant in January 2010 that they would report to Dr Hancock while she was on her maternity leave. I did not understand the applicant to contend that these appointments and rearrangements were part of the “targeting” of her by SYC. Indeed, she herself had recommended the promotion of Ms Colebeck.

The witnesses in the trial

24    The applicant gave evidence herself and called evidence from Ms Colebeck and a Mr Franklin.

25    It is evident that the applicant harbours a strong sense of grievance towards SYC. In some respects this is understandable. She had derived considerable satisfaction from her work at SYC and was ambitious for career advancement. While she was in the position of Marketing Manager and reporting directly to Mr Edginton, she had received strong support from him and they had a close working relationship. The applicant is resentful that this has come to an end.

26    I consider that much of her evidence was coloured by her sense of grievance. In particular, she has come, retrospectively and perhaps unconsciously, to construe past events with sinister overtones in order to advance her claim for vindication. In a number of instances, that sense of grievance led the applicant to maintain implausible positions and to make exaggerated claims.

27    Amongst other things, I considered that the applicant’s evidence concerning the circumstances in which she came to pose for a photograph published in the Advertiser newspaper on 1 June 2013 in relation to this claim was unconvincing. The applicant claimed that she and another employee (Ms Stanley) posed for the photograph in order to “highlight” their claims for “the Courts”, thinking that it “could possibly speed up the Court process”. I consider that the applicant proffered this explanation untruly because she was unwilling to acknowledge the real reason or reasons for having posed for the photographer. It is more plausible that those reasons included a desire to embarrass SYC but it is not necessary to make a finding to that effect. I am satisfied, as I say, that the applicant’s claim that she had believed that doing so might speed up the Court process was untrue.

28    For all these reasons, I have treated the applicant’s evidence with some circumspection.

29    I regarded the evidence of Ms Colebeck as honest and reliable. Mr Franklin impressed me as an honest witness, but without an accurate recollection. Much of his evidence was of a generalised kind, and some involved reconstruction.

30    There were some discrepancies between Mr Edginton’s oral and written evidence and, on one topic, I regarded his evidence as unconvincing. However, I did not regard these as detracting from the general reliability of his evidence. Generally, I regarded the evidence from the other witnesses called by SYC as honest and reliable, although it will be necessary to remark on some aspects of Dr Hancock’s evidence.

The termination of the applicant’s employment

31    In this section of the reasons, I make findings about the circumstances of the termination of the applicant’s employment. Again, these matters were for most part uncontentious.

32    SYC did not fill the applicant’s position while she was on maternity leave. Instead, her duties were divided between Dr Hancock and Ms Colebeck. In addition, a Ms Fuss moved into the marketing department and carried out some activities previously performed by the applicant.

33    On 19 May 2010, Ms Downey, a member of SYC’s human resources department, telephoned the applicant to discuss her return to work. She suggested that the applicant send an email to Dr Hancock regarding her intentions. Later that same day, the applicant sent an email to Dr Hancock, the substance of which was as follows:

As stated in my maternity leave letter, I would like to return to work on Monday, July 5, 2010. In discussions with Paul Edginton prior to me going on maternity leave, it was discussed that I could return to my role 3 days in the office and 2 days at home. However, if possible I would like to come back part-time – 4 days per week (3 in the office and 1 from home split over 2 days) to my role as Marketing and Events manager.

I look forward to hearing from you about my return to work.

Dr Hancock replied by email on 21 May 2010 saying (relevantly):

Now that I know what your preferences are, I’ll be in contact with you over the next few weeks to discuss your return.

34    The applicant’s evidence was that when she did not hear again from Dr Hancock, she telephoned on 10 June 2010. She said that she could not speak to Dr Hancock and spoke to Ms Gillies instead and that Ms Gillies said words to the effect:

A decision has been made that your position is not required, going forward, and a letter has been sent to you in the mail … advising you to attend a meeting at SYC to discuss your other options.

Ms Gillies said that she could not recall this conversation and thought it unlikely that she had been involved in this aspect of the implementation of the applicant’s redundancy. It is possible that the applicant is mistaken about having a conversation with Ms Gillies but I consider it to be unlikely. Accordingly, I accept that the applicant did speak to Ms Gillies. The applicant also said that Ms Gillies told her that she would receive the letter on 15 June. I consider that it is improbable that Ms Gillies would have predicted the date of receipt of the letter in that way and do not accept that Ms Gillies included that statement.

35    The applicant was distressed by Ms Gillies’ news but soon after began looking for alternative work.

36    Dr Hancock telephoned the applicant on 15 June 2010 and told her of the following:

(a)    She had sent a letter informing her that SYC was looking at its operational costs and that her position of Manager – Marketing and Events had been selected on a preliminary basis for redundancy;

(b)    That SYC wished to discuss these matters with her at 9.30am the next day and that she could bring someone with her to the meeting;

(c)    That SYC did not have alternative roles in mind;

(d)    That no decisions would have to be made at the meeting the next day.

37    The applicant deposed that Dr Hancock had also said that SYC had not discussed the proposed redundancy with her earlier because it had been waiting to hear her intentions concerning return to work. Dr Hancock disputed making this additional statement. I think it unlikely that Dr Hancock did add these words: it would have been untrue had she done so. I think that it is more likely that the applicant has misconstrued something else said by Dr Hancock.

38    When the applicant did not receive the letter foreshadowed by Ms Gillies and Dr Hancock, she made an inquiry of Mr Dyer. Mr Dyer sent her a copy of the letter, dated 11 June 2010 and signed by Dr Hancock, which contained the following:

Dear Sarah,

RE:    Preliminary selection for redundancy & notice to attend meeting

SYC management has recently conducted a review of its business operations.

As a consequence we advise that the position of Manager, Marketing & Events, 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 9:30am on Wednesday, 16 June 2010 in my office. A 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.

Following this meeting, you are not required to report for work until the next meeting which will be at 3.00pm on Wednesday 23 June 2010, again in my office. We, however, would ask that you put any submissions or suggestions that you may have in writing to us by no later than 5.00pm Monday 21 June 2010.

For the interim period between meetings you will continue to be on maternity leave. Please contact Lee Dyer at any time prior to the meeting on 23 June 2010 if you wish to discuss matters further.

39    The applicant attended the meeting on 16 June 2010, taking with her a support person. Dr Hancock and Mr Dyer were present at the meeting.

40    Dr Hancock told the applicant that SYC had reviewed its marketing activities as part of a “restructure across the board” and that her duties had been absorbed into other areas. Mr Dyer said that the applicant’s role had been selected for redundancy “on a preliminary basis” but that a final decision had not yet been made. Dr Hancock confirmed that there were no other roles within the marketing and communications department for the applicant. Mr Dyer mentioned that the role of Assistant to the Board may be suitable to the applicant and provided her with a copy of the job and competency profile for that position. This was a part-time position (7/10) with a salary of $38,000 per annum. Mr Dyer repeated that a final decision about the applicant’s Marketing Manager role had not yet been made and said that the applicant had the opportunity to provide SYC with any options or suggestions. He also gave the applicant an indication of the redundancy pay she would receive if retrenched (equivalent to 11 weeks’ pay).

41    The applicant said that, following a short adjournment of the meeting, Mr Dyer said that the decision had been made to make the applicant’s position redundant and that it was now up to her to provide any suggestions with might cause SYC to change its mind. This account was denied by Dr Hancock and Mr Dyer was not cross-examined about it. The applicant did not call evidence from her support person, Ms Allard, to corroborate her account. Given the emphasis that SYC was evidently putting on its position that a preliminary decision only had been made, I consider it improbable that Mr Dyer made any statement other than that SYC had made only a preliminary decision. I reject the suggestion in the applicant’s evidence to the contrary.

42    On Monday, 21 June 2010, the applicant emailed a letter to Dr Hancock in which she expressed disappointment at losing her job; stated her belief that the decision to terminate her employment was unfair, unjust and unreasonable; and asserted that her position had been targeted or selected for redundancy because she was on maternity leave. The applicant went on to state her acceptance that the decision to terminate her employment had been made and that her position was redundant. After noting Mr Dyer’s intimation as to the redundancy payment she would receive, the applicant counterclaimed 18 weeks’ severance pay in addition to a four week notice period. The applicant then foreshadowed a complaint to the Australian Human Rights Commission.

43    Dr Hancock responded by letter of 23 June 2010 stating that the applicant’s position at that stage had been identified on only a preliminary basis for redundancy. She refuted the applicant’s claim that she had been targeted or selected for redundancy because of her maternity leave or because of her sex and pregnancy. Dr Hancock referred again to the part-time position of Assistant to the Board. She said that the next meeting would now take place at 3.00pm on 25 June 2010. Dr Hancock did not refer expressly to the counterclaim which the applicant had made for redundancy pay but confirmed the amount of her entitlement as indicated at the meeting on 16 June.

44    The applicant attended the meeting on 25 June 2010. It was a brief meeting. Dr Hancock and Mr Dyer handed her a letter dated 25 June 2010 which provided as follows:

Dear Sarah

RE:    Notification of termination of employment on the grounds of redundancy

We refer to our letter dated 11 June 2010 and our earlier meeting of 16 June 2010.

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. Hence, we now confirm that we have decided to make your position of Manager, Marketing & Events, 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 will officially cease as of 5.00pm on 23 July 2010. However, effective as of now, you are no longer required to work at SYC. Severance pay, payment in lieu of notice and any annual leave owed to you to 23 July 2010 will be paid out by electronic transfer to your nominated bank account.

A few days later, the applicant received payment of her entitlements.

45    The applicant had applied for the position of Marketing and Communications Officer with the City of Salisbury. She was told on or before 2 July 2010 that her application had been successful and she commenced in the new position before her employment with SYC formally terminated on 23 July. The applicant received a salary of $61,293 per annum in addition to superannuation in this position.

46    The applicant continued in employment at the City of Salisbury until September 2013, when she commenced as Manager, Marketing and Events at Minda Incorporated. She remains in that employment. Her current salary is $71,995.81.

The legislative provisions and matters of approach

47    The applicant claims that SYC’s statements that her role was made redundant following an organisational review of its operational needs and because there was no suitable alternative position available should not be accepted. She contends that SYC has contravened s 14(2) of the SD Act. Section 14(2) provides (relevantly):

(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:

    …

    (c)    by dismissing the employee; or

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

48    Section 5 of the SD Act defines discrimination on the ground of sex:

5    Sex discrimination

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

(a)    the sex of the aggrieved person;

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

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

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

49    Section 7 of the SD Act defines discrimination on the ground of pregnancy in similar terms by substituting the words “pregnancy” and “potential pregnancy” for the word “sex”.

50    Section 7A defines discrimination on the ground of family responsibilities:

7A    Discrimination on the ground of family responsibilities

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.

51    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.

52    The expression “family responsibilities” used in s 7A is defined in s 4A to mean (relevantly):

… the responsibilities of a person to care for or support:

(a)    a dependant child of the person.

53    Section 7 has been held to operate exclusively of s 5. That is to say, in those cases in which a woman claims to have been treated unfavourably because of her pregnancy, or because of a characteristic that pertains generally to, or is imputed to, pregnant women, s 7 operates to the exclusion of s 5: Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at 327-8; Thomson v Orica [2002] FCA 939 at [170]; (2002) 116 IR 186 at 230-1.

54    The phrase “by reason of” used in ss 5(1) and 7A has been held to have the meaning of “because of”, “due to”, “based on” or words of similar import which bring something about or cause it to occur: HREOC v Mt Isa Mines at 321-2; Thomson v Orica at [159]-[161], 227-8. 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. The “but for” test may be employed as “useful checking exercise” but does not usually constitute a satisfactory causal inquiry, at least without considerable care: HREOC v Mt Isa Mines at 326.

55    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 its use of the phrase “by reason of”: Thomson v Orica at [20], 190.

56    As already noted, the applicant claims that she was “targeted” for dismissal for a proscribed reason. The relevance of motive, purpose and intention in the context of anti-discrimination legislation has been considered in a number of the authorities: Purvis v State of New South Wales [2003] HCA 62 at [236]; (2003) 217 CLR 29 at 163; Thomson v Orica at [158]-[161], 227-8; HREOC v Mt Isa Mines at 324-5. For present purposes, it is sufficient to note 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: Purvis v NSW at [236], 163; HREOC v Mt Isa Mines at 325; Thomson v Orica at [161], 228.

57    The notions of discrimination in ss 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.

58    By s 106 of the SD Act, an employer will be vicariously liable for acts done by an employee in contravention of s 14 unless the employer establishes that it took all reasonable steps to prevent the employee from doings acts of the unlawful kind (subs (2)). SYC did not seek to invoke this proviso.

59    The Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) provides the means of redress for conduct 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. Section 14 of the SD Act is contained within Part II of that Act.

60    A complaint of unlawful discrimination is to be dealt with initially by the President of the Australian Human Rights Commission (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.

The allegation of “targeting”

61    It is necessary to make specific findings regarding the matters on which the applicant relied for the allegation that she had been “targeted” for dismissal in consequence of the announcement of her pregnancy.

The announcement of the pregnancy and Mr Edginton’s reaction

62    The applicant said that when she told Mr Edginton of her pregnancy at a restaurant in early August 2009 and of her intention to take four months’ maternity leave, he responded by saying “I am shocked” and, later, by saying “Was it planned? I didn’t think you wanted to have kids this soon”. She said that she was hurt by Mr Edginton’s response; and that he had looked as though he was disappointed in her and that she was letting him down. The applicant said that Mr Edginton’s response gave her at that time “grave concern that having a baby would stop my career from developing”. The applicant also said that Mr Edginton’s shock and subsequent lack of support made her feel anxious about the security of her role within SYC.

63    Mr Edginton recalled being told by the applicant that she was pregnant but could not recall the precise content of the conversation. Based on his usual practice and sense of propriety, he denied that he said the words which the applicant attributed to him. He acknowledged that he may have said words such as “Oh wow” or “Great”, and did recall saying something to the effect of “I didn’t think this is what you were planning”. He said that was because the applicant had told him on a number of occasions that she was ambitious and career-driven and that having children was not part of her plans. He denied being disappointed at the applicant’s news.

64    Mr Edginton said that the applicant had not raised any concern with him about the negative reaction which she alleged. He said that the first he learned of the applicant’s account of the conversation and of the disappointment which she attributed to him was when he read the applicant’s statement of claim filed in these proceedings on 24 May 2013.

65    I am willing to find that Mr Edginton did say words of the kind which the applicant attributed to him. I accept that that was so because, having regard to what the applicant had told him previously about her ambitions and not having children, her news was surprising to him. However, I am satisfied that Mr Edginton used those words with a benign connotation and that he did not convey any note of disappointment or disapproval. He and the applicant had a close working relationship. In that context and, having regard to what the applicant had told him previously, his response was understandable and benign.

66    As noted earlier, the applicant’s amended statement of claim alleged that Mr Edginton’s response amounted to sexual harassment in contravention of s 28B of the SD Act. However, the applicant indicated five days before the commencement of the trial that she did not pursue that allegation. It is therefore not strictly necessary for me to make a determination about that allegation. However, given that the allegation was made in a document accessible to the public, it is appropriate that I record my view that Mr Edginton’s words could not reasonably be regarded as constituting sexual harassment as defined in s 28A of the SD Act.

67    I consider that this is an instance of the applicant seeking, retrospectively, to attach significance to an event which is not justified.

Office relocation

68    In September 2009, a relocation of offices at the Currie Street premises occurred. Mr Edginton moved into the office previously occupied by the applicant, Ms Colebeck and Ms Foreman. Those three persons moved to an open-plan area which also accommodated other SYC employees and which was not far from their previous location.

69    The applicant relied on her relocation and the process by which it was handled as evidencing the “targeting” of her for dismissal.

70    I accept Mr Edginton’s evidence concerning the relocation. The office from which the applicant and her colleagues were moved had previously been occupied by Mr Edginton. However, until early September 2009, he had occupied an office near the reception area in the Currie Street premises. He had become concerned for his safety in early September 2009 when a violent SYC client had come to the reception area demanding to see him. It was those concerns which prompted the relocations. The applicant acknowledged that this was the explanation she had been given at SYC for the relocation, although it had not been given when the move actually occurred. I am satisfied that the relocations had nothing to do with the applicant’s pregnancy.

71    Again, I consider that the significance which the applicant wished to attach to this event resulted from her tendency to view every slight or perceived disadvantage occurring after the announcement of her pregnancy as attributable to that pregnancy. This is one of the instances which has caused me to treat the applicant’s evidence with circumspection.

Mentoring meetings

72    Until August 2009, the applicant had met Mr Edginton every two months or so for mentoring/coaching purposes. Mr Edginton was the applicant’s direct supervisor and his own professional background involved business coaching.

73    The meeting at which the applicant informed Mr Edginton of her pregnancy was the last meeting of this kind. The applicant said that this was because Mr Edginton did not schedule any further meeting and that he had not provided any explanation for not doing so. Because of her maternity leave, there could have been only another two or so meetings in any event.

74    Mr Edginton accepted that there had been no further meetings and that he had not provided an explanation to the applicant for that circumstance. He said that the reason was “fairly obvious” to anyone working at SYC. The significant demands arising from the growth of SYC meant that he simply did not have the time to continue to provide coaching/mentoring to anyone, and he had ceased doing so not only for the applicant but for others within and outside SYC. It is not necessary to refer in detail to the growth in SYC’s activities. For present purposes, I accept that SYC had, by the end of 2009, grown significantly in a period of about two years, almost doubling its workforce and the locations from which it operated. As CEO, Mr Edginton was fully engaged in managing a much larger operation than had been the case when the applicant commenced in 2006 and again when she was appointed to the position of Marketing Manager in 2008. I accept Mr Edginton’s evidence about these matters and his evidence as to the cessation of the mentoring sessions with the applicant.

75    I consider that the cessation of the mentoring/coaching sessions cannot reasonably be regarded as evidence of the “targeting” alleged by the applicant, let alone part of that “targeting”.

The senior management meetings

76    Before September 2009, the applicant had been a participant in the monthly senior management meetings at SYC. Those meetings were attended by Mr Edginton (and his personal assistant), the Chief Operating Officer (Mr Furniss), the Finance Manager, the General Managers of three operating divisions, two Business Development Managers, Ms Gillies, the Executive Manager, the Manager of Corporate Services, and the Manager, Policy and Research (then Dr Hancock).

77    In September 2009, Mr Edginton told the applicant that she was no longer required to attend the senior management meetings. The applicant contended that this preclusion was part of the “targeting conduct”.

78    Mr Edginton said that he had decided that the applicant and others should no longer attend the senior management meetings because the meetings had become unwieldy with so many people attending. In addition to the applicant, he asked three others not to attend, being one of the General Managers and the two Business Development Managers. Mr Edginton denied that his decision had anything to do with the applicant’s pregnancy or foreshadowed maternity leave.

79    In her cross-examination, the applicant agreed that the numbers attending the senior management meetings had increased over time and acknowledged that others had also been asked to cease attending. She acknowledged the possibility that this was part of a “scaling back”.

80    I accept Mr Edginton’s evidence about these matters. I find that the numbers attending the senior management meetings were reduced for reasons of efficiency and that Mr Edginton’s direction to the applicant had nothing to do with her pregnancy or pending maternity leave. This is another instance of the applicant attaching unjustified significance to a perceived adverse event.

The conversation with Mr Furniss

81    The applicant gave evidence of a conversation with Mr Furniss, SYC’s Chief Operating Officer, shortly before she commenced her maternity leave. Mr Furniss inquired about her plans, including how long she was planning to be on leave. The applicant said that during the conversation Mr Furniss said:

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

…

My wife returned to work too early and couldn’t cope and quit work.

The applicant said that she responded to the following 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.

82    The applicant said that Mr Furniss’ comments made her feel inadequate; increasingly worried that she would not be able to work and have a baby; hurt and humiliated; and as though she was doing something wrong. She relied on this conversation as another incident of the “targeting” conduct of SYC and its senior officers.

83    Mr Furniss was not, and never had been, the applicant’s line manager. He had no involvement in the activities of the Marketing Department or of the Communications and Strategy Department. Mr Furniss played no part in the decision to retrench the applicant. The interactions which he had with her occurred in his role as Chief Operating Officer and in the incidental conversations which occurred in the SYC office from time to time.

84    Mr Furniss said that he could not recall having any conversation with the applicant regarding her pregnancy or parental leave and said that, if he had had such a conversation, it would not have included the statements attributed to him. He said that he would not have spoken to the applicant about his wife and, in any event, it was not the case that his wife had returned to work “too early”, had been unable to cope and had quit work. His wife had in fact returned to work in a part-time capacity five months after the birth of their son and had continued in that capacity.

85    In her amended statement of claim, the applicant alleged that the statements which she attributed to Mr Furniss in this conversation amounted to sexual harassment, within s 28A of the SD Act, but this claim was abandoned five days before the trial. As in the case of Mr Edginton, I indicate my view that the comments which the applicant attributed to Mr Furniss cannot reasonably be regarded as sexual harassment as defined in s 28A of the SD Act.

86    I considered that Mr Furniss was an honest witness. I observe that there is a minor discrepancy between his evidence in this case and that which he gave before me in Ms Stanley’s action as to the period after the birth of their son before his wife returned to work, but I do regard his evidence as reliable. I accept his evidence that his wife had returned to work after the birth of their son and had remained at work. That makes it improbable that he made the statement concerning his wife which the applicant attributes to him.

87    I accept that Mr Furniss may well have cautioned the applicant in the manner of a friendly work colleague about committing herself too firmly to a return to work date. That would be in keeping with what Mr Furniss described as his usual approach when talking to pregnant employees. He said that he tells them that they should keep in touch regarding their return to work and communicate when they would like to do so, that being a practical approach as a return to work date is often difficult to predict.

88    On my assessment, words of that kind are benign and of the nature of well-intentioned advice. I consider that the applicant would have understood them in that way. Having regard to the nature of the comments and his role in SYC in relation to the applicant, Mr Furniss’ comments cannot reasonably be regarded as evidence that SYC was “targeting” the applicant for termination, or in any other way treating her adversely because of her pregnancy, maternity leave or family responsibilities. This is another instance of the applicant attaching a sinister connotation to an incident in the context of seeking to advance her present claims against SYC.

89    It did not enhance the applicant’s credibility that she had, in her amended statement of claim, made the serious and potentially harmful allegations of sexual harassment by Mr Edginton and Mr Furniss on a flimsy basis, and had abandoned those allegations only five days before the commencement of the trial.

The November-February restructuring

90    In the period from November 2009 to February 2010, SYC restructured its management of marketing, communications and events. The restructure culminated in Dr Hancock moving from her position as Manager, Policy and Research to a new position of Manager, Communications and Strategy. The applicant was appointed as Manager, Marketing and Events and reported to Dr Hancock.

91    I make the following factual findings regarding the restructure. Before the restructure, the Marketing Department comprised the applicant as Marketing Manager, Clare Colebeck as Marketing Assistant and Alicia Foreman, who was a part-time assistant. The duties for which the applicant had responsibility included:

(a)    managing events including the SYC Quiz Night, expos and fundraising events;

(b)    publication of the “Inspire” magazine, which included writing, editing, and liaising with photographers;

(c)    designing, printing and distributing marketing “collateral” such as SYC merchandise and business cards;

(d)    managing the SYC websites, including content, style and updating;

(e)    managing use of the SYC brand by, for example, ensuring that it was being used in accordance with style guides;

(f)    advertising on behalf of divisions of SYC and the organisation as a whole, whether in general promotion or in job advertisements;

(g)    assisting Dr Hancock and Mr Edginton to write grant applications for HYPA Housing projects;

(h)    designing and distributing signage; and

(i)    managing the marketing team.

92    When the restructure came into effect on 1 February 2010, the Marketing and Communications Department comprised Dr Hancock as Manager, the applicant, Ms Bradford as Senior Project Officer, Ms Colebeck (who was promoted from Marketing Assistant to Marketing and Events Coordinator), and Ms Foreman as a part-time marketing assistant. Ms Bradford had worked with Dr Hancock in her previous role and moved to the Communications and Strategy Department with her. She left SYC shortly afterwards and Ms Fuss then commenced in her place.

93    Mr Edginton gave evidence as to the reasons for the restructure. He said that SYC “needed to move away from ‘traditional marketing’ and events as a way of obtaining and keeping business … and towards high quality direct communications”. Mr Edginton believed the change to be warranted for three reasons. First, the majority of SYC’s clients did not come to the organisation independently but on referral pursuant to funding agreements with the Commonwealth government, with the effect that there was less need to market SYC more broadly in a traditional manner. Secondly, it had become apparent that the best way for SYC to grow and obtain new business was by winning further tenders from government and other organisations for the provision of services. This meant that SYC had to put more emphasis on written communications adapted to that end. Thirdly, SYC was experiencing some community resistance to the development of HYPA Housing, which meant that it needed to develop means of communicating which would allay local concerns.

94    Mr Edginton considered that Dr Hancock should be appointed as Manager, Communications and Strategy because she had strong written communication and research skills and had experience in conducting detailed and complex research. He contemplated that, as Manager, Communications and Strategy, Dr Hancock would be responsible for the promotion of SYC at a higher level than that performed by the applicant. Mr Edginton said that, while he regarded the applicant as a skilled marketing and events manager, her communication skills were less advanced than those of Dr Hancock. He proposed initially that the applicant continue in a position entitled Manager, Events, but later revised that to Manager, Marketing and Events to accommodate some of the applicant’s concerns.

95    The restructure just outlined developed during November and December 2009 and January 2010. This included revision from time to time of the position titles and of the respective job descriptions.

96    The applicant said that she first learned of the proposed restructure at a meeting with Mr Edginton in November 2009. Other evidence (which I accept) indicates that the meeting occurred on 27 November 2009. The applicant said that Mr Edginton said words to the following effect:

We have recently undergone an organisational restructure and the role of marketing manager no longer exists. Here is a role of Manager, Events for you to consider. This role will report to the Manager, Marketing and Strategy which has not been created yet but we are talking to Janette Hancock about taking it on.

At the same time, Mr Edginton gave the applicant a job and competency profile for the position of Manager, Events.

97    The applicant said that she was extremely surprised by this news. She had not been aware that any review or restructure of the marketing division was contemplated. Her immediate impression was that she was being demoted. I accept the applicant’s evidence about her surprise and her reaction to the news. It is evident that Mr Edginton was disclosing his plans to her for the first time.

98    Shortly after the meeting, the applicant spoke to Ms Gillies. She told Ms Gillies of what Mr Edginton had conveyed to her and said that she wished to understand what this meant for her. Ms Gillies responded with words to the effect:

If the role no longer exists then it is redundant, and if that is the case it will be made redundant from SYC.

The applicant then obtained from Ms Downey in the Human Resources Department advice as to the extent of the severance payment to which she would be entitled in the event that she was retrenched.

99    Later on 27 November 2009, the applicant met Mr Edginton and Dr Hancock. They discussed the new structure and what it would mean for the applicant. The applicant raised some concerns about being limited to the role of Manager, Events. The applicant suggested merging Ms Colebeck’s position with that of Ms Daw, a Marketing Coordinator in the Training Prospects Division of SYC. The participants also discussed the respective responsibilities of the Manager, Events role and the role to be filled by Dr Hancock, and agreed that the respective job descriptions should be checked to ensure their accuracy.

100    On 30 November 2009, the applicant sought written confirmation from Ms Gillies of the content of their discussion on 27 November. The evidence did not disclose whether or not that written confirmation was provided.

101    On 1 December 2009, the applicant sent an email to Mr Edginton and Ms Gillies, the substance of which was as follows:

I am writing in relation to discussions last week about the role of “Marketing Manager”, “Manager – Marketing and Strategy” and “Manager – Events” within SYC.

It is my understanding from these discussions that the role of “Marketing Manager” that I currently occupy no longer exists due to an organisational restructure and is therefore a redundant role.

Subsequently, I have been offered the role of “Manager – Events” and have been given the opportunity to read and review the job profile for this role.

After reading this job profile and after discussions with Janette Hancock I have made the decision that I don’t want accept this role for the following reasons:

▪    I feel that I am overqualified for this role

▪    This role does not meet my career aspirations

▪    This position is less responsibility and not at a “manager” level

▪    There is a large focus on events in this role and [this] is not an area of interest to me

I feel that my skill set suits a “Marketing Manager” role. Given my tertiary qualifications I feel there is no other suitable role within the organisation apart from the role I am currently in. I feel that a role with a large focus on events does not reflect my career goals and the career path I have been working towards during my nearly 4 years at SYC. If I was to accept this role within the organisation I believe it would be backwards step in my career.

Given that the responsibilities of a Manager to manage the marketing team still exist but in the role of “Manager – Marketing and Strategy”, … which I was not given an opportunity to apply for, I truly believe there is no role suitable for myself.

I am saddened that my role of Marketing Manager does not exist as I have worked extremely hard to build the department to what it is today. I am also disappointed that the role of “Manager – Marketing and Strategy” was not advertised as I was under the impression that that’s the sort of role I was working towards, from prior meetings and discussions I have had with you.

I would appreciate a written response to this and the opportunity to discuss my options further.

102    As can be seen, the applicant said that she was not interested in the role of Manager, Events and expressed her belief that SYC did not have a suitable role for her. In her evidence the applicant said that when she sent the email she knew that a possible consequence could be that she would be made redundant, but she was not prepared to accept a position for which she was over-qualified.

103    About one week later, the applicant met Mr Edginton and Ms Gillies again. Mr Edginton proposed that the applicant take a position entitled Manager, Marketing and Events and provided her with a job and competency profile for that position. The duties in this position were similar to those which she had performed previously as Marketing Manager, save that overall responsibility for decision-making and strategy with respect to marketing would lie with Dr Hancock. The proposal was that the applicant would have operational responsibility for the lower level duties which she had performed as Marketing Manager.

104    There were some subsequent meetings about the applicant’s proposed new role but the evidence did not disclose the detail of the discussions. Ultimately, the applicant accepted the position of Manager, Marketing and Events and, as noted previously, the new structure came into effect on 1 February 2010.

105    The applicant’s case was that the restructuring in November 2009 to February 2010 was part of the “targeting” conduct. Counsel submitted that it was a “logical inference” that SYC had been looking to place the applicant into a role which could be dispensed with easily when she commenced her maternity leave. He emphasised that the applicant had not been permitted to apply for the position of Manager, Communications and Strategy, despite her tertiary qualifications and job experience. Counsel submitted, in addition, that the applicant had been led by Mr Edginton to believe that she was working towards the role of Manager, Communications and Strategy. However, the evidence upon which counsel relied for this particular submission does not support it. Nor did any other evidence indicate that Mr Edginton had led the applicant to believe that she could perform the role of Manager, Communications and Strategy, although the applicant had told him that this was her aim.

106    In effect, the applicant’s submission was that, at a time when it was evident that she would be absent from SYC for at least several months, she had been manoeuvred into an inferior position with another employee appointed as her superior who would, in effect, carry out most of her previous responsibilities.

107    I consider that there is force in some aspects of the applicant’s critique of the restructure. It is evident that the job descriptions for the applicant’s former position of Marketing Manager and that of Dr Hancock’s position as Manager, Communications and Strategy contained a number of similarities and were, in some respects, identical. This made it almost inevitable that Dr Hancock would carry out functions previously performed by the applicant, thereby diminishing the applicant’s role. By itself this raised real questions about the viability of the applicant’s continued employment, even if she had not been pregnant. In addition, the changes made it almost inevitable that the applicant would find her new role less satisfying than the previous position of Marketing Manager. The circumstance that the applicant was no longer to report to Mr Edginton as the CEO, but instead to Dr Hancock, also carried with it implicitly some diminution in her status.

108    In these circumstances, the applicant’s anxiety about her position and sense of grievance is quite understandable.

109    However, despite those matters, I do not accept that the restructuring of the Marketing Department which took place between November 2009 and February 2010 was occasioned by the applicant’s pregnancy, or that it amounted to a “targeting” of the applicant for termination because of her pregnancy, or that in some way SYC took advantage of the restructuring to facilitate the termination of the applicant’s employment by reason of her pregnancy or pending maternity leave and family responsibilities.

110    First, I accept Mr Edginton’s evidence, as outlined above, of the reasons for the restructure. His view that SYC needed to change the strategic direction of its marketing was not really challenged in the cross-examination. SYC’s growth and the change in the source of its clientele made it very plausible that it would change its strategies, and had outgrown the structures which had suited it previously. Mr Edginton’s evidence was supported by Ms Gillies. She said that in November 2009 she had had a number of discussions with Mr Edginton about SYC’s marketing needs and about changing its focus. Ms Gillies said that she agreed at the time with Mr Edginton’s assessment that SYC needed “a highly strategic externally focussed communications function rather than an operational and largely inwardly focussed marketing department”. Ms Gillies’ evidence also confirms that the discussions concerning SYC’s needs were independent of any discussion about the applicant. They discussed Ms Poppy only after they had settled on SYC’s revised needs.

111    Dr Hancock also gave evidence that Mr Edginton had discussed with her in November 2009 changing SYC’s focus from general marketing and events to strategic communications.

112    Secondly, I accept Mr Edginton’s evidence concerning the selection of Dr Hancock as the Manager of the restructured department. I regarded that evidence as both plausible and reliable. Mr Edginton did value the applicant as an employee, but that did not preclude him from assessing that, in material respects, Dr Hancock’s skills and experience were superior. Dr Hancock had higher qualifications than the applicant, having a Bachelor of Arts with First Class Honours and a Doctor of Philosophy in gender studies. Dr Hancock’s work experience included employment as a tutor by the University of Adelaide between 2001 and 2007, employment as a research assistant at the University of South Australia from 2007 until July 2008 and, after she commenced at SYC, tender writing and research.

113    Counsel was inclined to be critical of Dr Hancock’s performance in the role of Manager, Communications and Strategy. I take the view now, as I did during the hearing, that the resolution of this case does not require any findings to be made about Dr Hancock’s performance as Manager, Communications and Strategy. What are more important presently, are the reasons of Mr Edginton for preferring Dr Hancock. I accept Mr Edginton’s evidence that he regarded the applicant’s expertise as being in the areas of traditional marketing and as not meeting the expectations of the new role.

114    Thirdly, I am satisfied that, despite his growing appreciation that SYC no longer required the applicant’s marketing skills, Mr Edginton had gone out of his way to retain her as an employee. He did not adopt a “take it or leave it” approach when, in December 2009, the applicant rejected the role of Manager, Events. SYC instead re-arranged the duties in the role proposed for the applicant and renamed the position in an attempt to accommodate the applicant’s concerns. Ms Gillies said that Mr Edginton had been “bending over backwards to try and create a role that Sarah would take”. I am satisfied that that evidence describes accurately the attitude which Mr Edginton had to the applicant’s continued employment with SYC during the development of the restructure of the Marketing Department. Given the attitude of the applicant reflected in her email of 1 December 2009, SYC could, had it been “targeting” her for termination, have made her redundant at that time, relying on the applicant’s own acknowledgment that SYC did not have a role for her. That it did not do so is inconsistent with the applicant’s claim that she was at that time being targeted for termination.

115    For these reasons, I reject the applicant’s claim that the restructuring of the Marketing Department which occurred between November 2009 and February 2010 evidenced a “targeting” of her for termination or that it was a “manufactured situation” in order to facilitate her termination. The restructuring occurred for reasons which were independent of the applicant’s pregnancy and pending maternity leave. The circumstance that the restructuring occurred shortly before the applicant was to commence her maternity leave does not warrant the inference that there was a causal relationship between the two events.

Conclusion on the allegation of “targeting”

116    For these reasons, I reject the applicant’s claim that she had been “targeted” for dismissal as a consequence of her pregnancy, the birth of her child and her maternity leave. In particular, I reject her claim that the “targeting” had commenced after she informed Mr Edginton of her pregnancy and reject her claim that each of Mr Edginton, Mr Furniss, Ms Gillies, Mr Dyer and Dr Hancock had engaged in that targeting. I make the positive finding that there had not been any “targeting” of the applicant at all, let alone in consequence of her pregnancy, the birth of her child and her maternity leave.

The reasons for the retrenchment

117    I made findings earlier regarding the circumstances of the termination of the applicant’s employment. This section of the reasons is directed to the question of whether that termination was for a proscribed reason.

118    Mr Edginton was the decision-maker, but he relied on advice and information provided by Dr Hancock in particular. He made the decision that the applicant’s position was redundant on 11 June 2010.

119    After Dr Hancock received the applicant’s email of 19 May, she began to consider whether SYC needed anyone to perform the role of Manager, Marketing and Events. Dr Hancock concluded that it did not: a number of the aspects of the applicant’s work had been outsourced, other aspects were being performed by Ms Colebeck and Ms Fuss; she herself had taken on the development of SYC’s marketing strategy, management of the marketing team, management of marketing and events more broadly, the writing of grant applications and the management of the SYC brand; and there would be a cost saving for SYC of approximately $65,000.

120    Dr Hancock discussed her conclusion with Mr Edginton at a meeting on 8 June 2010. Mr Edginton considered that Dr Hancock’s conclusion was sound for the reasons which she gave. However, he asked Dr Hancock to have Ms Gillies review the reasoning and the soundness of the conclusion.

121    Dr Hancock met Ms Gillies a day or so later for that purpose. Ms Gillies took her role seriously and, in fact, regarded herself as a decision-maker in relation to the redundancy. That was because SYC policy required a redundancy decision to be approved by the People and Culture team. Ms Gillies considered that Dr Hancock’s rationale and reasoning was “an appropriate business decision”. However, her evidence indicated that a primary focus in the review was the lawfulness of the proposed termination. I accept Ms Gillies’ evidence that Dr Hancock did not include as part of her rationale matters relating to the applicant’s pregnancy or maternity leave and that she herself did not rely on those matters in giving her approval.

122    Dr Hancock reported the results of Ms Gillies’ review to Mr Edginton on 11 June 2010. Mr Edginton then, on the basis of Dr Hancock’s advice, made the decision that the applicant’s role should be made redundant. He directed Dr Hancock to speak to the People and Culture team in relation to the implementation of the redundancy, and he did not play any part in that implementation.

123    The cross-examination of Mr Edginton and Dr Hancock focussed on the depth and detail of the analysis of Dr Hancock which had led to the redundancy decision. In my opinion, several of the criticisms of the redundancy decision which are based on that cross-examination are justified.

124    Despite the importance which each of Mr Edginton and Dr Hancock said they gave to the cost savings to be achieved by the applicant’s redundancy, SYC did not carry out any detailed analysis of those savings. There was not, for example, a close comparison of the cost to SYC of the outsourcing of the functions previously carried out by the applicant, or of the savings which might be achieved if the applicant resumed the performance of those functions on a return to work. SYC did not carry out an analysis of the functions performed by Mr Franklin, the contractor, to identify which of those could be performed at a cheaper cost by the applicant as an employee.

125    Mr Edginton’s evidence-in-chief (contained in his affidavit) was that cost savings had been a factor in his redundancy decision. However, when taxed with the absence of enquiry as to these matters, he said that it had not been relevant and that the cost savings were an “outcome” of the decision rather than having been a factor in its making. I regarded this particular evidence of Mr Edginton as unconvincing.

126    Other criticisms are that neither of the reviews by Dr Hancock or Ms Gillies was reduced to writing. Dr Hancock acknowledged that she had not reduced her cost savings analysis to writing. In her evidence, Dr Hancock was unable to indicate even approximately the amount of the budget for the Communication and Strategy Department which was being expended on contractors.

127    Dr Hancock said that she had calculated the proportions of the applicant’s duties which had been distributed to others as follows: about 38% to Ms Colebeck, 7% to Ms Fuss, 30% to herself, and 25% outsourced. However, she could not explain how she had reached the two very precise figures of 38% and 7%. Dr Hancock also gave some inconsistent evidence on the topic of whether Mr Franklin, who had been engaged as a contractor to carry out a review of SYC’s marketing functions, had carried out part of the applicant’s duties. Mr Franklin had finished one contract on an unspecified date in June 2010 but commenced as an employee of SYC (Senior Marketing Officer) on 9 August 2010, just over six weeks after the termination of the applicant’s employment was confirmed.

128    There were other aspects of Dr Hancock’s evidence about the cost savings which were unsatisfactory. Her evidence-in-chief was that the savings to SYC from making the applicant redundant were $65,000. In round terms, this seemed to be the applicant’s salary and some of the superannuation contribution. However, Dr Hancock said that this was not the manner in which she had calculated that saving. Instead, the sum of $65,000 comprised a portion of the applicant’s salary, in addition to the various employment on-costs, the figures for which she had obtained from Mr Matthews, SYC’s CFO. Her evidence that she had, as part of the process, spoken to Mr Matthews emerged for the first time in the cross-examination. Dr Hancock was unable to say how she had arrived at the figure of $65,000 on this basis. I did not consider that Dr Hancock’s explanation of the calculation of the saving of $65,000 was convincing and am not prepared to accept it. I consider it more likely that Dr Hancock had simply taken the applicant’s salary and the superannuation contribution as the cost saving, on the basis that if the applicant returned there would be additional expenditure. I am not willing to conclude that Dr Hancock had assessed the cost savings which may result from a reduced outsourcing of functions if the applicant did return.

129    I consider that the applicant’s submission to the effect that SYC’s analysis was superficial is justified. In particular, I conclude that Dr Hancock’s recommendation to Mr Edginton was a somewhat superficial assessment of the circumstances. In my opinion, Dr Hancock was satisfied with the way in which the Communication and Strategy Department was working during the applicant’s absence on maternity leave. As indicated, that had been achieved by various members within the department absorbing the applicant’s duties and others being outsourced. When the applicant indicated on 19 May 2010 her plans for her return to work, Dr Hancock took the view that, given the existing arrangements, there was no, or insufficient, work for the applicant to perform as she did not wish to disturb the existing arrangements. On that basis, she made the recommendation to Mr Edginton that the applicant’s role was redundant and that a cost saving to SYC of the order of $65,000 could be achieved. Mr Edginton accepted Dr Hancock’s reasoning without requiring more detail. I consider that his attitude at the time was informed by the appreciation which he had developed during the time of the restructure in late 2009 that the applicant’s role would no longer be required and that SYC did not need her level of expertise. Because he had that appreciation, Dr Hancock’s recommendation was not surprising to him. This may be the explanation for his omission to require a more rigorous and detailed rationale from Dr Hancock.

130    However, to conclude that SYC’s analysis was superficial is not to conclude that it was wrong or that it masked an underlying “targeting” of the applicant for dismissal for a proscribed reason.

131    I accept Mr Edginton’s evidence that his decision that the applicant’s position was redundant was not based on her pregnancy, gender or family responsibilities. It was, as he said, because of SYC’s change in focus from marketing and events to more directed communications, because the applicant’s duties had been easily absorbed by other employees, and because of the cost savings which would result. I also accept the evidence of Dr Hancock and Ms Gillies to like effect.

132    The applicant’s criticisms of the decision-making process require the reasons proffered by Mr Edginton, Dr Hancock and Ms Gillies to be scrutinised carefully. Having given their evidence that scrutiny, I accept the evidence of each that the applicant’s pregnancy, maternity leave and family responsibilities did not, in a relevant sense, play any part in the decision. I have said “in a relevant sense” because I do consider that it was the applicant’s absence on maternity leave which allowed the alternative arrangements to be tested and to be found satisfactory. It can be said, therefore, that that absence created the circumstance in which SYC concluded that it did not need the applicant’s services. However, for the reasons which follow, this does not amount to discrimination for a proscribed reason.

133    The question to be considered is whether SYC, in contravention of s 7 of the SD Act, treated the applicant less favourably by reason of her pregnancy, maternity leave or family responsibilities than it would an employee who was not pregnant, had not taken maternity leave or who did not have family responsibilities. As noted earlier, this requires a comparison between the applicant’s treatment, on the one hand, and a hypothetical person in the applicant’s position but without her relevant characteristics, on the other. The comparitor in this case is a hypothetical manager of similar seniority and experience to that of the applicant who took approximately four months’ leave with SYC’s consent, and who had an equivalent entitlement to return to work. I referred earlier in this respect to Thomson v Orica Australia Pty Ltd [2002] FCA 939 at [121]-[122]; (2002) 116 IR 186 at 216-7 and Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702 at [42]; (2008) 173 IR 378 at 392.

134    It is also appropriate to refer to the decision of the High Court in Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. The issue in that case was whether a school had discriminated against a student because of his disability in contravention of s 22(1) of the Disability Discrimination Act 1992 (Cth) (the DD Act) by suspending, and later excluding, the student from school on the ground of his violent behaviour resulting from a severe injury suffered as a baby. Section 5(1) of the DD Act defined “discrimination” in terms similar to those contained in ss 5, 7 and 7A of the SD Act. The majority concluded that the comparison contemplated by s 5(1) of the DD Act required consideration of all the objective features surrounding the person. In the circumstances in Purvis, that included the student’s violent behaviour (Gummow, Hayne and Heydon JJ at [223]-[225], 160-1). This required comparison of the treatment of the student with that of another student who behaved violently, but for reasons unassociated with a disability. Callinan J, while giving additional reasons, agreed with the reasoning of Gummow, Hayne and Heydon JJ (at [273], 175). In separate reasons, Gleeson CJ held at [11], 101:

The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. … The fallacy in the appellant’s argument lies in the contention that, because the pupil’s violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conducted persisted, expelled, in less time than the pupil in this case.

(Emphasis added)

135    The application of this reasoning in the present case requires, in relation to s 7, that the reason for the applicant’s absence on leave and, in the case of s 7A, the reason for the applicant’s desire to have flexible working arrangements, be ignored. That means, as I have said, that the relevant comparison is with a hypothetical employee of comparable status and experience to that of the applicant who is absent from work for about four months on leave (and with an entitlement to return to work) and, in the case of s 7A, with an entitlement to flexible working arrangements. The applicant accepted that this hypothetical person was the appropriate comparitor.

136    On that basis, the applicant does not, in my opinion, establish discrimination of the proscribed kind. There is no basis upon which it can be concluded that the applicant was treated less favourably because her leave was related to her maternity or because of her family responsibilities. SYC’s restructure of its marketing department was for reasons entirely unrelated to the applicant’s pregnancy. The restructure and the change in marketing focus which underpinned it resulted in SYC having only a reduced need for the applicant’s skills. Based on its experience during the applicant’s absence, SYC decided that it could manage satisfactorily without her employment.

137    It remains to refer to the applicant’s submission based on a “but for” analysis, that is, that but for the applicant having taken maternity leave her roles would not have been absorbed by others, and on that basis the requisite causal relationship was established. For the reasons already given, an analysis along these lines does not establish discrimination of the proscribed kind.

138    Accordingly, I consider that the contraventions of the SD Act claimed by the applicant fail and that that part of her application must be dismissed.

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

139    Chapter 2, Part 2-2 of the FW Act establishes a number of “National Employment Standards”. Section 44 of the FW Act makes it unlawful for an employer to contravene one of these Standards. Subject to two confined exceptions, a civil penalty may be imposed in respect of any breach of the National Employment Standards.

140    Section 65 of the FW Act contains one such standard. It permits certain employees, including the parent of a young child, to request a change in their working arrangements to make them more flexible and obliges the employer to respond to the request within 21 days. 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.

Note:    Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(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.

(5A)    Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:

(a)    that the new working arrangements requested by the employee would be too costly for the employer;

(b)    that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;

(c)    that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;

(d)    that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;

(e)    that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

(6)    If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

141    The applicant submitted that her email of 19 May 2010 addressed to Dr Hancock was a request to which s 65(1) referred. Apart from the acknowledgment from Dr Hancock on 21 May 2010, the applicant did not receive any response to that request until she spoke to Ms Gillies on 10 June 2010 and did not receive a written response until 15 June 2010. The 21 day period for the response fixed by s 65(4) expired on 9 June 2010. In these circumstances, the applicant contended that SYC had contravened s 65 by failing to provide a response at all and, in any event within 21 days, and by failing to provide reasons for the refusal.

142    In my opinion, only the second of these contentions succeeds. SYC’s response was belated but it was implicit in the discussions concerning the applicant’s redundancy during June 2010, in its letter of 11 June 2010, and the foreshadowed termination of her employment, that SYC would not be acceding to the request. In addition, the reasons for that refusal were implicit.

143    SYC submitted that its failure to respond within 21 days should not be regarded as a contravention of s 65 for the reason that the applicant’s email of 19 May 2010, while setting out details of the changes in the working arrangements which the applicant sought, did not, as required by subs (3), set out the reasons why the applicant sought the change. The submission was, in effect, that the applicant’s failure to give reasons denied the email of 19 May effect as a request to which s 65 referred.

144    It is true that the email of 19 May does not contain any express statement of reasons particular to the applicant’s circumstances. It could perhaps be said that such a statement was implicit having regard to what, considered objectively in the circumstances, it conveyed. I note in this respect that Mr Dyer said that when he received the applicant’s email in May 2010, he had regarded it as a request under s 65 of the FW Act. However, it is not necessary to express a concluded view on this issue. Instead, I consider that SYC’s submission should be determined by application of the principles stated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [91]; (1998) 194 CLR 355 at 388-9:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

(Footnote omitted)

Thus, an act done in breach of a condition regulating the exercise of a statutory power is invalid and of no effect if there is a discernible legislative purpose to that effect. The legislative purpose is to be ascertained by reference to the language of the statute, its subject matter and the consequences of rendering the act invalid. Other relevant factors include policy considerations.

145    As the passage in Project Blue Sky indicates, the discernment of legislative purpose, or absence of purpose, as the case may be, often reflects a contestable judgment. SYC emphasised in this respect that s 65 is a penal provision and submitted accordingly that any ambiguity in the provision should be resolved in its favour. It referred to Beckwith v The Queen (1976) 135 CLR 569 at 576, and to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [57]; (2009) 239 CLR 27 at 49.

146    In my opinion, this principle is of limited utility in the present case. The Court is not so much resolving an ambiguity but seeking to identify the legislative intention as to the consequences when a request purportedly made under s 65 does not include reasons. In identifying that intention, regard should be had to the circumstance that s 65 is a beneficial provision.

147    I am unable to discern any legislative intention that a failure by an employee to give reasons for a request for flexible work arrangements will, in all cases, preclude the request from being a request for the purposes of s 65. The circumstances in which employees may make a request pursuant to s 65 are diverse. They are not confined to parents returning from parental leave, or parents with child care responsibilities. In some circumstances, the reasons for the request are likely to be obvious. The present case, when considered objectively, seems to be an example of this kind. However, in other cases, the reasons will be less obvious. This diversity of circumstances makes it unlikely, in my opinion, that the legislature intended that in all cases an omission by an employee to give reasons will, without more, relieve an employer from responding to the request.

148    It is to be expected that s 65 will be invoked by persons without legal training or advice and with a degree of informality. Many employees may know of their entitlement to make the request, but not the precise terms of the statute creating that entitlement. This too suggests that s 65 should not be construed with an eye attuned to technicality. It is reasonable to suggest that the legislature intended that employers should not be able to avoid compliance with s 65 on the basis of some technical deficiency in the way in which a request is framed, at least when they can be taken to know both the nature and purpose of the request.

149    This defence of SYC fails. SYC acknowledged that, if the applicant’s email of 19 May 2010 amounted to a “request”, then she had established a contravention of s 65, albeit of a limited kind. I will return to the consequences of this finding after considering the other claimed contraventions of the National Employment Standards.

Consultation while applicant on unpaid parental leave: s 83

150    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.

The effect of s 83(1) is that an employer who makes a decision which will have a significant effect on the status, pay or location of the position of an employee who is on unpaid parental leave must take all reasonable steps to give the employee information about the effect of the decision and an opportunity to discuss that effect.

151    The applicant submitted that SYC had contravened s 83 in two respects: first, on 18 February 2010 when it redistributed her duties at the commencement of her maternity leave; and, secondly, when it made the decision concerning the termination of her employment.

152    The first claim is untenable and can be disposed of shortly. When the applicant commenced her maternity leave, she used her outstanding annual leave credits. The evidence did not disclose when that leave expired so that her leave became unpaid, but the applicant’s letter in late August 2009 contemplated that that would occur on 7 April 2010. Accordingly, the applicant was not on unpaid parental leave when the alleged decision of 18 February 2010 was made. I reject the applicant’s submission that in February 2010 she was simultaneously on paid leave and unpaid maternity leave.

153    It is pertinent to note again that it was the applicant who recommended the promotion of Ms Colebeck to the position of Marketing Coordinator. It is not to be supposed that SYC’s acceptance of the applicant’s recommendation triggered at that time an obligation by it to give the applicant information about the effect on her own position and the opportunity to discuss it.

154    Further, and perhaps more fundamentally, there was no evidence that SYC had made a decision at 18 February 2010 which would have a significant effect on the applicant’s pre-parental leave position. The only decision which SYC had made at that stage concerned the performance, during the applicant’s absence, of the duties which she had previously carried out. I observe that the applicant did not put to any of SYC’s witnesses that a decision concerning her position as Manager, Marketing and Events had been made as at 18 February 2010. Dr Hancock said that the arrangements for the performance of the applicant’s duties had been made before she commenced as Manager, Communication and Strategy on 1 February 2010, but that she regarded them as temporary. I considered that evidence to be reliable.

155    The applicant made an alternative submission that the relevant decision for the purposes of s 83(1) had been made by March or April 2010 when SYC engaged Mr Franklin as a contractor. This was based on the hypothesis that, if Dr Hancock had turned her mind at that time to the applicant’s return to work, she would have reached the same decision as she did in June 2010. This alternative submission fails. The obligation on employers under s 83 is enlivened by the making of an actual decision. SYC could not be expected to discuss with the applicant a decision which it had not yet made, and would only make when it turned its mind to the matter.

156    In accordance with my previous findings, I proceed on the basis that Mr Edginton made the decision concerning the applicant’s redundancy on 11 June 2010 and that effect was given to the decision on 25 June 2010.

157    In my decision in Stanley v Service to Youth Council Incorporated [2014] FCA 643 also delivered today, I have discussed some aspects of the content of the obligation imposed by s 83. I adopt that discussion in the present reasons without repeating it herein.

158    It is sufficient to note that s 83 requires an employer to take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on the employee’s pre-parental leave position. The applicant submitted that this obliged SYC to provide the rationale for the decision to her and any relevant detail concerning the “substance of the decision”. For the reasons given in my discussion of the content of the obligation in the decision in Stanley, I do not regard SYC’s obligation as being of that kind. Instead, s 83(1) requires that information be given to the employee about “the effect” of the decision and an opportunity to discuss that effect. In some cases, the discharge of that obligation may involve discussion about the rationale for the decision but it cannot be said that s 83 requires this in all cases.

159    In my opinion, the applicant has not established a contravention of s 83. When SYC made the decision that the applicant’s position was redundant, it wrote on 11 June 2010 informing her of that decision and provided that letter to her on 15 June 2010. It foreshadowed that the termination of the applicant’s employment was a possibility, but that it wished to discuss alternatives to such a termination with her. That meeting occurred on 16 June 2010. SYC did tell the applicant of the effect on her position and it did discuss one alternative. This discharged its obligation under s 83.

160    I reject the proposition which was implicit in the applicant’s submissions that SYC was required to justify its decision to her, in the sense of showing that it had a proper basis and that it had excluded all reasonable alternatives.

161    For these reasons, I consider that the claimed contravention of s 83 is not made out.

Return to work guarantee: s 84

162    Section 84 of the FW Act 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.

163    The applicant contended that SYC had breached s 84 by not permitting her to return to her position as Manager, Marketing and Events, or perhaps to some alternative role.

164    The entitlement provided by s 84 arises when an employee ends a period of unpaid parental leave. In the present case, that was to occur on 2 July. However, SYC terminated the applicant’s employment on notice on 25 June 2010. The effect was that the applicant’s employment did not cease until 23 July 2010. This was after the scheduled date of termination of her maternity leave.

165    In these circumstances, there is a question as to whether there was any occasion for SYC to comply with the obligation under s 84. I will proceed on the basis that the obligation was enlivened. See my reasons in Stanley v Service to Youth Council Incorporated [2014] FCA 643 at [221]-[227].

166    However, as at 23 July 2010, the position of Manager, Marketing and Events no longer existed. The applicant could not be returned to that position.

167    Subject to one qualification which I will mention in a moment, SYC did not have an alternative available position for which the applicant was qualified and suited nearest in status and pay to the pre-parental leave position. It did canvass with the applicant the part-time position of Assistant to the Board, but the applicant did not pursue that option. Ms Colebeck’s position was not then available as she had been appointed to the Coordinator’s position on a permanent basis and not just to fill in during the applicant’s absence.

168    The qualification arises from the circumstance that Ms Colebeck’s employment terminated on 18 August 2010 (by her resignation). Ms Colebeck could not say when she had first given SYC notice of her resignation, although her contract of employment required four weeks. If she had given notice of that length, it meant that SYC had that notice some two days before the applicant’s employment formally came to an end on 23 July.

169    SYC did not inform the applicant of Ms Colebeck’s resignation or inquire as to her interest in being appointed to the position of Marketing Coordinator.

170    The applicant contended that by its omission to do so, SYC contravened s 84. Ms Colebeck’s position was inferior to that of the applicant. Ms Colebeck had reported to the applicant, performed a lower range of duties, and her position carried a lesser salary. This gives rise to a real question as to whether Ms Colebeck’s position constituted “an available position for which the [applicant was] qualified and suited nearest in status and pay to [her] pre-parental leave position”.

171    However, in my opinion, it is not necessary presently to resolve that question. That is because the omission of SYC to offer this position to the applicant is of no consequence in the present litigation. First, the position was not to become available until 18 August 2010, just on four weeks after the applicant’s employment had been terminated. By that stage, the obligation imposed by s 84 had ceased to have operative effect. Secondly, I am satisfied that, even if the position had been offered to the applicant, she would not have accepted it. As I have said, it was lower in status and in pay than the applicant’s pre-parental position. The applicant felt keenly about these matters as her email of 1 December 2009 confirms. Further, the applicant had then already obtained alternative employment with the Corporation of the City of Salisbury. It is quite improbable that the applicant would have forsaken that employment for the inferior position with SYC. I reject her evidence to the contrary.

172    For these reasons, I consider that the applicant has not established a contravention of s 84 and that, even if there was a contravention, it has had no adverse consequence for her.

Imposition of a penalty

173    The effect is that the only contravention of the National Employment Standards which I find established is the breach of s 65 of the FW Act.

174    The applicant sought the imposition of a penalty in respect of any breach of the Standards which was established. She referred to the Court’s power to award a pecuniary penalty in s 546(1) of the FW Act. The maximum penalty for a contravention of s 65 applicable at the time of SYC’s contravention was $33,000.

175    SYC submitted that the breaches alleged by the applicant were minimal with the effect that the Court should not award any penalty at all.

176    The circumstances of this case make it unnecessary to rehearse the principles relating to the imposition of a penalty.

177    I am satisfied that SYC’s breach of s 65 was minor – the applicant was told 22 days after she made her request for flexible working hours of her foreshadowed retrenchment and 27 days after the request, she received what was, in effect, a written response. Neither delay had any material effect on her as she was able quite quickly to obtain alternative employment. I am satisfied that SYC’s failure to respond within the 21 day period was inadvertent and that it was caused by the consideration being given within SYC as to whether the applicant’s position was redundant.

178    I accept that SYC does endeavour to comply with its employment obligations, including the obligations under the FW Act. Apart from the litigation commenced by Ms Stanley, which was contemporaneous with these proceedings, it has not been the subject of any proceedings concerning a breach of the FW Act in the past. Accordingly, considerations of specific deterrence do not rank highly.

179    In the circumstances, I consider that a pecuniary penalty of $2,500 is appropriate. That is the penalty which I will impose. In accordance with the 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.

180    None of the other forms of relief sought by the applicant is appropriate.

Conclusion

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

1.    I declare that SYC contravened s 44(1) of the FW Act in that it breached s 65(4) of the FW Act by failing, within 21 days, to give the applicant a written response to the request for a change in work arrangements contained in her email of 19 May 2010;

2.    Pursuant to s 546(1) of the FW Act, I order that SYC pay a pecuniary penalty of $2,500 in respect of its non-compliance with 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