Appeal - Equal opportunity - Failure of Tribunal to dismiss application on grounds that it was misconceived or lacking in substance - Discrimination on grounds of gender and pregnancy

Equal Opportunity Act 1984 (WA), s 5, s 10(1), s 10(1)(a)(i), s 10(1)(a)(ii), s 10(1)(a)(iii), s 11(2)(c), s 11(2)(d), s 58, s 109, s 125(1), s 134(1)

Industrial Relations Act 1979 (WA), s 83(1)

Minimum Conditions of Employment Act 1993, s 33(1)

Assal v Department of Health Housing and Community Services (1992) EOC 92-409

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Ebber v Human Rights and Equal Opportunity Commission [1995] FCA 1134; (1995) 129 ALR 455

Gibbs v Australian Wool Corporation (1990) EOC 92-327

Hope v The Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1

Human Rights & Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301

Khanna v Ministry of Defence [1981] ICR 653

Langley v Niland [1981] 2 NSWLR 104

Legal Services Commissioner v Ball [2001] NSWADT 86

Nagasinghe v Worthington [1994] FCA 1387; (1994) 53 FCR 175

Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd [2003] FMCA 160; (2003) EOC 93-304

State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

Tapuvae v Vetob Pty Ltd [2002] NSWIRComm 191; (2002) EOC 93-241

Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) EOC 93-227

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Burton v The President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76

DL (Representing the members of People Living with AIDS (WA) Inc) v Perth City Council (1992) EOC 92-422

Fort v Ralph M Lee Pty Ltd (1991) EOC 92-363

Hautlieu Pty Ltd t/as Russell Pathology v McIntosh [2000] WASCA 146

Hickie v Hunt and Hunt (1998) EOC 92-910

Margan v University of Technology Sydney [2003] NSWADT 133

Marshall v Marshall White & Co Pty Ltd (1990) EOC 92-304

Maylor (No 1) v Mid North Coast Area Health Service (2001) EOC 93-157

Milevski v Boral Buildings Services Pty Ltd (1994) EOC 92-645

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

Rochas v The University of Sydney [2004] NSWADT 14

Yarran & Anor v Westpac Banking Corporation (1992) EOC 92-440

1 JENKINS J: This is an appeal from a decision of the Equal Opportunity Tribunal on 15 September 2003 whereby it dismissed the application by the first and second appellants ("the appellants") for an order to dismiss the respondent's complaint of discrimination on the grounds that it is misconceived or lacking in substance.

2 The amended notice of appeal contains seven grounds of appeal. However, the appellant abandoned the first five grounds. The extant grounds of appeal are as follows:

"6. The Learned President erred in law in holding (at paragraph 34 of her reasons) that there are some objective facts from which an inference could be drawn that an act of discrimination had occurred and that the Respondent's claim is not a case that rests on an insufficient or unmeritorious factual basis, which finding was contrary to:

(a) the evidence before the Learned President contained in the affidavit sworn by Suzanne Ellen Biundo;

(b) the evidence taken into account by the Learned President at paragraphs 22 and 23 of her reasons; and

(c) the alleged facts pleaded in paragraphs 6 to 13 inclusive of the Respondent's Points of Claim.

7. The Learned President erred in law in failing to hold that the Action should be dismissed pursuant to section 125 of the Act on the grounds that it is misconceived and lacking in substance because:

(a) the Appellants' alleged failure to advise the Respondent that they regarded her departure from her employment as a resignation, as pleaded in paragraphs 14(a) and 15(b) of the Points of Claim, cannot constitute unlawful discrimination on the grounds of sex and pregnancy under the Act;

(b) the Appellants' refusal to allow the Respondent to return to work by 11 April 2002, as pleaded in paragraphs 14(a) and 15(b) of the Points of Claim, cannot constitute unlawful discrimination on the grounds of sex and pregnancy under the Act because:

(i) the Respondent was not pregnant as at 11 April 2002;

(ii) it is not alleged by the Respondent and there is no evidence that the Appellants informed the Respondent that she could not return to work because she was female;

(iii) it is not alleged by the Respondent and there is no evidence that the Appellants refused to allow the Respondent to return to work because she was female; and

(iv) the Respondent only alleged and it was her evidence that the Appellants refused to allow the Respondent to return to work because there were no positions of employment available; and

(c) the Appellants' alleged communication to the Respondent that, even if she had requested maternity leave, it would never have been granted to her, as pleaded in paragraphs 14(a) and 15(b) of the Points of Claim, cannot constitute unlawful discrimination on the grounds of sex and pregnancy under the Act because:

(i) the Respondent, as a matter of fact, took leave six weeks before the birth of her child;

(ii) it is not alleged by the Respondent and there was no evidence before the Learned President that the Appellants would have granted maternity leave to a male person or a female person who was not pregnant;

(iii) to the contrary, the Respondent alleges, and it was her evidence, that the Appellants informed the Respondent that they would not have granted maternity leave to the Respondent 'because of the size of the firm'; and

(iv) it is not alleged by the Respondent and there was no evidence before the Learned President that the Appellants would have granted maternity leave to a male person or a female person who was not pregnant."

3 The respondent was employed as a legal secretary by the second appellant between June 1997 and May 2001. The first appellant is a partnership carrying on business as a firm of solicitors. It denies that it employed the respondent. However, there is evidence that in April 2002 the respondent received a letter written on the first appellants' letterhead which referred to her employment "with this firm". The respondent worked on a full time basis, five days a week for most of her period of employment.

4 The respondent alleges that on or around 31 October 2000 she informed her office manager that she was pregnant and that her baby was due on 26 June 2001. She says that at the beginning of February 2001 she informed the office manager that she intended to commence "maternity leave" six weeks prior to the due date. She alleges that she asked the office manager if she needed to complete something in writing and the office manager replied that it was not necessary.

5 The respondent alleges that she finished working on 11 May 2001 at which time she had been working four days a week for the previous four months. She was paid her normal pay and accrued holiday pay at that time, which was about six weeks before the birth of her child.

6 The respondent alleges that on or about 3 April 2002 she approached the office manager to discuss her return to work and expressed her interest in working two days a week. However she indicated that she would consider working four days per week as she had been doing before she went on leave. The office manager allegedly told her that there was not enough room in the office and that they did not need anyone at that time. The office manager said that she would have to weigh up the pros and cons and speak to the partners and that she would ring the respondent.

7 The respondent did not hear from the office manager and so on 10 April 2002 she says that she rang the office manager. The office manager told her that she had already been sent a letter explaining the situation. The respondent advised the office manager that she had not received the letter as yet and the office manager advised her that her employment had been terminated when she left because she did not tell them that she intended to return to work. She was allegedly told that this was the case because they paid her all of her accrued entitlements and gave her a group certificate at the time. The office manager also explained that they had employed someone else to do the complainant's job.

8 On 11 April 2002 the respondent wrote to the office manager and advised of her intention to return to work on 10 May 2002, being 12 months after the commencement of her "maternity leave".

9 On 12 April 2002 the respondent received a letter from the first appellant in the following terms:

"When you left your employment with this firm the possibility that you might one day wish to return was never really discussed.

Certainly you did not then ask if you could return and, equally certainly we did not agree that you could return.

As far as we knew you had permanently ceased your employment and were then going to raise your child.

The simple fact is that there are no available positions and we are not in any position to offer you any type of employment whether permanent or casual.

Given the size of the firm it was never going to be possible, in any event, to have held available for you a position even had you indicated the possibility that you might wish to return one day."

10 The respondent made a complaint to the Equal Opportunity Commissioner alleging that the first appellant had breached the provisions of the Equal Opportunity Act 1984 ("the Act") by discriminating against her on the grounds of sex and pregnancy in the area of her employment. This complaint was subsequently referred to the Equal Opportunity Tribunal for inquiry.

11 On 21 May 2003 an order was made pursuant to the Act, s 109 that the second appellant be added as a party.

12 On 26 June 2003 the respondent filed points of claim from which I have extracted the above factual allegations. The points of claim make the following allegations of unlawful discrimination:

"14. The Respondents have unlawfully discriminated against the Complainant on the ground of pregnancy in the area of employment by treating her less favourably than in the same circumstances, or in circumstances that are not materially different, the Respondents treat or would treat person who is not pregnant, contrary to sections 10 and 11(2)(c) and (d) of the Equal Opportunity Act 1984, as amended, and the less favourable treatment was not reasonable in the circumstances.

Particulars

a) The complainant repeats paragraphs 10, 11 and 13 above, and states that the respondents unlawfully discriminated against the complainant by:

• Not advising the complainant that they regarded her departure from her employment as a resignation;

• Not allowing the complainant to return to work by 11th April 2002;

• Communicating to her that, even if she had requested maternity leave they would never have granted it to her because of the size of the firm.

15. The Respondents have unlawfully discriminated against the Complainant on the ground of sex in the area of employment by treating her less favourably than in the same circumstances, or in circumstances that are not materially different, the Respondent treats or would treat person who is not pregnant, contrary to sections 8 and 11(2)(c) and (d) of the Equal Opportunity Act 1984, as amended.

Particulars

b) The complainant repeats paragraphs 10, 11 and 13 above, and states that the respondents unlawfully discriminated against the complainant by:

• Not advising the complainant that they regarded her departure from her employment as a resignation;

• Not allowing the complainant to return to work by 11th April 2002;

• Communicating to her that, even if she had requested maternity leave they would never have granted it to her because of the size of the firm."

13 On 22 July 2003 the appellants filed separate points of defence. The first appellant denies that it has ever employed the respondent and denies that it has discriminated against the respondent at all. The second appellant alleges that the respondent terminated her employment with it on or about 11 May 2001, that she never advised it that she intended to take parental leave or that she intended seeking re-employment at any future time. The second appellant denies that it has discriminated against the respondent.

14 On 25 July 2003 the appellants applied for an order of dismissal of the complaint pursuant to the Act, s 125(1).

15 The parties filed affidavits in support of their cases. The respondent's affidavit did not take the factual allegations any further than the points of claim.

16 On 28 October 2003 the Tribunal delivered its reasons for its decision to dismiss the appellants' application brought pursuant to s 125(1). The Tribunal said at par 33 and 34:

"Put at its most basic level, the complainant says she went on parental leave but was unable to return to her employment at its conclusion. She deposes that she was told 'There was not really enough room in the office and [did] not really need anyone at [that] time.' Further, someone else had been employed to do her job.

This Tribunal finds there are some objective facts from which an inference could be drawn that an act of discrimination had occurred. It is not a case that rests on an insufficient or unmeritorious factual basis."

18 The Act, s 134(1) provides that a party aggrieved by a decision made under s 125 may appeal to the Supreme Court on a question of law. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355 Mason CJ said (omitting references):

"The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law. But it is said that '[t]here is no error of law simply in making a wrong finding of fact'...

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

19 Neither party made submissions about the nature of the Act, s 125. It is nonetheless important for me to set out what is the relevant test under that section, so that I can determine whether the Tribunal erred in law in applying it. The Act, s 125 states:

"Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint."

20 The appellants submit that the Tribunal should have found that the respondent's complaint is misconceived or lacking in substance.

21 The equivalent of s 125 in other Australian jurisdictions and the meaning of the particular words "misconceived or lacking in substance" have been discussed in numerous cases: Langley v Niland [1981] 2 NSWLR 104; State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; Nagasinghe v Worthington [1994] FCA 1387; (1994) 53 FCR 175; Ebber v Human Rights and Equal Opportunity Commission [1995] FCA 1134; (1995) 129 ALR 455.

22 At pars 11 - 17 of its decision, the Tribunal discussed some of these cases and their application to s 125. The Tribunal, at par 14 determined "that a complaint lacks substance will ordinarily require that at least a considerable portion of the complainant's evidence be heard". The Tribunal adopted Hunt J's interpretations of the phrase "lacking in substance" in Langley v Niland (supra) at 107 where he said that it refers to "the insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint". It also agreed with the meaning his Honour gave to "misconceived" saying, at par 16, "the word should not be given a meaning beyond a complaint founded on a wrong idea as to the facts so that a common genus or class is maintained with the other three adjectives utilised."

23 On the other hand, the Federal Court of Australia, in a number of cases, two of which I have referred to above, has endorsed the statement of Sir Ronald Wilson, sitting as the President of the Human Rights and Equal Opportunity Commission ("HREOC"), in Assal v Department of Health Housing and Community Services (1992) EOC 92-409, 78, 897, where he said:

"The meaning of the term 'lacking in substance' has been considered in a number of decisions of this Commission. My view ... is that a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim would ordinarily be found to be lacking in substance."

24 The majority of the Court of Appeal of the Victorian Supreme Court in State Electricity Commission of Victoria v Rabel (supra) did not agree with this definition. Tadgell JA, at 104 - 105 said:

"If no reasonable view of what a complainant desires to advance as a case could justify relief under the Act it would presumably be in everyone's best interest that the Board should so decide, and do so summarily. ... When the Equal Opportunity Board is considering an application under s 44C, therefore, no technical, artificial or mechanical rule should be allowed to obscure its view of the case which the complainant wishes to advance. Plainly enough, the section - a procedural one - is not intended to operate inimically to, but is designed to compliment, the general purposes for which the Act as a whole was enacted. The wide procedural discretion which s 44C reposes in the Board is evidently to be exercised accordingly."

25 Ormiston JA, at 110, did not accept that Parliament intended Sir Ronald's test if it meant anything other than that the "complainant has no reasonable prospect of success". His Honour said that a complaint could not be struck out or, in the language of the Western Australian legislation, dismissed "unless it is clear beyond doubt that the complaint is lacking in substance, that is, that the complainant has no arguable case which should be allowed to be resolved at a full hearing".

26 In coming to this view his Honour said he believed that Dixon J's comments in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91- 92, were relevant:

"Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."

27 His Honour also noted, at 109, that "misconceived" usually connotes a misunderstanding of legal principle, whereas "lacking in substance" connotes an untenable position of law or fact. The test which his Honour ultimately propounded appears to be capable of applying to cases where it is suggested that a complainant's case is not arguable in fact and/or law.

28 Phillips JA expressed no concluded view as to what the test for dismissal should be. However he noted Sir Ronald had applied his test at a late stage of the hearing of the complaint. His Honour distinguished that situation from the one before the Court where the application to strike out the complaint had been made before the hearing commenced. His Honour agreed, at p 121, with Ormiston JA that an application to strike out which is made before the hearing of a complaint commences is closer to an application in civil proceedings for summary judgment in favour of the defendant.

29 All three Judges of the Victorian Court of Appeal were of the view that the onus lay on the applicant respondent to demonstrate that the complainant's case should not be allowed to proceed.

30 The distinction between the tests adopted by the Federal Court and the Victorian Court of Appeal has been said to be "of such subtlety as to make it unlikely that a choice between one formulation or the other would affect the decision in any but an exceptional case": Legal Services Commissioner v Ball [2001] NSWADT 86 at [27]. I agree with this comment. However, I prefer Ormiston JA's formulation of the test which, broadened, is that the onus is on an applicant respondent under s 125 of the Act to show that the complaint is misconceived or lacking in substance, that is that the complainant has no arguable case, in fact or law, which should be allowed to be resolved at a full hearing.

31 In adopting this test I disagree with the Tribunal's adoption of the meaning of the words "misconceived" and "lacking in substance" given by Hunt J in Langley v Niland (supra). I see no reason why those words should not be read and interpreted in a general way so that they apply to complaints that are not arguable in fact or law.

"The question for the Tribunal is whether at this stage the complainant has provided sufficient evidence upon which the Tribunal could find her complaint substantiated. Such evidence would be sufficient if the Tribunal accepting the complainant's evidence and disregarding all evidence to the contrary could reasonably be satisfied that the complaint in each instance had more probably than not been established. DL (Representing the members of People Living with Aids (WA) Inc and Ors v Perth City Council & Ors (1992) EOC 92-422 at 79,012.

It is up to the complainant to establish a cause or connection between the alleged discriminatory act in the sex or pregnant state of the complainant."

33 In my opinion, the question posed by the Tribunal reverses the onus of proof in relation to an application under s 125. The onus was on the appellants, as the applicants, to satisfy the Tribunal that the respondent's complaint was misconceived or lacked substance. Further the stated standard of proof was too high. It was not necessary for the Tribunal to be satisfied that the complaint "had more probably than not" been established. Such a test may be applicable where a respondent has alleged, at the close of the complainant's case, that there is no case to answer. DL's case (supra) at 79,009 was a situation where the respondent made a no case submission at the conclusion of the complainant's case. The Tribunal was wrong to apply the standard and onus of proof found to be applicable in that case to this application under s 125(1) of the Act which was heard and determined prior to a hearing. However that error was in the appellants' favour and thus is not a ground for allowing the appeal.

34 In order to succeed on her complaint at a full hearing the respondent will have to prove that the appellants have discriminated against her on the grounds of pregnancy or sex. Her points of claim allege contraventions of ss 8 and 10 of the Act. Sections 8 and 10 state:

(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, on the ground of -

(a) the sex of the aggrieved person;

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

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

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

(2) 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 the discriminator requires the aggrieved person to comply with a requirement or condition -

(a) with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

...

(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 pregnancy of the aggrieved person if -

(ii) a characteristic that appertains generally to persons who are pregnant; or

(iii) a characteristic that is generally imputed to persons who are pregnant,

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 who was not pregnant; and

(b) the less favourable treatment is not reasonable in the circumstances.

(2) 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 pregnancy of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition -

(a) with which a substantially higher proportion of persons who are not pregnant comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply."

35 The points of claim particularise the discrimination on the grounds of sex as being based on pregnancy. The respondent will also have to prove that the discrimination has occurred on the grounds of pregnancy in an area covered by the Act. The respondent alleges that she was discriminated against in the area of employment in that the appellants, on the grounds of pregnancy or sex, dismissed her and subjected her to other detriment (s 11(2)(c) and (d)). Pregnancy or sex need not be the sole or dominant ground for the treatment (s 5).

36 The appellant alleges that the evidence before the Tribunal was not sufficient to enable the Tribunal to conclude that there are objective facts from which an inference of discrimination can be drawn.

37 At a full hearing of the complaint the onus will be on the respondent to satisfy the Tribunal that the failure of the appellants to allow her to return to work was on the grounds of her sex or pregnancy. In the absence of direct evidence the complainant may rely upon inferences drawn from primary facts.

38 In Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, Fullagar J considered when an inference of unlawful discrimination could be drawn. That case involved an allegation of racial discrimination because the complainant had not been appointed to a professional position he sought. His Honour considered the (English) Employment Appeal Tribunal decision in Khanna v Ministry of Defence [1981] ICR 653 and determined that the critical words in that case, in his opinion, meant no more than as follows:

"If the facts before explanation contain no direct proof of discrimination of the kind charged (be it political, sexual, racial, or impairment-grounded), the industrial tribunal may still be able to drawn an inference of discrimination of the kind charged; if the proper inference in the absence of explanation is discrimination of the kind charged, and there is either no explanation or an unacceptable explanation, then the inference of discrimination of the kind charged will mean the complaint succeeds."

39 In my opinion, it was open for the Tribunal to determine that there were some objective facts from which an inference could be drawn that an act of discrimination on the grounds of sex or pregnancy had occurred. Those alleged facts being that the complainant had been a satisfactory employee who took maternity and parental leave. No indication was given to her that she was dismissed. When she attempted to return to work at the end of her leave she was not permitted to do so and various reasons were given for that including that it was believed that she had resigned. These reasons must be considered in light of the complainant's assertion that she told the office manager that she was going on leave.

40 In light of these alleged facts I am not satisfied that the appellants have shown that the complainant does not have an arguable case and that it should not be allowed to go to a full hearing. Of course, it will be for the Tribunal to determine at hearing whether the only inference available on the facts as the Tribunal finds them is that unlawful discrimination on the grounds of sex or pregnancy occurred.

41 I do not understand why the appellants submit that the respondent could not prove that in not advising her that they regarded her departure from her employment as a resignation they had discriminated against her on the grounds of pregnancy or sex. As I have indicated above whether such an inference can be drawn will be a matter for the Tribunal after hearing all the evidence and considering all the surrounding facts and the conclusions that can logically be drawn from those facts. Cases such as Gibbs v Australian Wool Corporation (1990) EOC 92-327, Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) EOC 93-227 and Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd [2003] FMCA 160; (2003) EOC 93-304 are examples of cases where tribunals, at first instance, were prepared to draw inferences that complainants had been unlawfully discriminated against in the course of their employment on the grounds of pregnancy despite there being no direct evidence that the less favourable treatment that they received was because they had been required to take leave due to their pregnancy.

42 Further, I see no reason why an omission to tell a person something, to that person's detriment, can not be found to be less favourable treatment. Clearly the respondent would also be required to prove that other elements of unlawful discrimination.

43 The appellants submit that insofar as the respondent's complaint relies upon an allegation that she was not allowed to return to work by 11 April 2002, this cannot constitute discrimination based on pregnancy because the respondent was not then pregnant.

44 The respondent does not claim that she was pregnant on or about 11 April 2002. Her claim is that she was discriminated against on that date because of her past pregnancy because her pregnancy required her to take extended leave. This type of allegation appears to have been accepted in the two cases referred to above of Thomson v Orica Australia Pty Ltd (supra) and Rispoli v Merck Sharpe and Dohme (supra).

45 The respondent also relies upon Gibbs v Australian Wool Corporation (supra) and Tapuvae v Vetob Pty Ltd [2002] NSWIRComm 191; (2002) EOC 93-241 as authorities supporting the proposition that a woman can be discriminated against on the grounds of a past pregnancy.

46 In Gibbs' case Sir Ronald Wilson, sitting as the President of the HREOC, found that the transfer of the complainant to other duties on her return from maternity leave constituted unlawful discrimination on the grounds of pregnancy under the Sex Discrimination Act 1984 (Cth).

47 Tapuvae's case was not a complaint of unlawful discrimination. It was a case brought under the Industrial Relations Act 1996 (NSW). The Industrial Relations Commission found that the respondent's failure to effect a return to employment following maternity leave to be harsh, unreasonable and unjust and awarded the complainant $4,000 compensation. The case is not helpful to determine the issue I am presently discussing.

48 In Thompson's case the complainant took maternity leave from her employer. A few days before she returned from leave, when she was no longer pregnant, she was told that she would be performing duties which were, in effect, a demotion. The Federal Court found that the complainant had been discriminated against on the grounds of pregnancy and sex.

49 In Rispoli's case the complainant had a similar experience and the Federal Magistrate's Court found that the complainant had been discriminated against on the grounds of pregnancy and sex.

50 The appellants did not cite any authority for the proposition that discrimination at the time a woman returned from maternity leave could not be discrimination on the grounds of pregnancy. Instead their submission was based on an alleged logical inconsistency in such a conclusion because at such a time the woman would not be pregnant.

51 The Act, s 10(1) expressly provides for proof of discrimination on "the grounds of pregnancy" by proof of discrimination of the grounds of one of three matters. Only one of these grounds is "pregnancy" (s 10(1)(a)(i)). "Pregnancy" is defined, in the Oxford English Dictionary, as "the condition of being pregnant with child or young". I agree with the appellants that the word pregnancy when used in the Act, s 10(1)(a)(i), has its ordinary or popular meaning being the dictionary meaning. In coming to this view I have taken into account that:

i) the word is used in a different sense in s 10(1)(a)(i) than it is in s 10(1);

ii) it is not given an statutory definition so as to include a past pregnancy, cf "impairment" which is statutorily defined to include a previous impairment; and

iii) as explained by Lockhardt J in Human Rights & Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at [78], in relation to the Sex Discrimination Act 1984 (Cth), there is an apparently logical scheme to the legislation if "pregnancy" as used in s 10(1)(a)(i) is given its ordinary meaning.

52 Whether a word used in a statute has its ordinary meaning or a different meaning is a question of law. If it has the former then the common understanding of the word is a question of fact. The final issue, being whether the facts as found to have been proven can be held to sustain a finding, in this case, of unlawful discrimination, on the grounds of pregnancy is a matter of law: Hope v The Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1 per Mason J at 7-8.

53 As a matter of law and fact I agree with the appellants that the word "pregnancy" as used in s 10(1)(a)(i) of the Act should be given its ordinary meaning and that this meaning is that a complainant must be discriminated on the grounds of an existing pregnancy.

54 However, I do not agree with the appellants that on this ground the appeal should succeed. There are two reasons for this. The first is that taking a liberal approach to the complainant's case it may be open to the Tribunal upon the hearing of the complaint to find that the respondent was constructively dismissed when she was pregnant. If this should be the finding then the alleged unlawful discrimination would have taken place when the respondent was pregnant.

55 The appellants stressed that the unlawful discrimination occurred on or about 11 April 2002. It is acknowledged that the respondent was not then pregnant. However, the date is a mere particular and it would be open for the Tribunal to find that it occurred on another date, in which case the issue of whether the appellants' conduct constituted unlawful discrimination under s 10(1)(a)(i) of the Act would have to be determined having regard to that finding. Thus it is not appropriate for me to allow this appeal and dismiss the respondent's complaint without a hearing at which all the facts are determined.

56 The second reason is that, in the alternative to s 10(1)(a)(i), the respondent may establish that she was discriminated against on the grounds of pregnancy on the grounds of a characteristic that appertains generally to persons who are pregnant (s 10(1)(a)(ii)) or a characteristic that is generally imputed to persons who are pregnant (s 10(1)(a)(iii)).

57 The cases to which I have referred have primarily found that discrimination on the grounds of pregnancy occurred because maternity leave is a characteristic which appertains generally to persons who are pregnant. Thus whether or not the complainant was pregnant at the time of the discrimination has not been determinative of the complaint if the complainant was on maternity leave at that time. In HREOC v Mt Isa Mines Ltd & Ors (supra) the Full Court of the Federal Court construed the relevant sections of the Sex Discrimination Act 1984 (Cth). In obiter comments Lockhardt J said at [78]:

What is the relationship between ss. 5, 6 and 7 of the SD Act? Section 5 relates to sex discrimination, s. 6 to discrimination on the ground of marital status and s. 7 to discrimination on the ground of pregnancy. Section 7 assumes that the aggrieved person is pregnant or has a characteristic that appertains generally to or is generally imputed to persons who are pregnant. If the facts of a particular case concern an aggrieved person who is pregnant or who has a characteristic that appertains generally to or is generally imputed to pregnant women, in my opinion s. 7 operates exclusively of s. 5. But s. 7 would not cover the case of discrimination against a woman on the ground, for example, that it is a characteristic of women that they may become pregnant or bear children. If an employer refused to employ a woman on that ground, his conduct would not be discriminatory on the ground of pregnancy under s. 7 because the woman is not in fact pregnant. But it would be discriminatory on the ground of sex under s. 5 as it is a characteristic appertaining generally to women that they have the capacity to become pregnant. In that case the extended definition of sex provided by paragraph (b) (also (c)) of sub-s. (1) of s 5 applies."

58 Section 5 of the Commonwealth Act is similar to the Act, s 8 and s 7 of the Commonwealth Act is similar to the Act, s 10. Lockhardt J's construction is consistent with the view taken in the cases I have referred to. That is, that a woman does not have to be pregnant to be discriminated against on the basis of a characteristic that appertains generally to or is generally imputed to pregnant women. I agree with this construction and am of the opinion that it applies to the Act.

59 In Western Australia there is a further issue as to whether extended leave after the birth of a child is a characteristic that appertains to or is imputed to pregnant women because the Minimum Conditions of Employment Act 1993 (WA), ("The Employment Act") s 33(1) provides that an employee may take up to 52 weeks of parental leave after the birth of the employee's child or the child of the employee's spouse. Males and females have the right to take parental leave. Thus it could be argued that the taking of maternity leave is not, at least, in this State, a characteristic that appertains generally to or is generally imputed to persons who are pregnant. In my opinion the mere existence of s 33(1) does not mean that the Tribunal would not be able to conclude that the complainant was not discriminated on the grounds of a characteristic that appertains generally to or is generally imputed to persons who are pregnant. It would be a matter for the Tribunal to determine in light of all the evidence as well as s 33(1). It would still be open for the Tribunal to conclude that the taking of extended leave due to late stage pregnancy and the need to provide care to a baby, is a characteristic that appertains to or is generally imputed to persons who are pregnant.

60 Thus, whilst there may be merit in the appellants' submission that a non-pregnant woman cannot be discriminated against on the ground of pregnancy pursuant to s 10(1)(a)(i) because no such pregnancy exists this does not mean that the respondent could not establish that when non-pregnant she had been discriminated against on the grounds of a characteristic that appertains generally to or is generally imputed to persons who are pregnant pursuant to s 10(1)(a)(ii) or (iii). In this case the alleged characteristic would be the need to take extended leave from employment before and after delivery of the baby. As it is open to the respondent to prove her complaint in this way, I am not prepared to allow the appeal on this ground.

61 The appellants also submit that the respondent does not allege and could not prove that she received less favourable treatment than if she was male or if she was not pregnant. It became apparent during the course of the appellants' oral submissions that they regarded the appropriate comparator for the purposes of an allegation of discrimination on the grounds of pregnancy or sex (based on pregnancy) as a male who had wanted to or had voluntarily taken 12 months leave without any guaranteed right to return to work.

62 The relevant characteristics of a comparator were considered by Allsop J in Thomson v Orica Australia Pty Ltd (supra) at par 121. Allsop J considered that there were three possible comparators being:

(a) a person of similar employment status who did not take leave;

(b) a person of similar employment status who with the employer's consent took 12 months leave and wanted to return; and

(c) such a person as in (b) but who was also a person who had a right to return to work on the same basis as the complainant.

63 Allsop J concluded that the person with whom to compare a complainant in order to determine if a complainant had or would have been less favourably treated was the person described in (c). In Gibbs v Australian Wool Corporation (supra), Sir Ronald Wilson appears to have regarded the appropriate comparator as a person who had remained at work and not taken maternity or parental leave. Ultimately, the question as to who is the appropriate comparator will be a matter for the tribunal of fact. The selection of the appropriate comparator may depend upon all the circumstances of the case as they are then known.

64 However, I do not accept that the appropriate comparator is a male who wanted to or did take 12 months and who did not have, either as a consequence of statute or the agreement of the employer, the same right to return to work as the respondent. Such a person would not be "in circumstances that are the same or are not materially different" as those the respondent was in, as required by the Act, s 10.

65 The appellants complain that the respondent does not allege that she was treated less favourably than the appellants would have treated a male who was not pregnant, in circumstances that are the same or not materially different. Paragraphs 14 and 15 of the respondent's points of claim expressly make such an allegation. However, the particulars of those paragraphs do not contain particulars of this part of the respondent's case. Neither does the affidavit of the respondent, sworn 5 September 2003, provide any direct evidence relating to this issue. The question as to whether the appellants treated the respondent less favourably than they would have treated a relevant comparator may well be a question as to whether an inference to this effect can be drawn from all the available evidence. It may be a difficult matter of which to give particulars. Nonetheless I consider that the appellants are entitled to particulars of how the respondent was treated less favourably and of the material from which the respondent says such an inference could be drawn. This, however, is a mere pleading point and not one which would justify the dismissal of the respondent's case pursuant to s 125(1).

66 Another part of the appellants' submission is that the respondent could never prove that she was treated less favourably than a relevant comparator. For the reasons given earlier I do not accept that this submission has any merit in the context of an application made under s 125 prior to the commencement of a hearing.

67 The appellants complain in respect to a number of particulars of the points of claim that the respondent has not alleged that the allegations of discrimination were on the grounds that of pregnancy or sex. I disagree with this submission insofar as it is made in respect to each particular. On a fair reading of the points of claim it is obvious that the respondent is alleging that she was treated in the alleged manner on the grounds of pregnancy or sex.

68 I have dealt with other grounds of appeal concerning an alleged lack of evidence to prove certain matters under Ground 6.

The Minimum Conditions of Employment Act 1993 (WA)

69 The appellants submit that the respondent may well have a case for breach of the minimum conditions of employment contained in the Employment Act. The Employment Act, s 5(1) provides that certain minimum conditions of employment extend to and bind all employers. Section 33(1) provides that, subject to other sections, an employee is entitled to take up to 52 consecutive weeks of unpaid leave in respect of the birth of a child. The Employment Act, s 38, provides that on finishing parental leave an employee is entitled to the position he or she held immediately before starting parental leave.

70 An employee may enforce the provisions of the employment contract that are implied by the Employment Act by taking proceedings under the Industrial Relations Act 1979 (WA), s 83(1).

71 The appellants submit that the appropriate action for the respondent to take is to commence proceedings under the Industrial Relations Act 1979 (WA), s 83(1). They submit that the respondent has artificially contrived a case pursuant to the Act so as she can obtain damages, which the appellants submit are not available under the Industrial Relations Act 1979 (WA). However, it was not alleged and nor was there evidence before the Tribunal to establish that the complaint was an abuse of process because it was laid for an ulterior purpose: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509.

72 The respondent has made a complaint under the Act. Clearly, in order to succeed on this complaint, she must ultimately establish the essential ingredients of unlawful discrimination as they are stated to be in the Act. The appellants' application under s 125(1) of the Act had to be determined upon the basis of those ingredients as well as the requirements of s 125 of the Act. The fact that the complainant has another potential remedy does not indicate that this complaint is misconceived or lacking in substance. The requirements of the Act may well ultimately be relevant to the respondent's case under the Act. However, the fact that the respondent has an independent right to bring an action for breach of the Employment Act pursuant to the Industrial Relations Act 1979 (WA), s 83(1) is irrelevant to the consideration of the application under s 125(1) of the Act and this appeal.

73 Much of the appeal was spent debating the nature of the respondent's claim as particularised in the points of claim. Issues between the parties include whether the three particulars provided in pars 14 and 15 of the points of claim allege three separate incidents of unlawful discrimination or whether they allege one ongoing act of discrimination. Further the appellant has concentrated on the literal wording of the particulars whereas the Tribunal and the respondent have taken a more liberal approach to the complaint.

74 The appellants submit that the respondent, because she has been required to file points of claim, is bound by them. Whereas the respondent submits that because of the beneficial jurisdiction of the Tribunal and the Act, s 120, which provides that the Tribunal shall act according to equity, good conscious and the substantial merits of the case without regard to technicalities and legal forms, she is not bound by a literal wording of her points of claim.

75 I agree with the respondent that s 120 provides, in effect that the Tribunal is not a tribunal of pleadings and that the Tribunal is not required to find that the respondent is bound by her points of claim. However, it is clearly in the interests of the parties and the Tribunal that the respondent's case be as clearly stated as possible so that it can be determined according to its merits and the respondent is not taken by surprise.

76 The Tribunal summarised the respondent's case at par 24 saying:

"In essence the complainant says that she intended to commence parental leave and that this was conveyed to the appropriate person within the organisation she worked for. There was nothing in her evidence to suggest that this parental leave was an issue in that she was not entitled to it, could not take it or could not return to work at its conclusion. Her evidence is also that to put anything in writing was 'not necessary' thus implying the respondent or respondents elected to treat the matter with informality. However, she was not able to return to work at the expiration of that leave, with the respondent or respondents then denying such leave had been discussed."

77 This appears to me to be a fair summary of the respondent's case taken at its highest. As I have already indicated, currently, her case is that, by inference from all the surrounding facts, her treatment was less favourable than, in circumstances that are the same or not materially different, the appellants would have treated a male or a female who was not pregnant who had taken extended leave with the same rights of return to work as provided in the Employment Act or agreed to by the appellants, on the grounds of pregnancy or sex.

78 In my opinion the particulars to pars 14 and 15 of the points of claim do not substantially assist to clarify the respondent's case. For example, the first and third dot points of the particulars could be interpreted as particulars of how the respondent says she became aware that she had been unlawfully discriminated against, rather than the pertinent acts of discrimination. Additionally, I have stated that there are no particulars given of the less favourable treatment the respondent claims to have received. However, this lack of clarity in the points of claim did not warrant the Tribunal allowing the appellants' application under s 125 of the Act and neither does it warrant me allowing the appellants' appeal from the decision of the Tribunal. There does seem to me to be merit in the respondent reconsidering the particulars and seeking to clarify and add to them by amendment of the points of claim.

79 Pursuant to an application made under the Act, s 125, a complaint should not be dismissed prior to the commencement of the hearing of it, on the grounds that it is misconceived or lacking in substance unless the applicant respondent has satisfied the Tribunal that the complainant has no arguable case in fact or law which should be allowed to be resolved at a full hearing. At par 31 of its decision the Tribunal appears to have misstated this test. Nonetheless, this error of law has not led to an incorrect decision.

80 I am not satisfied that the Tribunal erred in law in deciding to dismiss the appellants' application under s 125.

• Grounds of Appeal
• Background
• The Law
• Ground 6
• Ground 7(a)
• Ground 7(b)
• Ground 7(c)
• The Minimum Conditions of Employment Act 1993 (WA)
• Nature of the Respondent's Claim
• Conclusion