Commonwealth of Australia v Evans

Human Rights and Equal Opportunity Commission Act 1986 (Cth) 8 Subsection 46PO(1) of the HREOC Act, subject to preconditions which need not here be considered, authorises a person who alleges that he or she has been unlawfully discriminated against to make an application to this Court or to the Federal Magistrates Court. 9 Subsection 46PO(4) relevantly provides: 'If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; … (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; ….'

Sex Discrimination Act 1984 (Cth) 10 It is convenient to set out a number of definitions contained in the Sex Discrimination Act 1984 (Cth) ('the SDA'). 11 Section 5 defines sex discrimination. It relevantly provides: '(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of: (a) the sex of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex. … (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. ….' 12 Section 7A defines discrimination on the ground of family responsibilities. It provides: '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.' 13 Section 8 relevantly provides that: 'A reference in subsection 5(1) … or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.' 14 All of Ms Evans' claims against the appellant were made in reliance on s 14 of the SDA. Relevantly s 14 provides: '(1) … (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, …: … (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. (3) … (3A) It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibilities by dismissing the employee. ….' 15 Section 108 of the SDA deems all Commonwealth employees to be employed by the Commonwealth. Within the meaning of the SDA, the term 'Commonwealth employee' includes a person employed or engaged under the Public Service Act(see s 4).

Public Service Act 1999 (Cth) 16 Section 20 of the Public Service Act is concerned with the issue of who exercises the rights, duties and powers of an employer in respect of an APS employee. It relevantly provides: '(1) An Agency Head, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of APS employees in the Agency.'

An 'Agency' within the meaning of the Public Service Actincludes a 'Statutory Agency' (see s 7).

National Crime Authority Act 1984 (Cth) 17 At the relevant time s 47 of the NCA Act provided: '(1) Subject to sections 48 and 49, the staff of the Authority shall be persons engaged under the Public Service Act 1999. (2) For the purposes of the Public Service Act 1999: (a) the Chairperson and the APS employees assisting the Chairperson together constitute a Statutory Agency; and (b) the Chairperson is the Head of that Statutory Agency.'

undisputed facts 18 As is relatively common in cases of this kind, many of the subordinate facts upon which Ms Evans relied were not in dispute. 19 Consideration of Ms Evans 'Points of Claim' and the appellant's 'Points of Defence' reveal that the appellant admitted the following:

(a) Ms Evans commenced employment with the NCA as an APS5 Intelligence Analyst on 1 July 1999 for a period up until 30 June 2000; (b) Ms Evans' contract of employment with the NCA was subsequently renewed for a further three months from 1 July to 30 September 2000; (c) On or about 25 July 2000 a decision was taken within the NCA not to extend Ms Evans' contract of employment beyond 30 September 2000.

Consideration of the evidence led by the respective parties reveals that the following facts were not in truth in dispute between the parties:

(d) at all relevant times Ms Evans had a dependent son for whom she had primary responsibility to provide care and support; (e) during the period 1 January to 30 June 2000 Ms Evans took a number of days leave from her employment by reason of her own illness or to provide care to her son; (f) the leave taken by Ms Evans did not exceed her contractual entitlement to take personal leave; (g) Michael Purchas ('Mr Purchas'), a Superintendent of the Australian Federal Police, was at all relevant times working on secondment with the NCA as Acting Manager Investigations; (h) as Acting Manager Investigations it was Mr Purchas' responsibility to gather information about and determine the strategic direction of the NCA investigations and, in consultation with team leaders, to plan for proposed operational workloads, staffing changes and replacements; (i) Mr Purchas did not directly supervise Ms Evans although he received reports in relation to her and other staff; (j) Ms Evans worked as a member of a team supervised by Peter Baker ('Mr Baker'); (k) in early July 2000 Mr Purchas conducted Ms Evans' 'Performance Recognition Program' review ('the Performance review'); (l) prior to and during the Performance review Mr Purchas raised with Ms Evans his concern that the amount of leave that she was taking was affecting her performance adversely and said words to her along the line of 'I want 100 per cent commitment from you'; (m) the highest grade that Ms Evans could have received on the Performance review was 4; (n) for reasons which included the amount of leave that she had taken, Mr Purchas gave Ms Evans a grade of 2 on the Performance review; (o) shortly after the Performance review Ms Evans was absent from her employment for a period of 11 days, a medical practitioner certifying that she was unfit for work because of 'acute anxiety disorder'; (p) upon her return to work on 25 July 2000, Ms Evans was advised by Mr Purchas that the NCA did not intend to extend her employment contract beyond 30 September 2000; (q) on or about 25 July 2000 Ms Evans received written notification from Wayne Thompson ('Mr Thompson'), Regional Executive Officer, that it was not proposed to extend her engagement beyond 30 September 2000; (r) on 25 July 2000 Mr Purchas responded to an e-mail from Ms Evans in terms which included the following:

'… earlier today I informed you that the Authority was not intending to extent [sic] your employment contract beyond 30 Sept 2000. … I again pointed out to you that the position you currently occupy needs to be filled on a full time basis and that over the last few months this has not been the case. I made you aware that Operation Batton would be commencing within the next couple of weeks and that it would be essential to have stability with the analytical support. You appeared to accept my concerns and agreed to inform me either later today or at least by first thing tomorrow what time frame you had in mind. I clearly formed the view that you had an intention of leaving the Authority in the very near future.' (s) on 26 July 2000 Ms Evans replied to Mr Purchas by e-mail saying, amongst other things: 'I respect the fact that Operation Batten is to commence shortly. I will endeavour to meet the requirements of this Operation, in good faith, until such time as my employment ceases with the Authority. At no time have I indicated any intention of not fulfilling the obligations of my contract.' (t) on 27 July 2000 John Veale ('Mr Veale'), the Human Resources Manager for the NCA, after being informed by Mr Thompson that there was a workplace issue between Ms Evans and Mr Purchas, spoke to Ms Evans who informed him that Mr Purchas had been unreasonable about the amount of time she had taken off; (u) on 10 August 2000, as part of a general movement of people between teams, Ms Evans was transferred to an investigation team headed by Michael Birley ('Mr Birley'); (v) on 14 August 2000 Ms Evans attended a meeting at which Mr Birley and David Shannon ('Mr Shannon'), Manager, Operational Support for the team headed by Mr Birley, were present; (w) Mr Birley's diary entry with respect to the meeting of 14 August 2000 includes the following:

'- Meeting with Rachel Evans/David Shannon, 2nd floor re lack of ops [?] support/commitment to team as an analyst (contract expiring shortly as per convn with Mike Purchas). - Rachel asked her intentions for future support of the team due to heavy workload and need for ops [?] support and [?] analyst-commitment. - Rachel stated that this matter would be resolved in the near future, and didn't want to say anything further.' (x) on 17 August 2000 Ms Evans attended a meeting with Gary Allen ('Mr Allen'), Regional Director of the NCA, who is now deceased, at which Mr Thompson was present; (y) later the same day Ms Evans sent an e-mail to Mr Allen which stated, amongst other things:

'Thank you for responding to my grievance complaint. Unfortunately I feel it necessary to resign my position effective tomorrow Friday 18 August 2000. I apologise for the short notice however I do not believe that this will effect Operations on my team as I have filled my current position for less than one week.' (z) Ms Evans did not thereafter work with the NCA.

reasons and orders of the magistrate 20 The reasons for judgment of the Federal Magistrate are divided into five sections headed respectively, Introduction, The Evidence, Findings, Findings of Law and Damages. 21 The section headed Introduction outlines in very general terms the case of Ms Evans. 22 The section headed The Evidence reviews the evidence of each of the witnesses seriatim. In respect of some but not all of the witnesses, consideration of his or her evidence concludes with general observations relevant to credibility. Some findings of fact are found in the section headed The Evidence. I mean no disrespect to his Honour when I observe that the practice of reviewing the evidence of each witness seriatim rather than considering the evidence either on a chronological or on an issue by issue basis can make it difficult to identify the precise findings of fact made by the decision maker and the basis upon which those findings were made. Those difficulties have arisen on this appeal. 23 In the section headed Findings, the Federal Magistrate records his principal findings of fact. Some of the findings relate to issues which were not really in dispute between the parties. Other findings relate to issues which were at the heart of the parties dispute. His Honour found that Mr Purchas 'was unhappy with the concept of carer's leave'. He also found that Ms Evans' grading on the Performance review would have been higher had Mr Purchas not been influenced by his views on her taking carer's leave. However, his Honour was not satisfied that Mr Purchas told Ms Evans that she could not take further carer's leave or that a complete prohibition on her taking such leave could reasonably have been inferred from anything that Mr Purchas said. 24 Inferences drawn by his Honour which were critical to his decision are also recorded in this section of the reasons for judgment. While the appellant did not to any significant extent challenge his Honour's findings of subordinate fact, it did challenge the inferences that his Honour drew from those facts. In particular the appellant challenged the inferences drawn by his Honour in the following passage from the Findings section of his reasons for judgment: 'I am of the view that the evidence indicates that Ms Evans could have expected that her contract would be renewed for a period of one year. It seems that the reference upon which she was working was an important one. Indeed it was because of its importance that Mr Purchas had his concerns about her attendance. I find the circumstances surrounding her contractual arrangements to be most unsatisfactory. Nobody was prepared to accept responsibility for what occurred. An effort was made to blame the deceased Mr Allen. But I believe that Mr Allen only acted on the advice of someone else. That someone else could have been Mr Purchas. I think in all probability the first decision just to renew her contract for three months was made in the knowledge of the budgetary cuts and in the knowledge that Ms Evans was shortly to be given a performance review by Mr Purchas. I am of the view that the probabilities are that had she received a better report from Mr Purchas and had he not been so concerned about her attendance record that [sic] the contract would not have been determined on 30 September and would probably have been renewed until 30 June the following year. I am unable to accept the suggestions made in the evidence that the non-renewal of Ms Evans' contract, coming so soon as it did after the performance review happened in a vacuum. The total lack of documentation suggests to me that the decision not to renew Ms Evans' contract was taken, at least in part, because of her attendance record and the concerns relating to her attendance record arose, at least in part, from her taking of carer's leave.' 25 In the section headed Findings of Law his Honour set out his reasons for concluding first, that the appellant had discriminated against Ms Evans in circumstances rendered unlawful by subs 14(2) of the SDA, secondly that the NCA had discriminated against Ms Evans on the ground of her family responsibilities (subs 14(3A) of the SDA) and thirdly, that the NCA breached 'its' contract of employment with Ms Evans. 26 The opening paragraph of this section of his Honour's reasons for judgment reflects an understanding that the Act does not render unlawful all discrimination on the ground of sex and that the critical provisions to which he was required to give attention were subs 14(2) and subs 14(3A). Although his Honour refers to the relevant definition of discrimination being contained in s 7 it seems clear that his Honour intended to refer to s 5 (see [11] above). Section 7 of the SDA is concerned with discrimination on the ground of pregnancy or potential pregnancy. 27 At [101] of his reasons for judgment, the Federal Magistrate indicated that it was appropriate to look first to see if Ms Evans had established that she had been directly discriminated against for the purposes of subs 14(2). His Honour's reasons for concluding that the appellant had directly discriminated against Ms Evans in circumstances rendered unlawful by subs 14(2) of the SDA are required to be found in the following passage from [103]-[105] of his Honour's reasons for judgment: 'The conduct of the respondent which it is alleged constituted less favourable treatment was the criticism of Ms Evans for taking carer's leave, the marking down of her assessment because of the taking of carer's leave, the non-renewal of her contract after 30 September 2000 because of concerns about her taking excessive personal leave and carer's leave and the harassment and pressure placed upon her between the time of that decision and the time she resigned from the NCA including the transfer from one team which was dealing with a current important and interesting reference to another team where her involvement would have been much less. I accept the applicant's submission that in considering discrimination in these circumstances the relevant comparator would be a male intelligence analyst, employed by the NCA in 2000 who took leave within his entitlements. … In the evidence which was called before me the shedding of a number of members of staff was discussed. It was never asserted by the respondents that any member of staff had been dismissed or had his contract not renewed by reason of taking leave to which he was entitled. I appreciate that it is for the applicant to prove her case and that it could be argued that she should have produced clear evidence that all of the male members of staff who did leave left for other reasons. But to a certain extent this is asking the applicant to prove a negative and more importantly the NCA is an organisation whose activities are clouded in secrecy. I have little doubt that attempts to obtain the personnel records of persons who work within the organisation would have been strongly resisted, to my mind rightly. If the respondent wished to assert that it had no patience whatsoever for people who took their contractual entitlements and did not treat them less favourably than the applicant it could have done so with no difficulty whatsoever. I am prepared to draw the necessary inference noting, as I do, that the applicant tendered as Exhibit 5 an Australian Bureau of Statistics document entitled "Labour Force Status and Other Characteristics of Families" which showed that women take twice as much time as men on what was described as "committed activities" otherwise described in the document as "child care." I am satisfied that discrimination has been made out.' 28 His Honour's reasons for judgment do not contain an express finding that the conduct which was alleged to constitute the less favourable treatment of Ms Evans, or some part of that conduct, was established by the evidence. Nor do his Honour's reasons for judgment contain express consideration of the issue of whether the discrimination that he was satisfied had been made was rendered unlawful by one or more of pars (a)-(d) of subs 14(2). 29 His Honour's reasons for concluding that the appellant had constructively dismissed Ms Evans are expressed in [106] of his reasons for judgment as follows: 'The concept of constructive dismissal, seminally defined by Lord Denning in Western Excavating v Sharp (1978) 1 QB 761 at [769A], has been followed in Australia in such cases as Mohazab v Dick Smith Electronics Pty Limited (No 2) (1999) 88 IR 259, Allison v Bega Valley Council (1995) 63 IR 68 and has been applied to cases involving alleged sexual discrimination by the Federal Magistrates Court in Mayer v Ansto [2003] FMCA 209 at [74] and Escobar v Rainbow Printing Pty Limited (No 2) [2002] FMCA 122. I am satisfied that the applicant was subjected to a series of actions by the NCA which caused her to have a reasonable belief that the taking of further carer's leave might result in the termination of her contract and indeed may have resulted in the decision not to renew her contract after 30 September 2000. I am satisfied that the grievance procedure failed Ms Evans and that the remarks made both by Mr Purchas and Mr Allen constituted a significant breach of the contract by the employer which went to the root of the contract. Neither Mr Purchas nor Mr Allen had any right whatsoever under the common law of employment or the actual contract entered into between their organisation and Ms Evans to even criticise Ms Evans for taking carer's leave within her entitlements. I accept that if Ms Evans had indicated to Mr Purchas that she had upcoming liabilities to take carer's leave, for example, because her child needed to go into hospital for some elective surgery, he would have been within his rights to suggest to her that she moved from one team to another. That is not what occurred. Ms Evans had no reason to believe that she would have to take further carer's leave, she wished to protect her own position in case she did. Notwithstanding that she was on sick leave herself because of stress arising out of Mr Purchas' criticism of her, she was moved without notice. I am satisfied that Mr Evans was constructively dismissed.' 30 His Honour's reasons for concluding that the appellant discriminated against Ms Evans on the ground of her family responsibilities by dismissing her are expressed in [107]-[108] of his reasons for judgment as follows: 'I am satisfied that the pressuring of Ms Evans, the failure to renew her contract, the movement of her from one team to another and the meeting which took place with the new team leader at which reference was made to carer's leave as well as the other matters which I have already found constituted less favourable treatment in the context of s. 14 also constituted less favourable treatment in the context of s 7A. There is ample evidence that carer's leave was considered by Mr Purchas to be some sort of special case that did not apply to other personal leave. That evidence comes not only from the applicant but also from Ms Monroe and Ms Melrose and resulted in badgering and harassment and intimidatory conduct in respect of all three of them. There is no evidence whatsoever that this type of activity was extended against persons who took personal leave for other reasons. I am therefore satisfied that the NCA was in breach of s.14(3)A in that it discriminated against Ms Evans on the grounds of her family responsibilities in dismissing her. I do not accept that Ms Evans was not treated less favourably because Mr Purchas treated Ms Monroe in a similar fashion. Firstly, I believe that the less favourable treatment was more severe in the case of Ms Evans who is not as strong a personality as Ms Monroe. Secondly, although Mr Purchas threatened not to renew Ms Monroe's contract, it was in fact renewed. I do not think Ms Monroe is a comparator within the context of s.7A as she did have family responsibilities. The proper comparator is the employee without family responsibilities who took personal leave within his or her (because there is no differentiation with regard to sex in this sub section) entitlements.'

31 The section of his Honour's reasons for judgment headed Findings of Law does not include consideration of whether Ms Evans had been subjected to indirect discrimination. This may be assumed to be because his Honour was not satisfied that the condition or requirement upon which Ms Evans relied in this regard (see [52] below) had been established by the evidence. As is mentioned above, his Honour was not satisfied that Mr Purchas had told Ms Evans that she could not take further carer's leave or that a prohibition on her taking such leave could reasonably have been inferred from anything that Mr Purchas said.

32 Under the heading Damages, the Federal Magistrate records his satisfaction that Mr Purchas has no personal animosity against Ms Evans and that he acted in what he believed to be the best interests of the NCA. This suggests that the conduct which his Honour had found to constitute unlawful discrimination was conduct of Mr Purchas or conduct that was causally connected with conduct of Mr Purchas. At [111]-[112] his Honour gives the following reasons for awarding Ms Evans the sum of $25 000 for non-economic loss:

'In anti-discrimination cases where no medical evidence is called or any serious medical sequelae alleged damages are given for hurt and humiliation Federal Magistrate Driver said in Mayer supra "It is important to consider that damages for non-economic loss should not be minimal as this would to tend to trivialise or diminish respect for the public policy behind anti-discrimination legislation; see Alexander v Home Office [1998] 1 WLR 968 at 975; Bonella v Wollongong City Council [2001] NSWADT 194 at 121." In this case medical evidence has been produced. The consensus of opinion is that the applicant suffered clinical depression as a result of the actions of the NCA which lasted at least up until the end of 2000. I have found that any residual depression would not prevent her from working full time if she wished to do so and she did not suffer from the dysthymic disorder which Dr Dinnan supported. In my view, the appropriate figure for general damages in this case should take into account the effect of the actions of the NCA upon the applicant. I note that it is over ten years since Wilcox J awarded damages of $20,000.00 in Re Susan Hall, Dianne Susan Oliver and Karyn Reid And: A & A Sheiban Pty Ltd; Dr Atallah Sheiban and Human Rights and Equal Opportunity Commission No NG 1185 of 1988 Fed No 65 Sex Discrimination 20 FCR 217 and that in Rugema v Gadston Pty Limited (1997), (unreported Commissioner Webster) the sum of $30,000.00 in non economic losses was awarded for major depressive disorder. It is my view that the sum of $25,000.00 is the appropriate award today for this applicant.'

notice of appeal 33 The further amended notice of appeal ('the Notice of Appeal') is less helpful in identifying the real issues to be determined on this appeal than it might be. 34 The Court's jurisdiction to hear and determine this appeal derives from par 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). The subject of the appeal is the judgment of the Federal Magistrates Court, not the reasons for decision of the Federal Magistrate. The judgment of the Federal Magistrates Court is relevantly identified in [2]-[3] above. 35 The remarks that I made concerning the way in which a notice of appeal should be drawn in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 55 IPR 354, which were endorsed by Spender and Miles JJ in Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 at [10], are applicable here. In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd at [4]-[5] I said: 'A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the Court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal. A useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions to the Full Court is almost certainly a notice of appeal which fails to comply with the requirements of O 52 r 13(2)(b). Neither the notice of appeal nor the document containing the revised grounds of appeal was, or could have been, so utilised in this case.' 36 The first two grounds of appeal set out in the Notice of Appeal are: '(a) His Honour erred by concluding that the appellant discriminated against the respondent; (b) His Honour erred by concluding that the appellant constructively dismissed the respondent.'

No particulars are given of the first two grounds of appeal. They appear to constitute mere complaints as to the outcome of the hearing before his Honour. Consideration of the appellant's submissions, both written and oral, confirms that the first two grounds of appeal are not intended to add anything to the other grounds of appeal.

37 The third ground of appeal set out in the Notice of Appeal is constituted by an assertion that his Honour erred by finding 'in the absence of any evidence' that the decision not to renew Ms Evans' contract was taken, at least in part, because of her attendance record. As the 'Particulars' of this ground include references to evidence that was before his Honour, the ground may presumably be understood to assert that there was no evidence before his Honour that could support a finding that the decision not to renew Ms Evans' contract was taken, at least in part, because of her attendance record. This ground of appeal constitutes a challenge to the factual foundation of a step in the reasoning process whereby his Honour concluded that the appellant discriminated against Ms Evans contrary to subs 14(2) of the SDA 'by its actions in connection with [Ms Evans'] taking of carer's leave prior to 30 June 2000' 38 The fourth ground of appeal set out in the Notice of Appeal is constituted by an assertion that his Honour erred by concluding: 'in the absence of any evidence, that the respondent had been treated differently to a male intelligence analyst, employed by the NCA in 2000 who took leave within his entitlement or to an employee without family responsibilities who took family leave within his or her entitlement.' Like the preceding ground, this ground is presumably to be understood as asserting that there was no evidence before his Honour that could support the finding to which the ground refers. This ground constitutes a challenge to the factual foundation of a step in the reasoning process which supported each of the two critical conclusions reached by his Honour, namely that the appellant unlawfully discriminated against Ms Evans contrary to subs 14(2) of the SDA and that the appellant breached subs 14(3A) of the SDA 'by discriminating against [Ms Evans] on the grounds of [Ms Evans'] family responsibilities by dismissing [Ms Evans]'. 39 The fifth ground of appeal set out in the Notice of Appeal is constituted by an assertion that his Honour erred by reversing the onus of proof by requiring the appellant to establish that 'it had no patience whatsoever for people who took their contractual entitlements and did not treat them less favourably than [Ms Evans]'. The quotation from his Honour's reasons for judgment included in this ground of appeal comes from the passage set out in [27] above. It seems clear that his Honour's statement related to his consideration of the allegation that Ms Evans had been discriminated against on the ground of her sex. This ground is thus to be understood to challenge a step in the reasoning process whereby his Honour concluded that the appellant discriminated against Ms Evans contrary to subs 14(2) of the SDA. 40 The sixth ground of appeal is dependent on the earlier grounds. It asserts that his Honour erred in ordering the appellant to pay damages to Ms Evans. 41 The seventh ground of appeal asserts that his Honour erred by awarding damages that were, in all the circumstances, excessive.

notice of contention 42 Ms Evans contended that the decision of the Federal Magistrate should be affirmed for reasons other than those on which his Honour relied. In particular, Ms Evans contended that his Honour should have found that she was treated less favourably than male members of the NCA staff by reference to the leave entitlements available to male employees under the National Crime Authority Certified Agreement 2000-2002 ('the Certified Agreement').

Employer 43 Although the Notice of Appeal does not raise any issue concerning the identity of Ms Evans' employer, consideration of the reasons for decision of the Federal Magistrate requires consideration of this issue. As is mentioned above, it appears that Ms Evans was at all relevant times employed or engaged under the Public Service Act. It is clear that she worked within the NCA, a Statutory Agency, of which the Chairperson was the Head (see s 47 of the NCA Act). 44 For the purposes of the SDA a person employed or engaged under the Public Service Act is deemed to be employed by the Commonwealth (see s 108 of the SDA). However, the Commonwealth itself is not an entity capable of discriminating against a person in a way rendered unlawful by the SDA. 45 The SDA recognises that difficulties will attend proof that an act was done on a particular ground where the act is not the act of an individual. The SDA by s 107 provides that where it is necessary to establish that a body corporate has done an act on a particular ground, it is sufficient to establish that a person who acted on behalf of the body corporate acted on that ground. The SDA contains no comparable provision reaching to the Commonwealth which is not a body corporate. It is therefore necessary, where an APS employee alleges that he or she has been discriminated against by his or her employer in a manner rendered unlawful by the SDA, to look to s 20 of the Public Service Act. Section 20 vests in an Agency Head, on behalf of the Commonwealth, all the rights, duties and powers of an employer in respect of APS employees in that Agency. The relevant Agency Head so far as Ms Evans' employment was concerned was the Chairperson of the NCA. The relationship between s 20 of the Public Service Act and s 106 and s 108 of the SDA was apparently not argued before the Federal Magistrate, nor was it argued before me. 46 So far as the decision taken within the NCA not to extend Ms Evans' contract of employment beyond 30 September 2000 is concerned, it was presumably accepted by the parties that the decision was made either by the Chairperson or by a person to whom the Chairperson had lawfully delegated his authority in that respect. It may be presumed that the parties similarly accepted that the Performance review was conducted by Mr Purchas pursuant to a lawful delegation from the Chairperson and that Mr Purchas transferred Ms Evans to the investigation team headed by Mr Birley pursuant to a lawful delegation from the Chairperson. However, so far as the other conduct of which Ms Evans complained is concerned (eg the alleged criticism for taking carer's leave and the alleged harassment and pressure placed on Ms Evans after 25 July 2000) I do not think that the appellant is to be regarded as having defended Ms Evans' allegations on the basis that this conduct was engaged in, if at all, by the Chairperson or his delegate. 47 In supplementary written submissions provided to the Court at my request, the appellant accepted that s 106 of the SDA, which is concerned to impose vicarious liability on a person in certain circumstances, is apt to impose vicarious liability generally on an Agency Head for conduct engaged in by another member of the APS. The appellant did not suggest that it was material, so far as the operation of s 106 is concerned, that the Agency Head was not a party to the proceeding before the Federal Magistrate. I therefore proceed on the same basis.

Discrimination on the Ground of Sex (subs 14(2)) 48 For an applicant to establish that a respondent has engaged in conduct rendered unlawful by subs 14(2) of the SDA, the applicant must, in a broad sense, establish two things. First, that the respondent has engaged in conduct that constitutes sex discrimination within the meaning of the SDA. Secondly, that that conduct was conduct of a kind rendered unlawful by the SDA. 49 To constitute sex discrimination within the meaning of the SDA conduct must come within the terms of subs 5 of the SDA. Conduct that comes within the terms of subs 5(1) is often described as direct discrimination and conduct that comes within the terms of subs 5(2) is often described as indirect discrimination. 50 It seems clear that Ms Evans sought to establish before the Federal Magistrate that the respondent had directly discriminated against her by treating her less favourably than, in circumstances that are the same or are not materially different, it treats or would treat a man. It was her case that the respondent had so treated her by reason of a characteristic that appertains generally to, or is generally imputed to women. That characteristic, Ms Evans' contended, was the characteristic of having responsibility to care for their children. 51 In the circumstances, any finding that the respondent had directly discriminated against Ms Evans on the ground of her sex called for subsidiary findings that: (a) the respondent had treated Ms Evans less favourably than, in the circumstances that are the same or are not materially different, it treats or would treat a man; (b) the respondent had so treated Ms Evans because she has responsibility to care for her child; and (c) the characteristic of having responsibility to care for their own children is a characteristic that appertains generally to, or is generally imputed to, women. 52 It also seems clear that Ms Evans sought to establish before the Federal Magistrate that the respondent had indirectly discriminated against her on the ground of her sex by imposing, or proposing to impose, a condition or requirement that had, or is likely to have, the effect of disadvantaging women. On her case, that condition or requirement was that she not take leave, or alternatively not take carer's leave, after 25 July 2000. 53 In the circumstances, any finding that the respondent had indirectly discriminated against Ms Evans called for subsidiary findings that: (a) the respondent imposed, or proposed to impose, a condition or requirement; (b) that condition or requirement was that Ms Evans not take leave, or alternatively, not take carer's leave, after 25 July 2000; and (c) that condition or requirement has, or is likely to have, the effect of disadvantaging women. 54 Ms Evans sought to establish that the conduct of the respondent of which she complained was of a kind rendered unlawful by the SDA by proving that it involved discrimination by the respondent, as her employer: (a) in the terms or conditions of employment that the respondent afforded her; (b) by subjecting her to a detriment; and (c) by constructively dismissing her. 55 Any finding that the respondent had unlawfully discriminated against Ms Evans on the ground of her sex, whether directly or indirectly, involved a subsidiary finding that the relevant conduct of the respondent involved discrimination by her employer in one or more of the ways identified in subparagraph (a), (b) and (c) above. 56 As is mentioned above, the reasons for decision of the Federal Magistrate do not record findings in respect of all of the matters that the applicant was required to prove to establish her case that the respondent has engaged in conduct rendered unlawful by subs 14(2) of the SDA. Were it not for the fact that the Federal Magistrate made a declaration, the absence of express findings could probably be disregarded on this appeal except to the extent that they are rendered relevant by the notice of appeal. However, the Federal Magistrate made the declaration recorded in [2] above. 57 In Rural Press v Australian Competition and Consumer Commission ('Rural Press v ACCC') [2003] HCA 75; 203 ALR 217 at [89]-[90] Gummow, Hayne and Heydon JJ expressed the view that, even if invited to do so, a trial judge should not make a declaration which is not tied to proven facts. In respect of declarations concerning contraventions of s 45 and s 46 of the Trade Practices Act 1975 (Cth), their Honours observed: 'The declarations spoke merely of "an arrangement" having a purpose and effect, without giving any content to that expression and without indicating the gist of the findings of the primary judge identifying the arrangement. These declarations provide a bad precedent and were of a kind which the trial judge should not have agreed to make even if urged to do so by the parties. Close attention to the form of proposed declarations, particularly those "by consent", should be paid by primary judges.' 58 Kirby J in Rural Press v ACCC at [141] suggested that procedural traditionalism should be avoided in the field of remedial statutory law. His Honour expressed similar views in Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13; 205 CLR 1 at [121]. However, I doubt that anything said by his Honour in those two cases suggests disapproval of the views expressed by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 579 where their Honours said: 'The orders of the Full Court included a declaration "that both appellants are refugees and are entitled to the appropriate entry visas". A declaration in these terms lacked utility because it did not specify with reference to the legislation the "appropriate entry visas" nor did it indicate any ready means of identification thereof. A declaration so loosely framed is objectionable in form.' (citation omitted) 59 In Warramunda Village Inc v Pryde [2001] FCA 61 (FC); 105 FCR 437 at [8] the Full Court of the Federal Court observed: 'The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment.' 60 After I raised with the parties concern about the form of the declaration made by his Honour, Ms Evans submitted that: '[Paragraph] 46PO(4)(a) provides for a simplified form of declaratory order where the Court is satisfied that there has been unlawful discrimination.'

I understand this submission to suggest that par 46PO(4)(a) of the HREOC Act is intended to authorise the making of a declaration in terms such as 'the respondent has committed unlawful discrimination'. In my view, subs 46PO(4) of the HREOC Act, which is set out in [9] above, discloses no intention to alter the general law touching on the appropriate form of a declaration of right.

61 However, even on the approach for which Ms Evans contended, there would remain problems with the declaration made by the Federal Magistrate. The first part of the declaration made by his Honour declares 'that the respondent unlawfully discriminated against the applicant contrary to s.14(2) of the Sex Discrimination Act by its actions in connection with the applicant's taking of carer's leave prior to 30 June 2000' (my emphasis). A declaration in such terms is open to objection on two grounds. First, the declaration does not identify the 'actions in connection with the applicant's taking of carer's leave' upon which it is based. In this case, the relevant uncertainty as to the action to which the declaration refers is exacerbated by the fact that his Honour's reasons for judgment fail clearly to identify the actions intended to support the making of the declaration. Secondly, it may be assumed that amongst the actions taken within the NCA in connection with the applicant's taking of carer's leave would have been entirely lawful conduct such as the maintaining of leave records, the reallocation of duties etc. Yet the declaration is so widely drawn that actions of these kinds fall within its terms. 62 I return to the issue of Ms Evans' entitlement to declaratory relief below.

No evidence of connection between attendance record and non‑renewal of contract 63 The reasons for decision of the Federal Magistrate disclose the following reasoning process so far as the connection between Ms Evans' attendance record and the non-renewal of her contract is concerned: (a) Mr Purchas found Ms Evans' attendance record unsatisfactory; (b) Mr Purchas gave Ms Evans a lower grading on the Performance review than he otherwise would have because of her attendance record; (c) the decision not to renew Ms Evans' contract was taken in part because of the grading given to her on the Performance review. 64 There was considerable evidence before his Honour capable of supporting a finding that Mr Purchas found Ms Evans' attendance record unsatisfactory. Mr Purchas himself gave evidence that he had concerns that Ms Evans 'wasn't able to complete the work on the team because she wasn't there'. Mr Baker, Ms Evans' operational supervisor, gave evidence that Mr Purchas had said that the amount of carer's leave taken by Ms Evans was unacceptable. 65 There was also evidence before his Honour capable of supporting a finding that Mr Purchas gave Ms Evans a lower grading on the Performance review than he otherwise would have because of her attendance record. In particular, Mr Purchas agreed in cross‑examination that Ms Evans' attendance record, and its impact on the amount of work that she was able to perform, was a factor in the grading that he gave her on the Performance review. 66 There was no direct evidence before his Honour that the decision not to renew Ms Evans' contract was taken in part because of the grading given to her on the Performance review. Tragically the person who made the decision not to renew Ms Evans contract had died before the hearing in the Federal Magistrates Court. His Honour drew an inference that the decision was taken at least in part because of the grading given to Ms Evans on the Performance review. 67 There was evidence before his Honour, given by Mr Purchas in cross‑examination, that an employee's grading on a performance review was, in general, a factor taken into account when considering whether that employee's contract should be renewed. There was evidence before his Honour that Ms Evans was, at the relevant time, one of two analysts on non-ongoing contracts and that the contract of the other analyst had been renewed. There was also evidence before his Honour that a third analyst had resigned and not been replaced. There was no evidence before his Honour which provided an explanation personal to Ms Evans as to why her contract was not renewed. Evidence was led to the effect that budget cuts required staffing levels to drop and that this, in effect, rendered staff on non-ongoing contracts vulnerable. However, this evidence did not explain the process whereby it was decided first, that in all the circumstances, the contract of an analyst should not be renewed and secondly, that that contract should be Ms Evans' contract as opposed to the contract of the other analyst on a non-ongoing contract. 68 In my view, the evidence identified above was capable of supporting the inference drawn by his Honour. Having regard to the way in which the ground of appeal is formulated it must therefore be rejected ‑ notwithstanding that an appeal under subs 24(1) of the Federal Court Act is an appeal by way of rehearing (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 55 IPR 354 per Weinberg and Dowsett JJ at [50]-[54]). I record, however, that even had the ground of appeal contended that his Honour erred in drawing the inference, I would have rejected it in view of the very real advantage that his Honour had in hearing and seeing the witnesses.

No evidence concerning a male comparator 69 As is mentioned above, direct discrimination involves one person (the discriminator) treating another person (the aggrieved person) less favourably than, in circumstances that are the same or not materially different, the discriminator would treat a person of the opposite sex to the aggrieved person. Mr Beckett, counsel for Ms Evans, acknowledged that there was no evidence before the Federal Magistrate that showed how a male NCA analyst who took the same, or comparable, amounts of leave as Ms Evans would have been treated by his employer. Mr Beckett suggested that, by an analogous process of reasoning to that adopted by Allsop J in Thomson v Orica Australia Pty Ltd [2002] FCA 939; 116 IR 186 at [138], his Honour was entitled to conclude that a male comparator would have been treated more favourably than Ms Evans. 70 Thomson v Orica concerned an allegation of discrimination on the ground of pregnancy. Allsop J found that Ms Thomson, contrary to her employer's policy with respect to employees taking family leave, was effectively demoted on returning to work after taking a period of maternity leave. The relevant comparator, his Honour found at [121]-[122], was an individual who, in effect, held a similar position to that held by Ms Thomson, had her level of experience, took the same period of leave as her and who had a right to return on the same basis as Ms Thomson. At [138] his Honour said: 'I assume that Orica would not treat the posited person in [121(c)] [ie the comparator] contrary to any policy that it had laid down for his or her treatment. There was no evidence that it would do so. Thus the comparison called for does, in point of practical application, reduce to [sic] the question to whether Ms Thomson was treated unfavourably, but only because of the identification of the person whose treatment is compared to Ms Thomson's.' 71 The analogy which Mr Beckett sought to draw between the employer's family leave policy considered by Allsop J in Thomson v Orica and the personal leave entitlements of NCA staff under the Certified Agreement is, in my view, not apt. The Certified Agreement simply establishes the entitlement of NCA staff to leave. It does not provide that all staff who take leave within their respective entitlement must be treated equally when the question of contract renewal arises or anything to like effect. Although the Federal Magistrate appears to have considered otherwise, it is not illegitimate for an employer, all other things being equal and provided indirect discrimination is avoided, to favour for re-employment an employee who takes limited leave over an employee who regularly takes a lot of leave, albeit that it is leave to which he or she is entitled. By contrast, the family leave policy considered in Thomas v Orica called for Ms Thomson to be treated more favourably than his Honour found that she had been on her return from maternity leave. The contention advanced by Ms Evans' notice of contention must fail. 72 In [105] of his reasons for judgment (see [27] above) the Federal Magistrate made reference to the Australian Bureau of Statistics publication 'Labour Force Status and Other Characteristics of Families'. That publication was of considerable potential significance so far as Ms Evans' claim of indirect discrimination was concerned. However, by itself it was of little significance so far as the claim of direct discrimination was concerned. 73 I conclude that his Honour did err by concluding, in the absence of relevant evidence, that Ms Evans had been treated less favourably than, in circumstances that are the same or are not materially different, the respondent would have treated a man. 74 However, it does not follow from the above conclusion that there was no evidence that Ms Evans was treated less favourably than an employee without family responsibilities who took personal leave within his or her entitlements. There was evidence before his Honour given by Mr Baker that Mr Purchas had expressed concern about the amount of carer's leave that Ms Evans was taking and described it as 'excessive' and 'unacceptable'. Mr Purchas denied that he had expressed concern about Ms Evans taking carer's leave, suggesting that his concern was simply with the total amount of leave that she took. Nonetheless, it was open to his Honour to accept the evidence of Mr Baker and to find that Mr Purchas' concern about the amount of carer's leave taken by Ms Evans influenced the grading which she received on the Performance review. That is, that Ms Evans was treated less favourably than an employee who took an equivalent amount of leave that was not, or was not to a significant extent, carer's leave. It was Ms Evans' family responsibilities that led to her taking carer's leave. 75 I reject the contention that there was no evidence before the Federal Magistrate capable of supporting a finding that the respondent was treated less favourably than an employee without family responsibilities who took personal leave within his or her entitlement. 76 The conclusion set out in [73] above renders it unnecessary to consider separately whether his Honour erred by reversing the onus of proof on the question of whether Ms Evans had been discriminated against on the ground of her sex.

Damages 77 The appellant has not successfully challenged the finding of the Federal Magistrate that the appellant unlawfully discriminated against Ms Evans on the ground of her family responsibilities by dismissing her. The sixth ground of appeal, which asserts that his Honour erred in ordering the appellant to pay damages to Ms Evans, therefore fails. 78 The contention that his Honour awarded damages that were in all of the circumstances excessive was based upon a challenge to the amount of general damages awarded to Ms Evans by his Honour. His Honour's reasons for awarding Ms Evans the sum of $25 000 for non-economic loss are set out in [32] above. 79 The reference within his Honour's reasons to Wilcox J awarding damages of $20 000 in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 is puzzling. In Hall v Sheiban the Full Court (Lockhart, Wilcox and French JJ) held that the Human Rights and Equal Opportunity Commission ('HREOC') had erred in declining to make a declaration for the payment of damages to the applicants. Their Honours remitted the matter to HREOC to allow the appropriate compensation for the loss and damage suffered by the applicants respectively to be assessed. I have not been able to find out whether HREOC made assessments on the remitter from the Federal Court. 80 His Honour's misapprehension concerning the outcome of Hall v Sheiban in the Federal Court, together with my above conclusion that his Honour's finding of discrimination on the ground of sex cannot stand, make it necessary for me to assess for myself the loss and damage suffered by Ms Evans by reason of the appellant's unlawful conduct. The task is that of assessing the appropriate compensation to be paid to Ms Evans; it is not to impose punishment on the appellant. 81 The Federal Magistrate referred to the award of compensation for non‑economic loss made in Rugema v J Gadsten Pty Ltd (HREOC H97/1). Rugema v J Gadsten Pty Ltd involved an individual who was found to have suffered a severe major depressive disorder and whose 'current loss of mental powers' was assessed to be in the order of fifty to sixty per cent at the time of the hearing. I accept the submission of the appellant that Mr Rugema's loss and damage was considerably more severe than Ms Evans. 82 In Shiels v James (unreported, Federal Magistrate Court of Australia, Kenneth Raphael FM, 13 September 2000) at [79] the Federal Magistrate observed that the authorities: 'indicate a range for damages for hurt and humiliation of between $7,500.00 and $20,000.00. In the higher range of those Judgments the activities complained of constituted either more physical action or more substantial physical sequelae.' (citations omitted)

It seems to me that the range so identified may be higher than the authorities fairly support (see the table published in Human Rights and Equal Opportunity Commission Federal Discrimination Law 2004 at 158). However, it is not necessary for me to express a concluded view on this question.

83 In Leslie v Graham [2002] FCA 32; EOC 93-196 I awarded damages of $16 000 for non‑economic loss. In Elliott v Nanda [2001] FCA 418; 111 FCR 240 Moore J awarded $15 000 general damages. Each of these was a sexual harassment case and the emotional damage suffered by the applicant was, it would seem, greater than that suffered by Ms Evans. 84 In my view the appropriate award for non‑economic loss in the circumstances of this case is $12 000.

conclusion 85 The appeal will be allowed, the orders of the Federal Magistrates Court set aside and fresh orders made in lieu thereof. The parties will be given the opportunity to bring in an agreed minute of the orders to be made, including orders as to costs, to reflect these reasons for judgment. 86 The amounts awarded by the Federal Magistrate by way of special damages for economic loss will not, as I understand it, now be challenged. It may, however, be necessary for fresh calculations of interest to be undertaken in respect of those amounts as well as in respect of the award for non‑economic loss that I propose. 87 In Leslie v Graham at [82] I observed: 'By her application, Ms Leslie has claimed various heads of declaratory relief. The power of the Court to make a declaration is discretionary … I am not satisfied that it is either necessary or appropriate in this case to grant declaratory relief. 88 The power which the Federal Magistrate exercised in granting declaratory relief in this case was also discretionary in nature. I am again inclined to doubt that a case for the grant of declaratory relief in addition to an award of damages has been demonstrated. The parties will, however, have an opportunity to urge a different view upon me should they wish to avail themselves of it. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 25 May 2004 Counsel for the Appellant: R M Henderson

Solicitor for the Appellant: Australian Government Solicitor

Solicitor for the Respondent: Legal Aid Commission of NSW