Federal Magistrates Court of Australia|2002-07-05

Escobar v Rainbow Printing Pty Ltd (No.2) [2002] FMCA 122 (5 July 2002)

HUMAN RIGHTS - Sex discrimination - family responsibilities - dismissal from employment - insistence upon full time work.

Barghouthi v Transfield Pty Limited [2002] FCA 666

Bogel v Metropolitan Health Services (2000) EOC 93-069

Hickie v Hunt and Hunt (unreported full judgment, 7 March 1998, Human Rights and Equal Opportunity Commission, per Commissioner Evatt)

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

HREOC v Mt Isa Mines (1993) 188 ALR 80

Song v Ainsworth Game Technology Pty Limited [2002] FMCA 31

1. The respondent unlawfully discriminated against the applicant on the ground of family responsibilities.

1. The respondent is to pay damages to the applicant of $7,325.73.

2. The respondent is to provide the applicant with a written apology in terms to be agreed between the parties.

1. SANDRA ESCOBAR was a full time employee of the respondent employed as a payroll and accounts clerk. She brings this application pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act") claiming that she was the subject of sexual discrimination contrary to ss. 5, 7, 7A, 14 and 106 of the Sex Discrimination Act 1984 (Cth) ("the SDA"). In particular, the applicant claims that she was dismissed from her employment contrary to s.14(3A) of the SDA.

2. The dispute between the parties falls within a narrow compass. It centres on two conversations between Mr MICHAEL MEOUSHY (the sole director and shareholder of the respondent) and Ms Escobar, the first occurring some time between 25 May 2000 and 15 June 2000 and the second occurring on 1 August 2000. The parties disagree on whether the applicant was granted an extension of her maternity leave in the first conversation and on what, if any, arrangements were made for her continuing employment in that conversation. The parties also disagree as to whether in the second conversation Mr Meoushy dismissed Ms Escobar from her employment.

3. The applicant's complaint to HREOC was terminated on 25 August 2001. These proceedings were commenced by way of an application filed on 21 September 2001 and a supporting information sheet, affidavit by the applicant made on 21 September 2001 and annexures, filed on the same day. In addition to those documents the applicant relied upon two affidavits made on 14 December 2001 and 22 February 2001 by herself, as well as on affidavits by Geoffrey William Scully, made on 14 December 2001 and David Jonathon Brendish, made on 8 January 2002.

* the applicant was employed as a payroll and accounts clerk with the respondent from 3 November 1997 to 1 August 2000;

* the applicant commenced maternity leave on 10 December 1999 for an agreed period of six months;

* the respondent employed a Ms Lorena Vargas to take over the applicant's duties;

* on 25 May 2000 in a telephone call to Mr Meoushy, the applicant sought to have her maternity leave extended to 1 August 2000, because she was having problems weaning her baby;

* the respondent, by its actions, agreed to the extension of maternity leave on the basis that the applicant would return to work for one week in June 2000 to help with the implementation of the GST;

* during the alleged telephone conversation on 25 May 2000 the applicant asked Mr Meoushy whether he wanted her to return to work full time or part time with a possible job share arrangement between herself and Ms Vargas. Mr Meoushy said that he would discuss this further with the applicant when she came to work for one week commencing on 26 June 2000;

* on or about 23 June 2000 Mr Meoushy arranged for Ms Vargas to telephone the applicant to cancel the agreed week's work commencing on 26 June 2000. The applicant told Ms Vargas she would see her on 1 August 2000;

* Mr Geoff Scully had a conversation with Mr Meoushy in July 2000 in which Mr Meoushy said that he was holding a job open for Ms Escobar and that she would be returning in August;

* the applicant returned to work on 1 August 2000. She had made arrangements for her two children to be placed in full time child care at Bankstown Family Day Care and Fairfield City Family Day Care Centres from that date;

* Mr Meoushy asked the applicant how many days she would like to work. She said, "two days per week". Mr Meoushy said, "there is no work here for you" and the applicant then left;

* later that day upon returning home the applicant telephoned Mr Meoushy to clarify whether her full time position was still available for her. She was told by Mr Meoushy that she could not work full time "because you have two children";

* Mr David Brendish alleged that Mr Meoushy had made comments to him on more than one occasion which indicated that Mr Meoushy did not think women with children should be working.

5. The applicant claims that she was dismissed by the respondent on 1 August 2000 and that the dismissal was by reason of her family responsibilities contrary to s.14(3A) of the SDA.

6. Alternatively, the applicant claims that if she was not discriminated against contrary to s.14(3A) she was indirectly discriminated against on the ground of her sex contrary to s.14(2)(c) of the SDA. This is put on the basis that she was subjected to a requirement to work full time, being a requirement that was likely to disadvantage women because of their disproportionate responsibility for the care of children.

7. The respondent relied upon its response to the application, filed on 26 November 2001, as well as on two affidavits by Mr Meoushy, made on 8 November 2001 and on 16 January 2002.

8. The respondent says that Ms Escobar was a full time weekly employee employed by the respondent as a payroll and accounts clerk under the Clerical and Administrative Employees (NSW) Award. The respondent accepts that the applicant was entitled to maternity leave under that award, under the Industrial Relations Act 1996 (NSW) ("the Industrial Relations Act") and the Workplace Relations Act 1996 (Cth) ("the Workplace Relations Act").

9. The respondent alleges (and the applicant agrees) that Ms Escobar took maternity leave and was due to return to work after six months, which expired on 10 June 2000. Mr Meoushy claims that the telephone conversation alleged to have taken place on 25 May 2000 in fact took place shortly after 10 June 2000. Mr Meoushy says that Ms Escobar contacted him to advise that she could not return at the end of her maternity leave because of difficulties with her second child. He says further that Ms Escobar indicated that she could not return to work full time. She indicated that the earliest she could return would be in August 2000 although no date was specified. Mr Meoushy says that if the possibility of a job sharing arrangement with Ms Vargas was canvassed then it was rejected as it was not acceptable to his company, because he was dissatisfied with Ms Vargas' performance in the position during Ms Escobar's absence.

10. The respondent submits that the applicant and the respondent reached no agreement on the extension of Ms Escobar's maternity leave and that, absent any agreement, there was no right to an extension of that leave. Mr Meoushy maintains that the telephone call from Ms Escobar was directed to a simple request for her to work part time, commencing some time after August 2000, coupled with a clear indication that she was no longer able to work full time. Mr Meoushy says that he sought from Ms Escobar an undertaking that she was able to return to work full time but that Ms Escobar could not give that commitment.

11. The respondent accepts that an arrangement to work for a period of one week in June 2000 was reached but says that this arrangement was cancelled by the respondent following a delay in the provision of computer software necessary for the work on introduction of the GST. The respondent also accepts that further discussion about the applicant's employment was envisaged during that week but says that that discussion did not take place when the week's work was cancelled. There was no contact between the respondent and Ms Escobar from that time until 1 August 2000 when Ms Escobar unexpectedly arrived at work.

12. In the period following the conversation between Mr Meoushy and Ms Escobar alleged to have taken place in early June 2000 Mr Meoushy had moved to engage on behalf of the respondent a full time replacement for Ms Escobar. This person had been recruited from New Zealand and was to commence in September 2000 following the settlement of his affairs in New Zealand. When Ms Escobar arrived at work on 1 August 2000 her position was no longer available.

13. The respondent submits that Mr Meoushy acted reasonably in this regard because, as a result of the June 2000 conversation, he was entitled to assume that Ms Escobar was not going to return and that she had resigned her full time employment. The respondent denies that it was under any compulsion to employ Ms Escobar on a part time basis either under the award or under the Industrial or Workplace Relations Acts. When Ms Escobar attended on 1 August 2000 Mr Meoushy explained to her that her full time position had been filled and that no part time position then existed (save for two part time cleaning positions which were not appropriate in any event). Mr Meoushy confirmed this position in the subsequent telephone conversation between the parties on 1 August 2000.

14. The applicant advised HREOC when she made her complaint that she had previously taken unfair dismissal proceedings in the NSW Industrial Relations Commission but that she had discontinued those proceedings following a failed effort at conciliation by the Commission. No issue of jurisdiction was raised before HREOC and the issue was not argued before me. I have proceeded on the basis that no issue of jurisdiction arises. An issue of jurisdiction may have arisen for consideration if the NSW Industrial Relations Commission had made a decision within its jurisdiction on the proceedings before it: Barghouthi v Transfield Pty Limited [2002] FCA 666 at paragraphs 11-14. That issue may have arisen because of the terms of s.10(4) of the SDA. As the issue was not argued before me and as the proceedings before the NSW Industrial Relations Commission were discontinued, I have not considered it necessary to make any ruling as to jurisdiction.

15. The first issue to be resolved is when the conversation between the parties took place in late May or early June and what was said and resolved in that conversation. Mr Meoushy asserted on affidavit that the conversation took place on or about 15 June 2000 but he was less certain under cross-examination. He could not specifically identify the date on which the telephone conversation took place although he thought it occurred after the applicant was due to return to her employment on 10 June 2000. The applicant was adamant that the conversation took place on 25 May 2000. Telephone records for the home telephone account of the applicant were tendered (exhibit A4) and establish that a long telephone conversation took place between the home telephone number of the applicant and the telephone number of the respondent on 25 May 2000. A number of other telephone calls took place between the applicant's phone number and that of the respondent after that conversation but, apart from a long conversation on 31 May 2000, their duration was significantly less. The applicant explained that these were social conversations with other employees of the respondent. The only call from the applicant's number to that of the respondent in June 2000 was a short conversation on 2 June 2000. I prefer the clear recollection of the applicant, corroborated by the telephone record, to the less certain recollection of Mr Meoushy. I find that the first material conversation between the parties took place on 25 May 2000, prior to the expiration of the applicant's maternity leave.

16. The recollections of the applicant and Mr Meoushy about this conversation leave no room for dispute on the following facts:

* Ms Escobar indicated that she would need more time to care for her second child as she was having difficulties with the child;

* she also expressed a firm wish to work part time.

17. I accept Mr Meoushy's evidence that he was, during this conversation, unwilling to agree to the request that Ms Escobar work part time. It is clear that he regarded Ms Escobar as a valuable employee and that he was unhappy with the performance of her replacement during her absence, Ms Vargas. Mr Meoushy clearly missed having the services of Ms Escobar and wanted her back full time and as soon as possible. He asked Ms Escobar to come into work for one week at the end of June to assist with the GST. She agreed. Ms Escobar asserts that she raised the prospect of a job sharing arrangement between herself and Ms Vargas. I accept her evidence. I find that Mr Meoushy was unenthusiastic but that he invited Ms Escobar to discuss her idea with Ms Vargas and stated that he and Ms Escobar could discuss Ms Escobar's future working arrangements during the week at the end of June.

18. I find that at this time Mr Meoushy formed the view that Ms Escobar would probably not be returning to work full time and that she would not be returning to work for several months, apart from the week proposed at the end of June. He did not reject outright her request for part time employment although he was clearly not happy about it. Neither did he reject her request for a delayed return to work. It appears from paragraphs 7 and 8 of his first affidavit that Mr Meoushy had little detailed knowledge of Ms Escobar's employment entitlements and that he did not understand until recently that she was able to extend her maternity leave beyond the initial agreed period of six months. However, he did understand that Ms Escobar would be away from work for more than six months as a result of the conversation on 25 May 2000.

19. Significantly, at paragraph 22(b) of his first affidavit Mr Meoushy accepts that Ms Escobar wanted to return to work on 1 August 2000 and further states that he made her return to work then conditional upon her working full time. However, he also says that he intended to discuss her employment further with her at end of June 2000. Further, under cross-examination Mr Meoushy admitted that he discussed part time employment with Ms Escobar and that her full time job remained open to her: transcript 05.04.2002, p.42.28.

20. Under s.64(1) of the Industrial Relations Act an employee has a right to an extension of an agreed period of less than 52 weeks maternity leave up to a maximum of 52 weeks if notice is given in writing prior to the expiration of the first period of maternity leave. No such written notification was given but, pursuant to s.67(1) of that Act the respondent would not be able to rely on that failure, given that no advice about the obligation was given to the applicant. In any event, pursuant to s.64(2) of the Industrial Relations Act an employer can agree at any time to an extension of maternity leave beyond 12 months.

21. Mr Meoushy gave evidence that at the time he thought that maternity leave was limited to six months: transcript 05.04.2002, p.38.22. Nevertheless he did not insist upon Ms Escobar returning to work on 10 June 2000. I find that Mr Meoushy agreed by acquiescence to a three month extension of Ms Escobar's maternity leave. He may not have understood that that was what he was doing but that is the effect of what he did. That is what Ms Escobar was seeking although she may not have said so expressly. It is clear from the terms of a letter dated 7 January 2000 obtained by Ms Escobar from Ms Vargas on behalf of the respondent that Ms Escobar knew that her maternity leave could be extended from six months up to 12 months. Mr Meoushy was clearly anxious for her to return to work in June but he did not insist upon that return. Instead, he offered a week's employment at the end of June as a compromise pending the later return of Ms Escobar to work. It was left unclear whether Ms Escobar would be working full time or part time when she returned. It is clear that Ms Escobar expressed the clear view that she only wanted to work part time, probably two days per week. It is also clear that Mr Meoushy was unhappy with that proposal. The position was left unresolved and on the basis that the parties would discuss the matter further at the end of June. It follows that the parties were in the course of negotiating an alteration to the employment of the applicant and that those negotiations had not concluded. The employment relationship continued.

22. If, as he claims, Mr Meoushy treated Ms Escobar's request for part time employment as a resignation from her full time employment one would have expected that he would formally confirm that resignation. There was no confirmation of any kind of the outcome of the conversation of 25 May 2000. The issue of Ms Escobar's continuing employment was left up in the air to be resolved during the last week in June. Mr Meoushy conceded that under cross-examination: transcript 05.04.2002, p.37.07.

23. I find that that resolution never took place. In his affidavits and under cross-examination, Mr Meoushy stated that when the need for the week's employment in June disappeared because of the unavailability of the computer software, he arranged for Ms Vargas to inform Ms Escobar that she was no longer required. He stated under cross-examination that he intended this to be a confirmation that there was no further work available for Ms Escobar at all (transcript 05.04.2002, p.43.05), but Ms Escobar clearly took the telephone call from Ms Vargas to be simply advice that she was not required during the week in June. In his first affidavit at paragraphs 15 and 22(g) Mr Meoushy makes clear that the only instruction given to Ms Vargas was to inform Ms Escobar that she was no longer required in the last week in June 2000. Although he made conflicting statements under cross-examination he finally confirmed that: transcript 05.04.2002, p.71.07. There was no further discussion of any kind between Ms Escobar and Mr Meoushy until Ms Escobar turned up for work on 1 August 2000. Neither party called Ms Vargas to give evidence in order to clarify the message that she delivered at the end of June

24. I do not place any weight on the evidence of Mr Scully. His evidence provides no reliable corroboration of Ms Escobar's recollection of the conversation she and Mr Meoushy had on 25 May 2000. Corroboration is not needed in any event. Mr Meoushy accepted under cross-examination that he held out the prospect of further employment discussions with Ms Escobar in their conversation on 25 May 2000 but by the end of June he had changed his mind: transcript 05.04.2002, p.46.15. Mr Meoushy gave evidence that at the time the week's employment was cancelled in June he decided that he would need to employ another full time accounts manager and made arrangements for the employment of a full time replacement for Ms Escobar. That replacement was recruited from New Zealand.

25. By the end of June Mr Meoushy had in his own mind closed off the prospect of further negotiations with Ms Escobar, but he failed to tell her so at that time. The only message conveyed to Ms Escobar was that she was no longer required for the week at the end of June. She was clearly left with the impression that she should return to work on

1 August 2000 as she understood had been agreed, although the capacity in which she would be returning was not resolved.

26. The recollections of Ms Escobar and Mr Meoushy about what was said when Ms Escobar arrived for work on 1 August 2000 differ more as to terminology than substance. Ms Escobar's recollection is set out at paragraphs 13 and 14 of her first affidavit. She deposes that the conversation went as follows:

He said: "What are you doing here and how did you and Lorena work out your hours?"

I said: "We have not worked out any hours and you knew that I was starting on 1 August when I spoke to you on the phone. You told Lorena to call me to cancel the June start dates due to the computer upgrades."

He said: "There is no part-time work available here and you legally should have started on 10 May [sic]. You didn't so there is no work here for you. Plus, maternity leave entitlements are only for 6 months."

I said: "Legally I am entitled to change the dates once but I know you do not like to do things legally. I will leave now as I do not like your attitude."

Upon returning home I called work and spoke to Michael Meoushy. We had a conversation with words to the following effect:

I said: "Throughout that little meeting we just had you never once offered me my full-time position back."

I said: "You cannot tell me what I can do or cannot do."

He said: "Anyway you wanted to do part-time work not full-time."

I said: "If I remember correctly when we spoke in May I told you about the idea, IDEA, that Lorena and I had and you told me we could speak about it upon my return."

He said: "What is this? I do not have to put up with that language."

I said: "What is the problem? I am being cool, calm and collected and I have not sworn at you. It looks like you have a problem speaking to people. You do not like speaking to people do you?"

I said: "The question I have is simple and requires a yes or no answer. Can I have my full-time position back? Yes or no."

Mr Meoushy's recollection is set out in paragraph 17 of his first affidavit. He deposes as follows:

On 1 August 2000 I came into the office and found Mrs Escobar at her desk. I called her into my office and I said to her,

She said: "I've come back to work as we have agreed."

I said: "Agreed on what? We didn't agree on anything, you did not want to come back to work full-time and I didn't have part-time work for you. I'm sorry you'll just have to leave."

She became upset, but did leave. As soon as she got home she called me and said angrily,

"Well fine if you want to talk to people in that bad manner, haven't you got a full-time job then instead of part-time?"

I said: "Well there is nothing available in full-time right now I've had to put on somebody else".

27. I find that these accounts are not in substance inconsistent and that the likely conversation was an amalgamation of the parties' recollections, allowing for a certain amount of embroidery in the account of Ms Escobar. Mr Meoushy asked Mr Escobar what she was doing at work. He was genuinely surprised. Ms Escobar indicated that she had returned to work as agreed on 25 May 2000. Mr Meoushy queried what agreement she was talking about and asked what she had discussed with Ms Vargas. Ms Escobar said that nothing had been discussed but that she would like to work two days per week. Mr Meoushy stated that there was no part time work available. The conversation between the two developed into an argument and Mr Meoushy instructed Ms Escobar to leave. She did so but later telephoned Mr Meoushy from her mother's home. Ms Escobar then asked if her former full time position was still available to her and Mr Meoushy responded that it was not. By that stage it was too late to give the applicant back her full time job because it had been filled: transcript 05.04.2002, p.58.19.

28. The employment relationship between Ms Escobar and the respondent still subsisted on 1 August 2000. It was Mr Meoushy who terminated the employment relationship at that time. When Ms Escobar attended her employment on 1 August 2000 Ms Escobar was making herself available for part time work. Mr Meoushy rejected that approach. In the subsequent telephone conversation Ms Escobar purported to make herself available for continuing full time work. That approach was similarly rejected. I find that all possible bases for the continuing employment of the applicant were closed off by Mr Meoushy on 1 August 2000 and by his actions he terminated the employment of Ms Escobar on that day.

29. In the telephone conversation on 1 August 2000 Ms Escobar purportedly told Mr Meoushy that she was available to work full time and that her proposal for two days part time work put on 25 May 2000 was simply an idea. Ms Escobar asserts that Mr Meoushy then said that Ms Escobar could not work full time because she had two children. The evidence of Mr Brendish was put forward to corroborate that allegation. I find that account improbable. Mr Meoushy had previously employed Ms Escobar full time with one child and I have already found that he was anxious for her to return full time. I accept Mr Meoushy's account that what he said was that Ms Escobar had previously told him that she could not work full time because she had two children. The fact is that a full time position was no longer available because Mr Meoushy had made arrangements for the New Zealand employee to fill Ms Escobar's full time position. The dismissal made by Mr Meoushy on 1 August 2000 was made because Mr Meoushy had determined that Ms Escobar was unwilling to work full time and Mr Meoushy was unwilling to arrange for Ms Escobar to work part time.

30. Ms Escobar suffered detriment when she was dismissed by Mr Meoushy on 1 August 2000. Two questions then arise. The first is whether Ms Escobar was available for full time work at the time when she was dismissed and secondly, was it unreasonable for Mr Meoushy to refuse to arrange for Ms Escobar to work part time?

31. I find that the applicant was not available for full time work at the time of her dismissal on 1 August 2000. I base that finding on the following facts. The first is that in the conversation of 25 May 2000 Ms Escobar made clear to Mr Meoushy that she only wished to work part time. Secondly, when she presented herself for work on 1 August 2000 Ms Escobar was only making herself available to work part time. Under cross-examination, Ms Escobar confirmed that she had asked for two days work per week on that day. Although she asserted that it was up to Mr Meoushy to decide what her hours would be, she agreed that the conversation between her and Mr Meoushy on that day could be taken to be an offer by her to work two days per week: transcript 04.03.2002, p.41.12. Ms Escobar had booked her children into full time child care, but she expected to change that arrangement once she had sorted out her working hours. Thirdly, in the subsequent telephone conversation on 1 August 2000 Ms Escobar inquired whether her full time position was still available but she was not seriously making herself available for full time work. Mr Meoushy gave evidence that he thought that in that conversation he was being "set up". I find that Ms Escobar made the telephone call for the purpose of confirming what she already suspected: namely, that her employment had been terminated. Fourthly, on or about 30 August 2000 the respondent offered the applicant a full time position. This position was of the same level and remuneration as the applicant's prior position and I find it was genuinely offered. The applicant rejected that offer on the basis that she was not qualified to perform the client relations work inherent in the position and that the position required a substantial amount of city driving. The position clearly carried different duties to the bookkeeping duties formerly undertaken by the applicant but I do not accept that she was unqualified for the position offered. The driving requirement would have made the position somewhat unattractive to the applicant but I find it more likely that her principal reason for rejecting the offer was that she did not wish to work full time. Lastly, the fact is that the applicant has not worked full time since 1 August 2000. She has worked part time since then, generally between 12 and 20 hours per week.

32. The respondent submits that it was reasonable for Mr Meoushy to decline the applicant's request for part time work because the business of the respondent was a small business and it lacked the flexibility necessary to offer part time employment, particularly in an accounting position such as that formerly occupied by the applicant. I reject that submission. Although he was clearly unhappy with the proposal put forward by Ms Escobar on 25 May 2000, Mr Meoushy agreed to discuss part time employment further at the end of June. It follows that at that time he was prepared to countenance the possibility. There was the possibility of a job sharing arrangement with Ms Vargas. Ms Vargas was still employed on 1 August 2000 and she continued in employment for some time thereafter. The only thing which changed between 25 May 2000 and 1 August 2000 was that Mr Meoushy had recruited another full time employee. I accept that that recruitment reduced the flexibility of the respondent to offer part time employment but it was a reduction of flexibility that the respondent brought upon itself. Moreover, that initiative was taken without any reference to the applicant in circumstances where Mr Meoushy had agreed to discuss further with the applicant what her future working arrangements might be. In the circumstances, the refusal by Mr Meoushy on 1 August 2000 to countenance the possibility of part time employment for the applicant and his dismissal of her on that basis was not reasonable.

33. The operation of s.14(3A) of the SDA was considered by Raphael FM in Song v Ainsworth Game Technology Pty Limited [2002] FMCA 31. That case involved a factual situation effectively the reverse of the present, in that the employer compelled the employee to work part time. Federal Magistrate Raphael found that a breach of s.14(3A) does not depend upon a finding of discrimination pursuant to s.5(2) of the SDA. He found that the effect of s.14(3A) is to add a specific form of discrimination, namely dismissal on the ground of family responsibilities. He further found that the discrimination is proved once an applicant has established that she was dismissed and that the dismissal was on the ground of family responsibilities. It is unnecessary for me to express any view on that proposition. I am satisfied on the facts in this case that if a breach of s.14(3A) can be made out on the basis of the dismissal of the applicant on 1 August 2000, discrimination contrary to s.5(1) would also be established, because Ms Escobar, as a woman, was treated less favourably than a male employee without family responsibilities. I accept, in that regard, what Commissioner Evatt said at paragraph 6.17.10 of her decision in Hickie v Hunt and Hunt (7 March 1998, Human Rights and Equal Opportunity Commission). The particular statement by Commissioner Evatt has not been reported. She said:

"Although no statistical data was produced at the hearing, the records produced by Hunt and Hunt suggest that it is predominantly women who seek the opportunity for part time work and that a substantial number of women in the firm have been working on a part time basis. I also infer from general knowledge that women are far more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work after maternity leave, in order to meet family responsibilities. In these circumstances I find that the condition or requirement that Ms Hickie work full time to maintain her position was a condition or requirement likely to disadvantage women."

34. Likewise, the establishment of discrimination contrary to s.14(3A) of the SDA, on the facts of this case, also establishes discrimination contrary to s.7A of the SDA.

35. Raphael FM also considered the meaning of the expression "on the ground of family responsibilities". He decided that expression must be read subject to s.8 of the SDA which provides relevantly that a reference in s.5(1), 6(1) or 7(1) or s.7A to the doing of an act by reason of a particular matter includes a reference to the doing of an act by reason of two or more matters that include the particular matter, whether or not the particular matter is a dominant or substantial reason for the doing of an act.

36. It is unnecessary for me to consider whether s.8 is applicable also to the doing of acts contrary to s.14(3A). The breach of s.14(3A) on the facts in this case is clear. The issue is a simple one of causation. The "but for" test is applicable: HREOC v Mt Isa Mines (1993) 118 ALR 80 at page 99. There is no doubt in my mind that the applicant was dismissed by the respondent when she presented herself for work on 1 August 2000. The employment relationship between the parties had continued to that point and the applicant was clearly sent away from the workplace on the understanding that the employment relationship was then severed. The reason for the dismissal is also clear. The reason was that Mr Meoushy was unwilling to countenance at that time the possibility of the applicant working part time and had filled her full time position, rendering that position also unavailable. Mr Meoushy had taken that action because he had formed a view (I think correctly) that the applicant was unwilling to work full time because of her family responsibilities. I am left in no doubt that the applicant was dismissed from her employment on 1 August 2000 because of her family responsibilities.

37. If I am wrong in that conclusion I find in the alternative that the respondent discriminated indirectly against the applicant contrary to s.14(2)(c) of the SDA. That is because Ms Escobar was denied the opportunity to work part time, being a denial that was likely to disadvantage women because of their disproportionate responsibility for the care of children. The respondent refused to countenance the possibility of the applicant working part time, either on 1 August 2000 when the applicant presented herself for work or on 30 August 2000 when the offer of alternative full time employment was made. I rely on the reported decision of Commissioner Evatt in Hickie v Hunt & Hunt (1998) EOC 92-910 in support of that finding of discrimination. The respondent has no defence under s.7B of the SDA because Mr Meoushy's change of attitude to part time work between 25 May 2000 and 1 August 2000 was not reasonably based, for the reasons that I have already set out.

38. The respondent acted at all times through Mr Meoushy. His actions were, in effect, those of the respondent and vicarious liability on the part of the respondent for Mr Meoushy's actions is clearly established. No defence was raised under s.106(2).

39. Damages must be assessed on the torts based principle of placing the applicant in the position she would have been in if the wrong had not been committed. The applicant claims damages for past and future economic loss, as well as for non-economic loss. The parties agree that the starting point in the assessment of the applicant's economic loss is her full time remuneration, including superannuation of $670.24 per week. However, I find that the applicant has suffered economic loss of only two fifths of that amount because she was only available to work two days per week on and after 1 August 2000. If the discrimination had not occurred the applicant would have been employed by the respondent from 1 August 2000 for two days per week as she had requested.

40. The applicant also had a duty to mitigate her loss. The applicant deposed as to her efforts in her affidavit made on 22 February 2002. I accept that the applicant made some efforts to find employment between 1 August 2000 and 1 December 2000. In December 2000 the relationship between the applicant and her partner deteriorated and they separated in January 2001. I find that the applicant's efforts to find alternative employment after November 2000 ceased. Without the support of her partner, Ms Escobar was unable to work, apart from limited casual work that she had undertaken for a company called Arrowtech Pty Ltd since 1996. She continues to do casual work for that company. The applicant's inability to undertake more work from December 2000 onwards is not a matter for which the respondent should be held responsible and so the assessment of economic loss is limited to the period 1 August 2000 to approximately 1 December 2000. I find that the applicant has suffered economic loss in the sum of $268.10 per week for 18 weeks. That is an amount of $4,825.73.

41. I will make no award for future economic loss. The period during which the applicant was looking for alternative employment was relatively short and her inability to find employment over that period, for which the respondent must compensate her, will not have a significant impact upon her future employment prospects. In addition, the respondent has volunteered to give the applicant a statement of service which would assist her in obtaining employment in the future should she wish to.

42. As to non economic loss, the applicant suffered hurt, humiliation and distress when she was terminated on 1 August 2000. In Hickie v Hunt & Hunt an amount of $25,000 was awarded for non economic loss. In Song v Ainsworth Game Technology the sum of $10,000 was awarded. Both of those cases involved a continuing employment relationship in unsatisfactory circumstances and the distress of the applicant was ongoing. In the present case the distress of the applicant was severe initially but would have resolved within a few months when the applicant reconciled herself to her present position. In addition, there was an intervening factor of the breakdown of the applicant's personal relationship with her partner for which the respondent was not responsible. An award of damages for non-economic loss in the present case should be somewhat lower than that awarded in Hickie and in Song. The award made in Bogel v Metropolitan Health Services (2000) EOC 93-069 was in the sum of $2,500 which I find to be an appropriate award in the present circumstances.

43. The applicant is also entitled to an apology and the respondent has offered to provide an apology should liability be found. The terms of the apology can be agreed between the parties.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Driver FM

Rights and Equal Opportunity Commission Act 1986

Discrimination Act 1984

Escobar v Rainbow Printing Pty Ltd

At a glance

Court

Decision date

Source

Judgment (94 paragraphs)

Escobar v Rainbow Printing Pty Ltd (No.2) [2002] FMCA 122 (5 July 2002)

Parties

Legislation Cited (3)

Cases Cited (2)