REASONS FOR JUDGMENT
This is an application brought pursuant to s170CP of the Workplace Relations Act 1996 ("the Act"). The applicant alleges that her employment was terminated for a reason which included a reason prohibited by s170CK of the Act. The applicant seeks orders pursuant to s 170CR of the Act. The applicant contends that her employment was terminated for a reason based upon her sex or pregnancy, family responsibilities or absence on maternity leave.
The respondent contends that the sole reason for the termination of the employment was the operational requirements of the business and that the termination was not for the reason and did not include as part of the reason the applicant's sex, pregnancy, family responsibilities or absence on maternity leave. The respondent contends that the redundancy occurred as a consequence of there being no work of a type suitable to the applicant's skills and experience available for her upon her return from maternity leave. It contends that the position in which she was employed prior to her maternity leave commencing no longer existed and that there was no other position for which she was suitable for appointment.
The applicant concedes that the respondent reorganised the workplace and that as a result of the restructure a number of redundancies occurred. The applicant contends however that the respondent took no steps to provide for a position to be available upon her return from maternity leave and selected the applicant for redundancy because she was absent from work at a time when redundancies were being considered. The applicant also contended that at the same time as redundancies in other areas were being discussed, new employees were being engaged to commence work immediately in the applicant's former department. The applicant contends therefore that part of the reason for the termination of her employment was her absence from work on maternity leave or on account of her sex, pregnancy or family responsibilities.
The respondent is a distributor and wholesaler of stationery and office products. The majority of its business is conducted by receipt of telephone orders from retail sales outlets. In recent years the profile of retail sales outlets, the respondent's major customers, had undergone significant change. The evidence is that the industry profile altered in that there was a greater consolidation of a number of smaller operators. In addition larger volume retailers had entered the market and the respondent's customer base altered to focus on larger account holders. There is no evidence that the volume of sales altered, although there is evidence that the amount of clerical and administrative work diminished as a consequence of the changed customer profile and the reorganisation of the manner in which the work was performed at the respondent. This reorganisation also included the installation of a new computer operating system in 1996.
The applicant was employed by the respondent initially as a filing clerk. She was employed on a probationary period of three months, which period was extended for one month. She was appointed to a permanent position as a filing clerk in October 1995. During the course of her employment she worked in the customer service department, the accounts department and the general office. After working as a filing clerk for approximately twelve months, Ms Treadwell was given the duties of Returns Officer in the Customer Services department. This position required that she deal by telephone with customers, generally warehouse personnel, in relation to returns of products, whether because they were faulty or for other reasons. The duties involved locating invoices, providing credit invoices, adjusting computer records and liaison with the customer over the telephone.
In June 1996 the applicant advised the respondent that she was pregnant and shortly thereafter advised in writing of her request to take maternity leave to commence in February 1997. At this time she was working in the Customer Service area as a Returns Officer. In August 1996 she applied for a position in the accounts area of the respondent. During the course of the interview she advised that part of the reason for her applying for the position was because she had had a recent bad experience in the returns area with an angry customer. She was not successful in obtaining the accounts position.
The applicant continued working in the Customer Services area as a Returns Officer. In September 1996 she was offered a temporary position in the accounts area. The purpose of the temporary position was to overcome a backlog of accounts and invoices which had been building for some time. The task in the job was to enter details of invoices and cross check invoice and account information. The applicant commenced working in this area in September. It was understood that the position was to be a temporary one. Ms Treadwell's evidence was that she assumed she would return to her previous position in Customer Service at the completion of the task. She initially understood that this would be shortly after the Christmas break. In contrast however, the evidence of Mrs Helen Kambouris, the supervisor in the Customer Service Area, was that she had no expectation that the applicant would be returning to that area even though there had been no discussion as to this fact with the applicant. Mrs Kambouris' evidence was that once the applicant had left the area she had no further responsibility for her and that consequently there was no requirement on her to find the applicant a position in the Customer Service area when she returned from maternity leave. The evidence of the respondent's managing director, Mr Seers, as to this matter was unclear. The evidence of the respondent's manager, Mr Bottomer, was that at the time the applicant was transferred to the temporary position, her job in the Customer Service department would no longer be available and that this was made clear to the applicant. The evidence was that at the time the temporary position was offered, and at the time of the first interview, he was aware that the applicant was pregnant and would be taking maternity leave in February 1997. He agreed with counsel for the applicant's proposition that, having regard to the date of the maternity leave, the timing of the temporary position was good and that the temporary position would take the applicant through to the time she went on maternity leave.
I accept the applicant's evidence as to the circumstances of her transfer. I do not accept that she was conscious or ought to have been conscious of the fact that being transferred into the temporary position resulted in her position in the Customer Service area disappearing. In general I preferred the applicant's evidence as to events to that of the respondent's witnesses. I found her to be a frank and forthcoming witness, who directed herself to the questions asked and made concessions as to matters, such as her experience, which were against her interest. In contrast I found Mr Bottomer and Mr Seers to be uncertain as to matters of detail and there was some conflict between their evidence as to the applicant's experience and duties and the work being performed by the new employees, and that of Mrs Kambouris.
In January 1997 Ms Case, a former employee of the respondent, commenced employment as a casual employee, engaged to take over responsibility for the applicant's duties in her absence. Ms Case continued in the employment of the respondent until the week of the trial of this matter. The evidence is that she initially performed the applicant's tasks in the temporary position and then commenced to undertake a mixture of tasks, including some invoice returns, and general bookkeeping responsibilities. The evidence was that the work associated with the temporary task was completed by end February 1997. The evidence of Mr Bottomer was that approximately 20 per cent of the work which continued to be performed by Ms Case constituted work similar to returns work which had been previously performed by the applicant. The rest of the work allocated to that employee was work for which the applicant did not have the necessary skills or knowledge.
The applicant was due to commence her maternity leave in February 1997. In January 1997 she was approached by Mr Bottomer and Mr Seers. The early commencement of her maternity leave was discussed. Ms Treadwell's evidence is that she was instructed to commence her maternity leave earlier than she had desired. Her evidence is that it was made clear to her that the respondent expected her to commence the leave early. This was expressed as being as a consequence of concerns the respondent had for the baby and her own health. Ms Treadwell's evidence was that she understood she had no choice but to commence her leave earlier than she desired and consequently she commenced the maternity leave early, after having made arrangements to facilitate the payment of her annual leave entitlements to cover herself financially for the additional period. The applicant's evidence as to her state of health at this time was that she was well and was being monitored by her doctor in her later stage of pregnancy on a weekly basis. There is no evidence to suggest that there is anything exceptional about this level of monitoring of the health of a woman in her third trimester of pregnancy. The doctor's certificate that she was fit to remain working was understandable as being related to the period between these weekly visits. In light of these matters it does not appear that the reason given by the respondent for requiring the early commencement of the maternity leave is supported by the evidence.
In January 1997 the respondent's general manager had conducted a review of its efficiency and staffing levels. Various matters as to staffing were raised in this review and the level of staffing in some departments was under scrutiny. At this time there was an assessment made that some positions were no longer required and that redundancy should be considered. In this correspondence the applicant's temporary position was identified and two positions in the Customer Service area were also identified as having been vacant and to remain so. The evidence of Mr Seers was that these positions did not include the applicant's position of Returns Officer, which was an additional 'vacancy'. The evidence is that despite this memorandum, two positions in the Customer Service area became vacant whilst the applicant was on maternity leave and were filled by the hiring of new employees. The applicant's returns work, whilst initially being performed by distribution amongst all other customer service staff, was shortly thereafter allocated to one of the new employees to perform as Returns Officer. The evidence is that this occurred whilst the applicant was on maternity leave, but at the time she had indicated a desire to the respondent to return to work early. These appointments took place certainly a very short time before the applicant's employment was terminated in June for redundancy. The evidence as to the exact dates the new employees commenced is vague and uncertain, none of the respondent's witnesses being able to assist the court by providing the details of commencement dates from their recollection, and no payroll records being tendered in evidence.
Ms Treadwell's baby was born in February 1997 and shortly after the birth Ms Treadwell attended at the workplace to introduce her child to her colleagues. At this time she observed that new employees had commenced working for the respondent in the reception area and in her previous permanent area, Customer Service. In April 1997 and again in May 1997, Ms Treadwell advised the respondent, by its manager Mr Bottomer, that she desired to return to work earlier than originally advised and asked whether this would be possible. Mr Bottomer had in April indicated that he would consider the request. In May, Mr Bottomer advised that there was no work available and that the applicant would not be able to return early from her maternity leave. During this visit the applicant noticed that new employees had commenced working in the Customer Service area and the reception area. On 2 June1997, a final decision was confirmed by Mr Seers that that the applicant, together with two other full time and some part time employees would be made redundant. The applicant was advised of this decision on 20 June 1997 at the respondent's premises. The employment terminated immediately with the applicant being paid notice and an amount on account of a redundancy payment. There seems to have been some discrepancy, later corrected, as to the amount of payment made, but I do not consider this matter of significance in these proceedings.
The question which the court is required to decide is whether the applicant's sex, pregnancy, family responsibilities or absence on maternity leave was the reason or was included as any part of the reason for the termination of the applicant's employment. Section 170 CK(2)(f) and (h) of the Act provides:
Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
...
(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(g) ...
(h) absence from work during maternity leave or other parental leave.
Section 170CQ of the Act provides:
In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:
(a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b) it is a defence to the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies).
Section 170CK(2)(f) of the Act is in similar terms to the former s170DF(1)(f). Section 170CQ operates to require the respondent to bear the onus of proving that the reason for termination did not include a matter proscribed by the section. In determining the issue arising from the subsection it is necessary for the court to have regard to the subjective motive of the decision maker. The test is a subjective one and it is the reason of the persons making the decision to terminate the employment which is of relevance in these proceedings; in this case Mr Seers and Mr Bottomer. It is for the respondent to establish on balance that the termination of the employment was not for the reason of or partly for the reason of the applicant's sex, pregnancy, family responsibilities or absence on maternity leave. It is clear that a denial of such reason is not always sufficient for the respondent to meet that onus and the court will assess the question by having regard to the entirety of the circumstances surrounding the termination of the employment. See in this regard Johns v Gunns Ltd (1995) 60 IR 258.
In Johns v Gunns there was extensive consideration of the operation of the onus provisions attaching to S170DF of the Industrial Relations Act 1988. Whilst the provision is expressed in slightly different terms, I am satisfied that the approach taken in Johns v Gunns to the interpretation of the onus provision in s170EDA, is relevant for the purposes of a consideration of the operation of s170CQ and s170CK of the Act and that is the approach I have adopted. It is appropriate to extract a large part of that decision. At pages 267 to 268 his Honour Justice Northrop said:
Section 170DF(1), however, does impose a prohibition on an employer terminating an employee for specified reasons or for reasons including one of the specified reasons. The relevant reason here is that contained in s 170DE(1)(a). On the facts of the present case, there is no doubt that the absences from work of Mr Johns arising from his injuries arising in the source of his employment are temporary absences from work because of injury, see reg 30D and in particular reg 30D(2).
The phraseology used in the operative parts of ss 170DC, 170DE and 170DEF is unusual. The words "an employer must not ..." normally impose a duty on an employer not to do the prohibited act with the result that a breach constitutes a criminal offence. This is not the case here; see s 170EG. The phraseology continues with the word "unless". The use of this word suggests that the words following the "unless" impose an obligation or duty on the employer in the nature of a condition precedent to be complied with by the employer before the employer terminates the employment of an employee. The obligation or duty is not a true condition precedent since non-compliance does not make the termination illegal, unlawful or non-effective. The non-compliance is described in the Act as a contravention of a provision of Div 3 of Pt VIA of the Act; see s 170EE which will be considered later in these reasons. This section is based on the assumption that the termination of the employment is effective and that remedies may be granted for the contravention found on the basis that the termination is effective.
The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. Parliament has, from time to time, devised procedures to transfer to an employer the onus of proving the reason for termination of employment. Thus s 5 of the Conciliation and Arbitration Act 1904 (Cth) made it a criminal offence for an employer to dismiss an employee by reason of specified circumstances. Section 5(4) provided that in proceedings for an offence, if all the relevant facts and circumstances, other than the reason "set out in the charge as being the reason ... of the ... (dismissal) ... are proved, it lies upon the person charged to prove that ... (the dismissal) ... was not activated by that reason ... ".
In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, those provisions and earlier authorities relating to them were discussed at length and in particular at 266-271. I set out a passage appearing at 268 which has equal application to cases where s 170DF(1)(a) of the Act applies:
"The provisions of s 5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge."