Penwill v National Jet Systems Pty Limited

6 There is a factual dispute between the parties as to what took place later on 29 September 2000 (a Friday) between the applicant and a Ms Samantha Wade, the respondent's General Manager, Flight Attendants. As a result of those events the applicant gave written notice to the respondent of her resignation. I shall consider the evidence and set out my findings on those matters later in these reasons. THE STATUTORY FRAMEWORK 7 Section 170CK(2) and (3) provide as follows: "(2) 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; . . . (3) Subsection (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned." 8 Section 170CD defines "termination" or "termination of employment" as meaning termination of employment at the initiative of the employer. THE ISSUES TO BE DECIDED 9 It was common ground that there were three main issues to be decided, namely: 1. Whether the respondent had terminated the applicant's employment. 2. If so, whether it had done so for the reason of the physical or mental disability of the applicant or for reasons which included that reason. 3. If so, whether that reason was based on the inherent requirements of the particular position concerned and thus fell within the exclusion provided by s 170CK(3).

WAS THE TERMINATION OF THE APPLICANT'S EMPLOYMENT AT THE INITIATIVE OF THE RESPONDENT? 10 The applicant and Ms Wade, who were the principal witnesses called on either side, gave differing accounts about what took place on 29 September 2000, being a series of events culminating in the applicant tendering her resignation. I formed a generally favourable impression of both these witnesses. In my view, any conflict between their evidence was not because either of them was attempting to mislead the Court by lying. Rather, I consider that any such conflict arose through differing recollections. 11 In those circumstances I was helped very considerably by the telephone records which became Exhibits A3 and A4. Exhibit A3 included records of telephone calls made by the applicant on her mobile telephone during the afternoon of 29 September 2000. Exhibit A4 recorded the telephone calls made by Ms Wade from the respondent's offices at Adelaide Airport during the same period. 12 Ms Wade's evidence was that there was only one telephone conversation between her and the applicant. The applicant's evidence was that there were two telephone conversations between them on that afternoon. 13 An examination of Exhibits A3 and A4 shows that the applicant's recollection on this point was correct. There was a telephone conversation at 1.03pm Western Standard Time (WST) i.e. 2.33pm Central Standard Time (CST) which lasted 11 minutes 32 seconds. There was also a subsequent telephone conversation at 3.23pm WST (4.53pm CST) which lasted 4 minutes 33 seconds. 14 My findings of fact about what took place by way of telephone contact between the applicant and Ms Wade on the afternoon of 29 September 2000 are as follows: 1. At 12.23 CST (10.53 WST) Ms Wade left a telephone message on the applicant's mobile telephone messagebank. 2. At 12.35 WST (2.05pm CST) the applicant left a telephone message on Ms Wade's telephone at Adelaide Airport. 3. At 12.36 WST (2.06pm CST) the applicant left another message, this time on Ms Wade's mobile telephone messagebank. [I infer that these calls resulted only in telephone messages from the fact that their durations were, respectively, 50 seconds, 21 seconds and 12 seconds]. 4. At 2.33pm CST (1.03pm WST) Ms Wade telephoned the applicant. They spent, as I have mentioned above, 11 minutes and 32 seconds in conversation. 5. I have examined the respective accounts of the applicant and Ms Wade about what took place during the course of that telephone conversation. I shall set out my findings of fact on those matters. Where my findings differ from the evidence of one or other of those witnesses, it is either because I prefer the evidence of one over the other, or because of my assessment of what is more likely than not, in all the circumstances, to have occurred. During the course of that telephone conversation I find that the following occurred: (i) Ms Wade referred to the applicant's failure to arrive at work on time on 28 and 29 September 2000 (that was common ground between the two witnesses). (ii) Ms Wade also referred to the fact that on 5 July 2000 she had given the applicant a seventh (there had been an earlier warning letter not referred to above) and final formal warning letter about her late arrival at work, including a warning that if there were any further similar incidents that would result in her dismissal. (iii) Ms Wade also told the applicant that she was seriously considering the applicant's employment with the respondent and that she was coming to Perth on the following Monday to review the applicant's employment. (iv) The applicant asked what was meant by the words "review my employment" and Ms Wade told her that it was likely she would sack the applicant. I do not accept the applicant's evidence to the effect that Ms Wade said "I'm sorry but I'll have to sack you". I believe Ms Wade's evidence that her intention was to review the situation with the applicant in Perth and in the absence of any issue being raised by the applicant during that review, to terminate the applicant's employment. That is, unless the applicant could put something to her that would change her mind, Ms Wade was going to dismiss the applicant. I find that Ms Wade made those intentions known to the applicant. (v) The applicant asked what options she had, and Ms Wade responded to the effect that one option would be for the applicant to resign her position. (vi) The applicant responded by saying words to the effect "Yes, I think I will do that. I suppose a resignation would look better than a termination on my CV." I find that the applicant did not tell Ms Wade, at this stage, that she was definitely going to resign, but that she probably would do so. (vii) Ms Wade told the applicant that if she decided to resign she should let her have a written resignation by 5.00pm CST (3.30pm WST) because otherwise she (Ms Wade) would have to book a flight to Perth. (viii) The applicant explained to Ms Wade that the reason she was late for work was due to her sleeping problems and that her sleeping problems had been caused by inhalation of oil fumes in the BAe 146 while at work. (ix) I do not accept that Ms Wade's response was (as the applicant claimed) "… that she knew what I was saying to her and that she understood, but she said the company would not allow her to connect the two things." I think that the likely response by Ms Wade was (as she swore was the case) that she was concerned with the applicant's unpunctuality and failure to notify the respondent that she would be late for work, not with the cause of her sleeping problems, even if those problems involved the cabin air quality in the BAe 146 aircraft. As will be seen later in these reasons, I accept that such failure to notify was a matter of considerable significance to the respondent. The problem was not just unpunctuality. 6. The applicant then attended a union meeting and in the course of that afternoon resolved that she had no option but to resign or be sacked. 7. At 3.23pm WST (4.53pm CST) the applicant left a telephone message on Ms Wade's airport telephone messagebank (the duration was 8 seconds). 8. Ms Wade immediately returned that telephone call - the times are registered at 3.23pm WST (4.53pm CST). During the course of that telephone conversation the applicant informed Ms Wade that she had decided to resign. Ms Wade orally accepted that resignation and requested the applicant to forward her written resignation as soon as possible. In view of the length of the telephone call, I think that it is likely that the applicant and Ms Wade discussed matters such as the applicant working through the period of her four weeks' notice, but I make no finding in that regard, in the absence of any evidence to that effect. 9. Exhibit A3 shows that at the time of this last telephone call the applicant was in the Mt Lawley area, which is not far from Perth Airport. Her oral evidence was that she went to the airport, had to wait for a computer, but then typed the letter of resignation (which is quite short) and sent it by fax at about 5.00pm WST. The facts show, in my opinion, that the actual time was 4.33pm WST. I do not regard that difference as being material, but a question arose at trial about whether the fax was sent at 4.33pm WST or was received in Adelaide at 4.33pm CST. 15 Attachment 'R' to Ms Wade's affidavit was the typewritten letter of resignation from the applicant to Ms Wade. As I have mentioned, that document was sent by fax. It had an endorsement at its foot which read: "29-SEP- 2000 16:33 FROM AIRLINK NJS PER FA TO SAM WADE P.01/01" 16 Ms Wade's evidence was that this was a fax receipt mark indicating that the fax was received by her at 4.33pm CST. In her written statement of evidence (verified on oath) Ms Wade did not actually swear that she received the fax at 4.33pm CST. She said "The fax receipt mark indicates that it was received at 4.33pm (CST)." Immediately before this Ms Wade had said "Approximately 2-3 hours after our discussion I received the applicant's letter of resignation by facsimile on 29 September 2000." 17 In my view, this evidence is consistent with the fax being received by Ms Wade two hours after the longer of the two telephone conversations. I infer, and so find, that the fax was sent at 4.33pm WST (6.03pm CST). I do not think that Ms Wade's evidence about the timing of the receipt of the fax casts any doubt upon her credibility in relation to what took place that afternoon.

my reasoning on the issue of termination 18 In my view, the termination of the applicant's employment was at the initiative of the respondent. I find that Ms Wade's statement to the applicant that it was likely that she would sack her was the principal contributing factor which led to the applicant tendering her resignation, rather than face the likelihood that she would be sacked. 19 In reaching this conclusion I have applied to the facts as found by me the following statement of principle referred to by a Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200 at 205: "… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship." 20 See also the observations of Wilcox CJ in Association of Professional Engineers, Scientists & Managers Australia v David Graphics Pty Limited, (unreported, Industrial Relations Court of Australia , Decision 410/95, 12 July 1995 at p 3), where his Honour said this: "Mr Sparre gave evidence to the Judicial Registrar that, as a matter of pride, he preferred to resign rather than be dismissed. Having regard to that evidence, I think the correct analysis of the position is that he said he would leave, but only because he felt he had no other option. The proper description is that it was a forced resignation. It was a termination of employment at the instance [of] the employer rather than of the employee." 21 And at p 5: "I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions that constituted a termination of the employment." 22 Applying those guidelines to the facts of this matter I am satisfied that it was Ms Wade's comments to the applicant (which I have summarised above, in particular those at par 14.5(i) to (v)) which were the critical actions that constituted the termination of the applicant's employment. The termination of the applicant's employment was at the initiative of the respondent. I have reached this conclusion by assessing the evidence of the applicant and Ms Wade. It was not necessary for me to consider the evidence of Mr Craig Dartnell, a witness called by the applicant. Nor, in those circumstances, was it necessary to rule upon the respondent's various objections to parts of Mr Dartnell's evidence.

did the respondent terminate the applicant's employment for a proscribed reason? 23 Section 170CQ provides as follows: "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 in 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 sub-section 170CK(3) or (4) applies)." 24 The parties agreed some relevant facts on this issue. They were as follows: (a) that at all material times the applicant suffered the following symptoms: (i) Headaches; (ii) Nausea; (iii) Hyperactivity; (iv) Shortness of breath and respiratory problems; (v) Drowsiness; (vi) Dizziness; (vii) Blurred vision; (viii) Sore eyes; (ix) Itchy skin; (x) Muscle weakness; (xi) Anxiety; (xii) Depression; (xiii) Short term memory loss; (xiv) Hyperventilation; (xv) Hyperventilation paraesthesia; (xvi) Chemical Sensitivity; (xvii) Tremors; and (xviii) Coordination problems. (b) That those symptoms constitute a "physical or mental disability" within the meaning of s 170CK(2)(f) of the Act and; (c) That during her employment and at some time prior to 29 September 2000 the applicant advised the respondent through its General Manager, Flight Attendants, Samantha Wade, of the fact that she suffered from symptoms which included the above symptoms. 25 It was common ground that the respondent, relevantly, had the burden of proving, on the balance of probabilities, that the termination of the applicant's employment (which I have held to be at the initiative of the respondent) was not for the reason or for reasons which included the physical or mental disability of the applicant constituted by the symptoms listed above. MY REASONING 26 I accept the respondent's submission that Ms Wade was the relevant person within the respondent's organisation who engaged in the conduct which initiated the termination of the applicant's employment. I accept Ms Wade's evidence that nobody else was involved in her decision to telephone the applicant on 29 September 2000. I find also that nobody else was involved in her decision to suggest to the applicant that one option open to her (the applicant) was to tender her resignation and, when that resignation was received, to accept it. 27 When Ms Wade swore (see p 116 of the transcript) that there was no reason, other than the applicant's lateness for work, for wanting to review the applicant's employment with the respondent, I believed her. I include in the expression "lateness for work" the applicant's failure to contact and report to the respondent's operations centre that circumstances had arisen which would, in all likelihood, result in her inability to report on time for duty on the various occasions in question. I accept Ms Wade's evidence to the effect that this was a part of her concerns in relation to the applicant's unpunctuality - see for example pp 12-13 of her statement which became Exhibit R3. 28 I accept further that it was of considerable significance to the respondent not only that its Flight Attendants be punctual in signing on for duty, but also that they contact the respondent's operations centre as soon as possible whenever circumstances, such as sickness, arose which might result in lateness for work. The uncontradicted evidence was that air safety regulations required there to be a ratio of one Flight Attendant per 36 passengers on the relevant aircraft which was the BAe146. Without the requisite number of Flight Attendants on board the aircraft could not legally take off. Reserve Flight Attendants were not available at the Perth Airport for every shift. The respondent faced potentially serious financial consequences by way of damages for breach of contract if flight schedules were not met. 29 The applicant's evidence was to the effect that on the relevant occasions when she slept in, this was preceded by a lengthy period of hyper‑activity which precluded her from getting to sleep. The result was that she slept through as many as three alarms. An example of such an occurrence is described in pars 72 to 75 of the applicant's witness statement dated 12 November 2001 (Exhibit A1). 30 Under the terms of the applicant's employment agreement dated 30 August 1995 she undertook to comply at all times with manuals issued from time to time by the respondent [see cl 3.1(e)]. 31 Paragraph 2.9.2 of the respondent's Flight Attendant Service Manual obliged a Flight Attendant to: "1) Notify Operations of any sickness immediately so that alternative arrangements can be made to cover your shift". 32 The applicant, in cross-examination (see for example transcript pp 42-43), acknowledged that she was under this obligation to report to the operations centre in such circumstances and later acknowledged that she had not done so on any of the relevant occasions (see p 77 of the transcript). 33 I am not prepared to infer that the applicant's symptoms amounted to such a physical or mental disability as to preclude her on the relevant occasions (by which I mean any occasion on which the applicant slept in and was late for work) from telephoning the respondent's operations centre to notify them that her hyper-activity had caused her to be deprived of sleep to the extent that she would not be able to guarantee punctual attendance the following morning or later that morning. It is difficult to reconcile the applicant's evidence about the events which led to her lateness on 28 September 2000 (i.e. the events of the previous evening), as described in paragraphs 72 to 75 of her initial witness statement, with the narrative apparently given by her to Dr M Somers and set out at the foot of page 2 of Dr Somers' report dated 27 May 2001. I accept the applicant's direct evidence in her statement about the events of that night, but I am not prepared to infer that her symptoms precluded her from picking up the telephone (at, say 2100 hours) and informing the respondent's operations centre that she was unlikely to be able to report on time for work at 4.55 the next morning. I do not regard such a finding as being inconsistent with any of the medical opinions expressed in Dr Somers' report or in the report from Dr A Marsden dated 25 October 2000. 34 Initially I had some doubt whether the above symptoms caused the applicant to sleep through the ringing of her three alarm clocks and thus be late for work. This doubt was based in part on the fact that she responded to the telephone call at 5.05am on 29 September 2000 from the Shift Operator, but mainly on her ability to get to work on time for the vast majority of her flights. 35 The evidence was that the applicant was required to work on calendar monthly rosters totalling 120 hours per month with (normally) ten "designated days off" to be taken normally in groups of not less than two nor more than four days. From this I infer that the applicant and her colleagues were normally required to fly on about 20 days per calendar month. Even if I have over-estimated the frequency of the flights on which the applicant was required to work, and the fact was that she was required to report for, say, fifteen flights per month, and even if one focusses on the ten months period from December 1999, the facts are as follows. The applicant did not allege that her symptoms prevented her from arriving at work on time at all in December 1999 (she stated that the incident in that month was due to her having lost her house keys on returning home on the morning of 26 December 1999), or in the months of January, February, April (the second half of May), June and August 2000. On my calculations of about fifteen flights per month during the 8 months when the applicant was working, she was able to present herself for work on time for about 115 flights out of approximately 120 flights. 36 However, the applicant swore that her abovementioned symptoms caused her to sleep through the alarms and thus be late for work on the relevant occasions, including the two occasions which resulted in the termination of her employment. I accept that she was telling the truth on this point. 37 It was an agreed fact that at some time before 29 September 2000 the applicant had told Ms Wade that she suffered from symptoms which included the abovementioned symptoms. I also accept the applicant's evidence that on or about 1 June 2000 she informed Ms Wade that her symptoms had on three prior occasions caused her to sleep through her alarms. I have already found (see par 14 above) that the applicant made a similar explanation to Ms Wade on 29 September 2000. 38 But mere knowledge of a matter capable of giving rise to a proscribed reason does not preclude an employer from establishing that such a proscribed reason was not either the reason or one of the reasons for the termination of the relevant employment - see the observations of RD Nicholson J in Maritime Union of Australia v Geraldton Port Authority (1999) 94 IR 244 at [296] and the authorities there cited. 39 I note that Moore J has observed in Laz v Downer Group Ltd [2000] FCA 1390 at [28] that, in his view, there is a lacuna in the language of s 170CK. His Honour was dealing, as I understand it, with the link between "for any one or more of the following reasons, or for reasons including any one or more of the following reasons" and the various descriptions of the proscribed reasons. Moore J expressed the view that "…a reason concerning, based on or arising from" (emphasis added) the relevant proscribed reason probably described what was intended by the section. 40 I do not think that there is any difference between Moore J's approach in Laz and that of Lockhart J to a very similar provision in the Sex Discrimination Act 1984 (Cth) in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 321 where his Honour said this: "In my opinion the phrase 'by reason of' in s 5(1) of the Sex Discrimination Act should be interpreted as meaning 'because of', 'due to', 'based on' or words of similar import which bring something about or cause it to occur." 41 The approach which I have taken in the present case is the interpretation adopted by Lockhart J in Mount Isa Mines. 42 I have considered both the objective evidence and the evidence relevant to Ms Wade's subjective state of mind. 43 My impression from the evidence is that the respondent adopted what can fairly be described as a caring attitude and approach towards the applicant. 44 For example, after the incident on 3 April 2000 the respondent granted to the applicant just short of eight weeks of various types of leave. 45 Then on 5 July 2000, Ms Wade suggested that the applicant try working on afternoon rosters in August 2000. The applicant agreed to this, but due to an amendment to the rosters had to work early shifts in the first two weeks of August and afternoon shifts for the balance of that month. 46 I accept Ms Wade's evidence that during the telephone conversation on 5 July 2000 she reminded the applicant that if she (the applicant) found that she was still awake early in the morning and had an early morning shift, she should call the operations centre and inform them that she would not be attending work so as to enable a replacement to be found. 47 I also accept Ms Wade's evidence that at about the end of August 2000 she received a telephone call from the applicant. During that telephone conversation, Ms Wade asked the applicant whether the later starts were making any difference. The applicant told her that the new roster was not really making a difference, that she missed the extra money earned by working on earlier shifts and asked to go back to an even distribution of rostered duties, including early mornings. 48 Mr Howlett submitted that because the applicant's symptoms (which were admittedly a relevant disability) were part of the reason for the applicant's unpunctuality, that provided a sufficient connection for that disability to form one of the reasons for termination. He did not cite any authority for that proposition. 49 In my view, the respondent has put before me sufficient facts to demonstrate that Mr Howlett's proposition is not made out. As I have mentioned above, the applicant's employment was not terminated simply because she was unpunctual on the relevant occasions. The reasons included her failure to notify the operations centre on occasions when she found herself still awake, but tired, either the night before a flight or in the early morning and likely to be late for work. I am satisfied on the evidence that the applicant's admitted disability did not prevent her from doing so on any occasion. I formed the impression when the applicant was in the witness box that she was a person of strong personality and also strong-willed. She needed the extra money which she earned working on early shifts. I inferred that she made a conscious decision not to call into the operations centre on the various occasions when she must have known that there was a risk of sleeping through the alarms from her clocks. 50 I have also had regard to the pattern of the incidents of unpunctuality and the respondent's immediate written responses in the form of increasingly more serious warning letters, culminating in the final warning letter of 5 July 2000. As I have mentioned earlier, I formed the impression that Ms Wade was a truthful witness. I accept Ms Wade's evidence that her reasons for engaging in the conduct which eventually resulted in the termination of the applicant's employment were confined exclusively to the applicant's continuing lack of punctuality and failure to notify of impending lateness. My assessment is that Ms Wade did not regard what I consider to be the applicant's occasional mental or physical disability to report for work as part of the problem. That could have been addressed if the applicant had contacted the operations centre (as she had been asked by Ms Wade to do) on occasions when she found herself still awake late at night or in the early morning. 51 I am satisfied that the respondent has discharged the onus of proving that Ms Wade's reasons (and thus the respondent's reasons) for bringing about the termination of the applicant's employment did not include any physical or mental disability of the applicant. 52 In those circumstances, it is not necessary for me to consider the possible application of 170CK(3) of the Act. CONCLUSION 53 For the foregoing reasons the application will be dismissed. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Carr.

A/g Associate: Dated: January 2002 Counsel for the Applicant: Mr D Howlett

Solicitor for the Applicant: Messrs Gadens Lawyers

Solicitor for the Respondent: Messrs Blake Dawson Waldron

Date of Hearing: 27, 28 & 29 November 2001