The reasons for the retrenchment
117 I made findings earlier regarding the circumstances of the termination of the applicant's employment. This section of the reasons is directed to the question of whether that termination was for a proscribed reason.
118 Mr Edginton was the decision-maker, but he relied on advice and information provided by Dr Hancock in particular. He made the decision that the applicant's position was redundant on 11 June 2010.
119 After Dr Hancock received the applicant's email of 19 May, she began to consider whether SYC needed anyone to perform the role of Manager, Marketing and Events. Dr Hancock concluded that it did not: a number of the aspects of the applicant's work had been outsourced, other aspects were being performed by Ms Colebeck and Ms Fuss; she herself had taken on the development of SYC's marketing strategy, management of the marketing team, management of marketing and events more broadly, the writing of grant applications and the management of the SYC brand; and there would be a cost saving for SYC of approximately $65,000.
120 Dr Hancock discussed her conclusion with Mr Edginton at a meeting on 8 June 2010. Mr Edginton considered that Dr Hancock's conclusion was sound for the reasons which she gave. However, he asked Dr Hancock to have Ms Gillies review the reasoning and the soundness of the conclusion.
121 Dr Hancock met Ms Gillies a day or so later for that purpose. Ms Gillies took her role seriously and, in fact, regarded herself as a decision-maker in relation to the redundancy. That was because SYC policy required a redundancy decision to be approved by the People and Culture team. Ms Gillies considered that Dr Hancock's rationale and reasoning was "an appropriate business decision". However, her evidence indicated that a primary focus in the review was the lawfulness of the proposed termination. I accept Ms Gillies' evidence that Dr Hancock did not include as part of her rationale matters relating to the applicant's pregnancy or maternity leave and that she herself did not rely on those matters in giving her approval.
122 Dr Hancock reported the results of Ms Gillies' review to Mr Edginton on 11 June 2010. Mr Edginton then, on the basis of Dr Hancock's advice, made the decision that the applicant's role should be made redundant. He directed Dr Hancock to speak to the People and Culture team in relation to the implementation of the redundancy, and he did not play any part in that implementation.
123 The cross-examination of Mr Edginton and Dr Hancock focussed on the depth and detail of the analysis of Dr Hancock which had led to the redundancy decision. In my opinion, several of the criticisms of the redundancy decision which are based on that cross-examination are justified.
124 Despite the importance which each of Mr Edginton and Dr Hancock said they gave to the cost savings to be achieved by the applicant's redundancy, SYC did not carry out any detailed analysis of those savings. There was not, for example, a close comparison of the cost to SYC of the outsourcing of the functions previously carried out by the applicant, or of the savings which might be achieved if the applicant resumed the performance of those functions on a return to work. SYC did not carry out an analysis of the functions performed by Mr Franklin, the contractor, to identify which of those could be performed at a cheaper cost by the applicant as an employee.
125 Mr Edginton's evidence-in-chief (contained in his affidavit) was that cost savings had been a factor in his redundancy decision. However, when taxed with the absence of enquiry as to these matters, he said that it had not been relevant and that the cost savings were an "outcome" of the decision rather than having been a factor in its making. I regarded this particular evidence of Mr Edginton as unconvincing.
126 Other criticisms are that neither of the reviews by Dr Hancock or Ms Gillies was reduced to writing. Dr Hancock acknowledged that she had not reduced her cost savings analysis to writing. In her evidence, Dr Hancock was unable to indicate even approximately the amount of the budget for the Communication and Strategy Department which was being expended on contractors.
127 Dr Hancock said that she had calculated the proportions of the applicant's duties which had been distributed to others as follows: about 38% to Ms Colebeck, 7% to Ms Fuss, 30% to herself, and 25% outsourced. However, she could not explain how she had reached the two very precise figures of 38% and 7%. Dr Hancock also gave some inconsistent evidence on the topic of whether Mr Franklin, who had been engaged as a contractor to carry out a review of SYC's marketing functions, had carried out part of the applicant's duties. Mr Franklin had finished one contract on an unspecified date in June 2010 but commenced as an employee of SYC (Senior Marketing Officer) on 9 August 2010, just over six weeks after the termination of the applicant's employment was confirmed.
128 There were other aspects of Dr Hancock's evidence about the cost savings which were unsatisfactory. Her evidence-in-chief was that the savings to SYC from making the applicant redundant were $65,000. In round terms, this seemed to be the applicant's salary and some of the superannuation contribution. However, Dr Hancock said that this was not the manner in which she had calculated that saving. Instead, the sum of $65,000 comprised a portion of the applicant's salary, in addition to the various employment on-costs, the figures for which she had obtained from Mr Matthews, SYC's CFO. Her evidence that she had, as part of the process, spoken to Mr Matthews emerged for the first time in the cross-examination. Dr Hancock was unable to say how she had arrived at the figure of $65,000 on this basis. I did not consider that Dr Hancock's explanation of the calculation of the saving of $65,000 was convincing and am not prepared to accept it. I consider it more likely that Dr Hancock had simply taken the applicant's salary and the superannuation contribution as the cost saving, on the basis that if the applicant returned there would be additional expenditure. I am not willing to conclude that Dr Hancock had assessed the cost savings which may result from a reduced outsourcing of functions if the applicant did return.
129 I consider that the applicant's submission to the effect that SYC's analysis was superficial is justified. In particular, I conclude that Dr Hancock's recommendation to Mr Edginton was a somewhat superficial assessment of the circumstances. In my opinion, Dr Hancock was satisfied with the way in which the Communication and Strategy Department was working during the applicant's absence on maternity leave. As indicated, that had been achieved by various members within the department absorbing the applicant's duties and others being outsourced. When the applicant indicated on 19 May 2010 her plans for her return to work, Dr Hancock took the view that, given the existing arrangements, there was no, or insufficient, work for the applicant to perform as she did not wish to disturb the existing arrangements. On that basis, she made the recommendation to Mr Edginton that the applicant's role was redundant and that a cost saving to SYC of the order of $65,000 could be achieved. Mr Edginton accepted Dr Hancock's reasoning without requiring more detail. I consider that his attitude at the time was informed by the appreciation which he had developed during the time of the restructure in late 2009 that the applicant's role would no longer be required and that SYC did not need her level of expertise. Because he had that appreciation, Dr Hancock's recommendation was not surprising to him. This may be the explanation for his omission to require a more rigorous and detailed rationale from Dr Hancock.
130 However, to conclude that SYC's analysis was superficial is not to conclude that it was wrong or that it masked an underlying "targeting" of the applicant for dismissal for a proscribed reason.
131 I accept Mr Edginton's evidence that his decision that the applicant's position was redundant was not based on her pregnancy, gender or family responsibilities. It was, as he said, because of SYC's change in focus from marketing and events to more directed communications, because the applicant's duties had been easily absorbed by other employees, and because of the cost savings which would result. I also accept the evidence of Dr Hancock and Ms Gillies to like effect.
132 The applicant's criticisms of the decision-making process require the reasons proffered by Mr Edginton, Dr Hancock and Ms Gillies to be scrutinised carefully. Having given their evidence that scrutiny, I accept the evidence of each that the applicant's pregnancy, maternity leave and family responsibilities did not, in a relevant sense, play any part in the decision. I have said "in a relevant sense" because I do consider that it was the applicant's absence on maternity leave which allowed the alternative arrangements to be tested and to be found satisfactory. It can be said, therefore, that that absence created the circumstance in which SYC concluded that it did not need the applicant's services. However, for the reasons which follow, this does not amount to discrimination for a proscribed reason.
133 The question to be considered is whether SYC, in contravention of s 7 of the SD Act, treated the applicant less favourably by reason of her pregnancy, maternity leave or family responsibilities than it would an employee who was not pregnant, had not taken maternity leave or who did not have family responsibilities. As noted earlier, this requires a comparison between the applicant's treatment, on the one hand, and a hypothetical person in the applicant's position but without her relevant characteristics, on the other. The comparitor in this case is a hypothetical manager of similar seniority and experience to that of the applicant who took approximately four months' leave with SYC's consent, and who had an equivalent entitlement to return to work. I referred earlier in this respect to Thomson v Orica Australia Pty Ltd [2002] FCA 939 at [121]-[122]; (2002) 116 IR 186 at 216-7 and Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702 at [42]; (2008) 173 IR 378 at 392.
134 It is also appropriate to refer to the decision of the High Court in Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. The issue in that case was whether a school had discriminated against a student because of his disability in contravention of s 22(1) of the Disability Discrimination Act 1992 (Cth) (the DD Act) by suspending, and later excluding, the student from school on the ground of his violent behaviour resulting from a severe injury suffered as a baby. Section 5(1) of the DD Act defined "discrimination" in terms similar to those contained in ss 5, 7 and 7A of the SD Act. The majority concluded that the comparison contemplated by s 5(1) of the DD Act required consideration of all the objective features surrounding the person. In the circumstances in Purvis, that included the student's violent behaviour (Gummow, Hayne and Heydon JJ at [223]-[225], 160-1). This required comparison of the treatment of the student with that of another student who behaved violently, but for reasons unassociated with a disability. Callinan J, while giving additional reasons, agreed with the reasoning of Gummow, Hayne and Heydon JJ (at [273], 175). In separate reasons, Gleeson CJ held at [11], 101:
The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. … The fallacy in the appellant's argument lies in the contention that, because the pupil's violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conducted persisted, expelled, in less time than the pupil in this case.
(Emphasis added)
135 The application of this reasoning in the present case requires, in relation to s 7, that the reason for the applicant's absence on leave and, in the case of s 7A, the reason for the applicant's desire to have flexible working arrangements, be ignored. That means, as I have said, that the relevant comparison is with a hypothetical employee of comparable status and experience to that of the applicant who is absent from work for about four months on leave (and with an entitlement to return to work) and, in the case of s 7A, with an entitlement to flexible working arrangements. The applicant accepted that this hypothetical person was the appropriate comparitor.
136 On that basis, the applicant does not, in my opinion, establish discrimination of the proscribed kind. There is no basis upon which it can be concluded that the applicant was treated less favourably because her leave was related to her maternity or because of her family responsibilities. SYC's restructure of its marketing department was for reasons entirely unrelated to the applicant's pregnancy. The restructure and the change in marketing focus which underpinned it resulted in SYC having only a reduced need for the applicant's skills. Based on its experience during the applicant's absence, SYC decided that it could manage satisfactorily without her employment.
137 It remains to refer to the applicant's submission based on a "but for" analysis, that is, that but for the applicant having taken maternity leave her roles would not have been absorbed by others, and on that basis the requisite causal relationship was established. For the reasons already given, an analysis along these lines does not establish discrimination of the proscribed kind.
138 Accordingly, I consider that the contraventions of the SD Act claimed by the applicant fail and that that part of her application must be dismissed.