Federal Magistrates Court of Australia|2002-03-08

Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31 (8 March 2002)

DISCRIMINATION - Discrimination on grounds of family responsibilities - Requirement to collect child at 3.00pm - Flexibility in workplace - Change in employment from full time to part time - Dismissal on ground of family responsibilities - Damages - Reinstatement ordered.

EMPLOYMENT - Definition of dismissal for purposes of SDA - Dismissal includes non-consensual transfer from full time to part time employment.

Human Rights and Equal Opportunity Act 1986 (Cth) s.46 PO

Sex Discrimination Act 1984 (Cth) ss. 5(2), 6, 18, 14 2(a), (b), (d), 14(3A).

Advertiser Newspapers v Grivell (1990) 90 IR 211

Brackenridge v Toyota Motor Corporation Australia Limited (1996) 142 ALR 1999.

AINSWORTH GAME TECHNOLOGY PTY LIMITED (ACN 068 516 665)

(1) Declaration that the respondent has committed unlawful discrimination against the applicant by dismissing her on the ground of family responsibilities.

(2) Order that the respondent pay the applicant the sum of $10,000.00 by way of general damages.

(3) Order that the respondent pay to the applicant special damages at the rate of $244.44 per week from 21 February 2001 until the date of judgment herein less $977.76 already paid. The said sum is to be paid to the applicant after deduction of tax in accordance with the group tax tables.

(4) Order that the applicant be reinstated to her former employment pursuant to s.46PO(4)c of the HREOC Act forthwith.

(5) Order that the applicant's employment agreement be varied so that she be permitted to take her lunch break from 2.55p.m. to 3.25p.m. during each working day.

(6) Order that in the absence of any application to me to argue the question of costs within seven days of the date of this judgment that the respondent pay the applicant's costs in accordance with the Federal Magistrates Court Rules and I certify that it was reasonable for the applicant to employ an advocate to appear for her in the proceedings pursuant to Part 21.15 of those Rules.

1. This application is bought by CATHY SONG against her employers AINSWORTH GAMES TECHNOLOGY PTY LIMITED ("AGT") pursuant to s.46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) [HREOC Act] claiming that she was the subject of sexual discrimination contrary to the provisions of ss. 5(2), 6, 14(2)(a), (b), (d) and 14(3A), of the Sex Discrimination Act 1984 (Cth) (the SDA).

2. The applicant also alleges breach of contract by the respondent who, she claims, breached the implied term of her contract of employment not to conduct itself in a manner calculated or likely to destroy the relationship of trust and good faith between the parties.

3. The proceedings were conducted by way of a Statement of Claim filed on 12 December 2001 and a Defence filed on 1 February 2002. At the commencement of the proceedings Mr Gardner who appeared on behalf of the respondent sought to strike out the proceedings for various reasons including, in particular, failure to comply with the provisions of s.46PO(3) of the HREOC Act. I dismissed that application in a judgment which was read onto the transcript on the first day of the hearing.

What facts does the applicant rely on to establish her claim

4. Ms Song relied on three affidavits filed by her on 12 October 2001, 14 December 2001 and 13 February 2002 together with an affidavit of her husband J Gao filed on 7 December 2001. Both Ms Song and Mr Gao gave oral evidence and was cross-examined.

5. The evidence called on behalf of the applicant is that her husband commenced work with AGT on 20 December 1999 as a hardware team leader. At that time AGT were developing a new gaming machine and vacancies became available in the technical laboratory which produced, tested and re-jigged the printed circuit boards ("PCBS") that were an essential part of the machines.

6. At the time Mr Gao took up his employment both he and the applicant were living in Melbourne.

7. Shortly after he started work Mr Gao was approached by Sergio Maiocchi, the engineering manager, with whom he had a general discussion about personal matters. He revealed that his wife was also skilled in work on PCBs and as there was a vacancy available it was suggested that she attend for an interview. She did this on 4 January 2000 where she was given a test to do so some repairs or refixing of a PCB and was offered a job. The terms of her employment were initially contained in a letter of offer dated 4 January 2000 (Ex 1) and later in an employment agreement which bears the same date but which was signed on 6 January by Ms Song.

8. When the applicant came to Sydney she brought with her her son Eric who was at that time of pre school age. She commenced work on 17 January 2000 and around the end of January arranged for Eric to start pre school five days a week from 9.00am to 11.30a.m at the Five Dock Pre-school. The pre-school was approximately a ten minute drive from the workplace. At the time Mr Gao's parents were living with Mr Gao and Ms Song and so the child was taken out of pre-school and left with them. Mr Gao deposed to a conversation with Mr Maiocchi to the effect that one or other of him or Cathy would leave work for a short period to transfer their son in this way and that Mr Maiocchi consented. In actual fact most of the transfer was done by Ms Song because she was less busy than Mr Gao who held a more senior position.

9. At the end of May 2000 Mr Gao's parents returned to China and Eric was placed in St Andrews Kindergarten from 9.00am to 3.00pm for two days a week. On those days one or other of the parents, but usually the applicant, left work at approximately 2.45pm to transfer their son from St Andrews to a friend's home in the same street as they lived. On the other three days Eric was placed in family day care in Five Dock from 11.30am to 5.30pm This required one of the parties to leave work at 11.20am to transfer their son to the carer.

10. Mr Gao deposed to the fact that on occasion when he was in the carpark he saw a Mr Stan Eeles, the general manager, and he told him what he was going to do.

11. This situation continued until the end of October 2000. At that time an apparently simmering dispute between Mr Maiocchi and Mr Gao came to a head and as a result Mr Gao's employment was terminated. The applicant alleges that immediately following the termination of her husband's employment her access to the building and to the computer network were removed. She also stated that after her husband left certain duties which she was carrying out under his supervision were not required of her any more. These duties were of a more skilled nature in which she was being trained by her husband.

12. It is these actions which constitute the applicant's claim of discrimination in relation to her marital status. Between November 2000 and January 2001 the applicant continued to leave work for the purposes of picking up her son although it is not entirely clear whether she did that every day or whether from time to time her husband collected him prior to his returning to Melbourne where he now lives.

13. Around the end of January 2001 Ms Song spoke to Arthur Rotziokos, the project manager, who was in charge of her team in the engineering laboratory and told him that her son was starting kindergarten so that the time she needed to take her break to transfer him moved from 3.00pm to 3.15pm. She claims that he agreed to this proposal, however, on 7 February 2001 she had a conversation with Mr Rotziokos who told her that neither Mr Maiocchi nor Mr Brian Duff, the human resources manager, had agreed to let her pick up Eric between 2.55pm and 3.15pm but if she wanted to do that she may have to change her employment from full time to part time.

14. The applicant took the next day off on sick leave and on 9 February sent an email which was Exhibit "E" to her first affidavit. The email was addressed to Mr Rotziokos but copies were sent to Mr Duff, Mr Eeles and Mr Maiocchi. The email is important and is produced below:

Yesterday afternoon you told me I cannot pick up my son from Kindergarten between 2.55pm to 3.15pm and suggest me to change my employment from full time to part time because of that. I do not want to change it. The reason as following:

(1) I have picked up my son from school since I joined the company. Sergio and Stan knew that and agreed. Even Brian knew that too. I did that for near a year. The only thing I was told is making time up. Why things change now.

(2) According to the employment agreement, my working time is flexible. Every day I spend on picking up my son is 20 minutes; I do take any tea break and make 38 hours a week.

(3) Because AGT has flexible working conditions, I am the employee of AGT. I should have the same conditions. Why the flexible working condition does not apply to me now? Is it fare or someone just wants to create problems for me due to J left?

Solving the problem, how about I take my lunch break around 3.00pm in the future?

15. There then ensued a series of discussions and emails with Mr Duff, the human resources manager. Mr Duff said words to the following effect:

"We will try to help you with your family responsibilities if you want to keep doing it. You have two choices: one is to change from full time to part time; another is to start work at 9.24am and finish at 5.30pm and take lunch from 2.55pm to 3.25pm plus sign a paper and we will review it every three months."

16. There was also a debate between Ms Song and Mr Duff about the meaning of flexible employment. She pointed out to Mr Duff that other employees chose their own time of starting and finishing work.

17. On 12 February 2001 Ms Song responded to Mr Duff's proposal in an email which is Annexure "F" to her affidavit. In that email she also suggested that one reason for what she considered to be the company's unreasonable attitude towards her was the fact that her husband had left.

18. On 13 February 2001 Ms Song went to see Mr Duff and he told her that as she had refused to accept his proposals he was requiring her to work to her contract hours of 9.00am to 5.00pm with half an hour lunch break between 12 noon and 12.30pm When Ms Song asked him why she could not take her lunch break at 3.00pm he told her that this was prohibited by law, but she says at that time he did not provide her with details of where the prohibition came from. Mr Duff then sent her a letter which is annexed to her affidavit marked "H".

19. Ms Song responded by email on 13 February as follows:

"Due to you didn't show me which law said I couldn't take my lunch break in 3.00pm I will continue transfer my child every day, as the arrangement before. According to the contract I signed I will work 38 hours per week."

20. On 14 February Ms Song left the workplace at 3.00pm to transfer her child to childcare and returned to work at 3.15pm Mr Rotziokos then approached her and told her that he had instructions from Mr Duff to send her home and to request that she go and see Mr Duff before she started work the next day.

21. Ms Song felt stressed the took the next two days off and returned to work on 19 February 2001. She went to see Mr Duff in his office and he issued her with a warning concerning her leaving the office in mid afternoon without permission. She refused to sign the warning.

22. Mr Duff at that stage then showed her clause 6.3 of the Metal Engineering & Associated Industries Award 1998. He provided her with a copy of part of clause 6.3 but not the whole of it. The copy which he provided to her is Exhibit "K". On 20 February she again left work and transferred her son and was again told by Mr Rotziokos to go and see Mr Duff the next day. On 21 February 2001 at a meeting with Mr Duff she alleges he said:

"Now your employment has changed from full time to part time starting from today because you refused my assistance with your family responsibilities and kept leaving the building without permission."

"I got permission from Sergio a year ago. How can you change my employment situation without my agreement?"

"This is a final decision, we don't need your agreement."

23. Mr Duff confirmed his instructions to Ms Song on 21 February by letter which is Exhibit "O" to her affidavit.

Further to our letter to you of 13 February, 2001 you continue to breach your contract of employment, in that you have continued to leave the premises during working hours without permission (except for Monday 19 February 2001). Despite being offered alternatives that could assist you with your family responsibilities, you have chosen a course of action that is contrary to proprietary standards operating within this organisation.

Obviously as your actions indicate, you have no intention of complying with your contractual obligations or our letter of 13 February 2001. Therefore I would advise that effective pay week commencing today Wednesday 21 February 2001, your employment will be deemed by the company to be permanent part time, with your hours of work 9.00am to 3.00pm, Monday to Friday inclusive, with half (½) hour lunch break to be taken between 12 noon and 1.00pm thus working twenty-seven and a half hours per week. I must also advise that in implementing such arrangement your salary will be adjusted accordingly."

24. Ms Song did not accept the change in her terms of employment and on 4 April complained to Mr Len Ainsworth, the owner of the company. As a result of this complaint she was paid the difference between her current 27½ hours of pay and her previous 38 hours of pay for a period of four weeks. She also sent an email to Mr Duff asking for her original job back. Ms Song alleges that she never accepted the change in the terms of her employment.

25. It was an important part of Ms Song's case that other employees were allowed flexibility in the hours in which they worked. It would appear that Ms Song was only talking about employees in the laboratory or in the software area. She also stated that employees were allowed up on to the roof to smoke whenever they wished. She said that staff like her were allowed to make their own coffee and take breaks provided they made up the time. Mr Gao also gave evidence about people whose working hours were not the same as those suggested to his wife. One person came in at 7.00am, some people came in later up to 10.00am Mr Gao was adamant that he had spoken to Mr Maiocchi and in particular had said to him words to the effect:

"Next year my child will be going to kindergarten."

What facts does the respondent dispute and how is that done

26. The respondent called a number of witnesses for the purposes of disputing the applicant's evidence. The first witness was Stanley William Eeles. Mr Eeles stated that he is general manager manufacturing of AGT. The thrust of his evidence was to deny that he had any knowledge that there was any arrangement in place for either Jay Gao or Cathy Song to leave the premises on a regular basis to pick up and deposit their child Eric. He also denied the conversation on the roof with Jay Gao in which he was alleged to have told Jay that he picked up his grandchildren. In evidence he stated that his own grandchildren lived near him, approximately 85 kilometres from the factory, although he could not deny that Jay Gao had told him that he was going to pick up his son.

27. The next witness called by the respondents was Arthur Rotziokos who is the compliance IT and project manager of AGT. He explained that he was temporarily responsible as supervisor for the engineering laboratory for about two to three months from October 2000 to February 2001. At that time Ms Song worked in the laboratory. He stated that he was only in charge of scheduling tasks in the laboratory and Sergio Maiocchi otherwise was the manager for all engineering staff.

28. Mr Rotziokos gave a detailed explanation of the circumstances in which the applicant's access to the computers was removed and noted that she did not do any design work which would involve the use of a computer. Even when some access was removed from her she still had access to mail, printers and general company directories as well as email.

29. Mr Rotziokos explained that on Wednesday 7 February he took the applicant aside because he had noticed her leaving the building around 3.00pm each day without permission. He stated the conversation went as follows:

CS: "I pick up my son from school and take him home."

AR: "I have discussed this with Sergio and Brian and you have not got permission to do this. By taking that extra break you are not actually doing your hours for the week."

CS: "I have always done this. I am using my afternoon tea break."

AR: "You cannot leave at 3.00 without permission. If you want to pick up your son, or you have to, these are the options. If you want to leave at 3.00 you can either start work at 9.30 and work through to 5.30 and have lunch at 3.00, or you might want to think about going part time and finishing 3.00. You can also work your normal time and not leave at 3.00. Please think about the options and let Brian or Sergio know what you want to do."

Mr Rotziokos also noted that the company does not have an afternoon tea break.

30. The affidavit goes on to discuss the removal of Ms Song's computer in February and provided an explanation for this. Mr Rotziokos also alleged that Ms Song borrowed other people's cards for the purposes of leaving the premises and said that he checked this through the computer system and confirmed that on at least one occasion this had happened. He also stated that he knew by October 2000 that Cathy was leaving the premises to pick up her son, however, he didn't think she was then leaving regularly. He only raised the matter in February when he could see that she was doing it every day. He said that it was not an issue before that. Under cross-examination he stated that he did not recall the conversation in January 2001 where Ms Song advised him that she would be picking up her son again when school started but later said that he did recall a conversation about that but as he wasn't in charge of personnel he wasn't able to give permission. He believes she had to speak to Mr Maiocchi. Mr Rotziokos pointed out that if Ms Song commenced at 9.00am and worked to 5.00pm and took both her lunch half hour and the time to pick up her son she wouldn't be working a 38 hour week.

31. Mr Rotziokos was asked some questions about flexibility within the workplace and in response to questions from me he clarified his previous answers to the effect that there was flexibility of about half an hour either way in starting times within each department.

32. The third witness called by the respondent was Ms Doriana Schimschal who was the personal assistant to Mr Duff, the human resources manager. She deposed that she was present at the meeting between Ms Song and Mr Duff on 9 February 2001 and confirmed that Mr Duff said words to the following effect:

"You can pick up your child in the afternoon, but it must comply with the award."

She also confirmed that Mr Duff's point about the award was that it stipulated that employees must take a meal break between five and six hours after the commencement of work and that her proposal of starting at 9.00am would be in breach of that condition. He also explained to her that there were questions as to whether or not she would be covered by way of workers compensation. Ms Schimschal confirmed that Mr Duff said words to the effect that he was not obliged to show Ms Song the award. He also recalled Ms Song saying that she had been picking up her child for a year and that everyone else had flexible conditions and she did not understand why she could not have them as well.

33. Ms Schimschal was also present at the meeting on Monday 19 February 2001 when Mr Duff gave the applicant a warning. She gave evidence that Mr Duff said to Ms Song:

"I have advised you several times that you are cover by the Metal Engineering & Associated Industries Award 1998 which stipulates when you must take a lunch break. Other staff are not necessarily under the same award."

34. Ms Schimschal was also in the room on 21 February 2001 when Mr Duff told the applicant that the company had decided to change her employment to part time.

35. Mr Duff gave evidence that he had been employed with AGT since 1 May 2000 and that he had approximately forty years in the human resources/personnel field. He stated that flexible work arrangements have been negotiated from time to time with individual employees. He said the established practice was that any request was put in writing and the proposal goes through the departmental manager to the human resources manager for finalisation.

36. Mr Duff denied that he had ever said to Ms Song that she was not allowed to pick up her child. The dispute with her was that she leaving the premises without permission. He was concerned that by her doing this she was not completing her full 38 hour week. He was also concerned about workers compensation.

37. Mr Duff made enquiries of the other members of staff who advised him that they were not aware of any agreement whereby Ms Song picked up her child at 3.00pm every day. He then arranged for her to see him on 9 February. He says that he wished to be helpful and that was why he suggested the alternatives of starting at 9.24am and going on until 2.55pm and taking a lunch break at that time which would allow her to pick up her child.

38. Mr Duff considered that the applicant was in a different position from other employees in the software/hardware areas because they were not award employees and did not get paid overtime. He took the view that Ms Song was, despite her contract of employment which stated that she was not, an award employee and therefore entitled to overtime payments. This was the reason why he says he insisted that she came in at 9.24am because he stressed (under cross-examination) that she had insisted on leaving at 5.30pm To his mind if she started at 9.00am and took her lunch break at 3.00pm to collect her son and then continued to work from 3.30pm to 5.30pm she would work half an hour more than the necessary hours and would be entitled to overtime for that period.

39. In other respects Mr Duff's evidence was generally in conformity with that given by the other witnesses for the respondent. He pointed out that he was unaware of what had been happening with regard to Ms Song until he was approached by Mr Rotziokos on 7 February. He said that even then he did not know why she was leaving early and that he gave Mr Rotziokos the proposals which Mr Rotziokos put to Ms Song without being aware that she was leaving early for family reasons.

40. Mr Duff firmly took the view that the reason for the change in Ms Song's conditions of employment was not that she had used her lunch break to collect her child but that she had consistently removed herself from the office without permission.

41. Under cross-examination Mr Duff acknowledged that persons who required to smoke during working hours were allowed to do so on the roof or outside the premises for up to 20 minutes at a time. He distinguished between this and what Ms Song was doing by saying that the persons who were on the roof were not absent from the workplace and also said that no check was made to ensure that they made up the time that had been spent smoking.

42. There are other matters upon which Mr Duff gave evidence which will be discussed in more detail later in this judgment.

43. The final witness was Mr Maiocchi. Mr Maiocchi was no longer in the employ of AGT, indeed he was not, he says, ever an employee of theirs but worked through a company of his own.

44. In his affidavit Mr Maiocchi denied the conversation deposed to by Mr Gao about bringing his family up from Melbourne but admitted that he had some part in arranging for Ms Song to be employed at AGT. He denied the conversation set out in paragraph 7 of Mr Gao's affidavit where Mr Gao deposes to saying:

"If you employ Cathy our child has to go to school next year and we will need to transfer him during working time."

He stated that he did not recall a further conversation in January with Mr Gao where Mr Gao deposed to telling him:

"My son is going to school soon and Cathy and I need to transfer him during the working hours every day."

45. Mr Maiocchi acknowledged that he received several of the emails from Ms Song and that he discussed them with Mr Duff. Mr Maiocchi confirmed to me in answer to a question that he did not sit in the same work area as the applicant and so was unable to see when she left the premises.

46. Mr Maiocchi had a relaxed attitude to time keeping. He wanted to be sure only that people came and did the job and were prepared to stay on and do it for as long as it took. He didn't believe there was much of an issue in Ms Song collecting her child provided she made up the time. He confirmed that Mr Duff had told him that there were two problems with Ms Song doing what she wanted to do. The first was insurance and the second was the award. He said:

"I couldn't see a problem with the award - she could come late and take time off later and everybody would be happy."

47. As in many cases in this jurisdiction it is the interpretation of the facts rather than the facts themselves that are mainly in dispute. The issues in this case which require findings of fact are the following:

Was there any agreement with Ms Song and Mr Gao that they could leave the workplace during working hours for the purposes of picking up and depositing their child?

48. The evidence in support of this finding comes from Mr Gao because it was he who alleges that he made the original arrangements with Mr Maiocchi. He stated that those arrangements were known to Mr Eeles. The applicant says that her husband told her about the arrangement and that she then continued it after his dismissal. Mr Maiocchi denies that the first conversation relating to this arrangement took place and does not recall others. Mr Duff said that in his conversation with Mr Maiocchi, Mr Maiocchi denied giving the approval. I saw both witnesses and was impressed by both of them. I did not think either was lying or exaggerating. One of the ways in which I am assisted in coming to a conclusion about what was or was not said is the inherent likelihood of such a thing being said. The conversation to which Mr Gao deposes in paragraph 7 of his affidavit is as follows:

"I said: Cathy can come for an interview in or around

4 January. If you employ Cathy our child has to go to school next year and we will need to transfer him during working time.

49. I asked myself how Mr Gao knew on 4 January what arrangements would be made for his child. He himself had only been in Sydney since October and any previous experience he might have had about the Australian educational system was in Victoria. I find it inherently unlikely that Mr Gao would have said those words at that time and as Mr Maiocchi denied the conversation I am not prepared to find that it took place.

50. However, this is not the end of the matter because Mr Gao deposes in paragraph 10 to a similar conversation which took place around the end of January. Mr Maiocchi does not deny that conversation, he cannot recall it. He did said that "Just go for it" is not part of his vocabulary. By this time Mr Gao had been working with Mr Maiocchi for approximately four months. It was a very busy time. He was undoubtedly aware of Mr Maiocchi's method of working and that Mr Maiocchi (like himself) took very little interest in personnel management. I am not prepared to say that a conversation along those lines may not have taken place but by the same token I would doubt very much whether Mr Gao considered that the arrangement, if one existed, was any more than something between two relatively senior employees working hard on a project. Particularly bearing in mind the unregimented nature of the arrangement (one day Mr Gao, another day Ms Song, one time in the morning, another time in the afternoon), I do not consider that the arrangement was one that would have passed into the terms of a contract of employment between AGT and Ms Song.

Was the arrangement known to any other employees of AGT?

51. I am satisfied from the evidence of Mr Rotziokos that he did not know and I am also satisfied from the evidence of Mr Duff that he was unaware of an arrangement between Mr Gao and Mr Maiocchi prior to being told about it by Ms Song.

Was the removal of Ms Song's computer privileges associated with the dismissal of Mr Gao?

52. The evidence in this matter comes from Ms Song and from Mr Rotziokos. Whilst it is a fact that some access was removed very shortly after Mr Gao left AGT the other instances came several months afterwards. The higher level access which Ms Song was provided with during the time that her husband worked at AGT was provided to her in order that she might undertake the work in which she was being trained by her husband. After her husband left she no longer undertook this work. In his affidavit and his evidence Mr Rotziokos provided what appeared to me to be reasonable explanations for what occurred. In paragraph 6 of his affidavit he states:

"Cathy was certainly not singled out for any reason."

53. Mr Rotziokos was not seriously challenged on these matters and in the absence of any positive evidence from Ms Song I am not prepared to draw the inference which she requires me to draw in order to establish that she was discriminated against by the removal of her computer privileges at any time by reason of her marital status.

54. On close analysis there seems to be very little dispute as to what occurred at the meetings with Mr Duff. It was deposed to by Ms Song, Mr Duff and Ms Schimschal. Mr Duff accused Ms Song of leaving the premises without permission, Ms Song alleged she did have permission and Mr Duff said that he didn't know anything about this and put a proposal to Ms Song to accommodate her need to leave in the afternoon. The areas of dispute relate to the requirement to commence at 9.24am, the requirement to sign a piece of paper and have the position reviewed every three months and the requirement for Ms Song to take a break between the fifth and sixth hour of work.

55. I accept, because it was not seriously challenged and because there was no evidence that either Mr Maiocchi or Mr Rotziokos told him, that until February 2001 the fact of Ms Song leaving the premises was unknown to Mr Duff. I am of the opinion that at the 9 February meeting there was a complete breakdown of communication between Ms Song and Mr Duff for which there may well have been a number of causes. One cause was undoubtedly Ms Song's limited command of the English language. This comes over clearly from a reading of her emails and listening to her in the witness box. Mr Duff should have been very careful in his explanations to her. Secondly, Mr Duff was a firm believer in a hierarchal system of management. He confirmed this to me in an answer to a question. He believed that staff should report first to their superiors and that he should only be brought in to matters at a later time. He did not seem to understand the true position of a human resources manager which is to ensure the smooth running of all departments and the observance by a company of all its statutory obligations. I accept that he tried to accommodate Ms Song but I believe that the way in which he went about it was more likely to cause confusion than to provide a solution. I do not think he explained to Ms Song clearly enough the importance and effect of her being considered an award employee. Ms Song had a written document from the company which clearly said she was not an award employee. It may very well be that she is an award employee but Mr Duff's duty was to explain this to her in a way which she could clearly comprehend. He obviously failed in this task. Likewise, he failed her when she requested a copy of the award and in particular a copy of the section which he claimed required her to take a break between the fifth and sixth hours of work. He first of all refused to provide her with anything and later provided her with an extract from the award which omitted a vital section. He was also incorrect in his interpretation of the award.

56. One fundamental area in which the discussions between Mr Song and Mr Duff were tainted was that Ms Song had been taking a lunch period and also leaving the premises to collect her child. That was not made clear to Mr Duff. He was therefore unable to make it clear to Ms Song that what she wanted to do, start at 9.00am and finish at 5.24pm, was not what he thought she wanted to do. He thought she only wanted one break during the day but she wanted two. In the end that may not be of great importance because Ms Song did offer to work from 9.00am until 2.55pm and then take her lunch break while she picked up her child. This appears in an email from her. Unfortunately Mr Duff got tangled up in his own mind with a 5.24pm finish which he felt could not be permitted because it would require the company to pay her one half hour per day overtime. This is not really what Ms Song intended at all.

57. I am satisfied as a matter of fact that the award would have allowed Ms Song to commence work at 9.00am and to work until 2.55pm without a break. There had to be agreement between Ms Song and the company in order to do this, but as Mr Duff was prepared to make such an agreement with her provided she start at 9.24am I see no reason why he would not, if the position had been clearly understood by all parties, have made similar agreement with her starting at 9.00am

58. I am not satisfied that Ms Song has established on the balance of probabilities (or indeed at all) that anything which occurred or arose out of her interviews with Mr Duff were connected with the termination of her husband. Mr Gao's termination came about as a result of differences between himself and Mr Maiocchi that were explained by Mr Maiocchi in his affidavit and his evidence. Ms Song in her affidavits makes much of alleged antipathy between her husband and Mr Maiocchi but this did not come over in his evidence. Mr Maiocchi appears to have had considerable respect for the abilities of Mr Gao but pointed out certain failings which he perceived. From what I heard in the witness box, which includes the evidence of Mr Gao himself, I would classify the disagreement between the two men as professional rather than personal. I have no reason to believe that this disagreement influenced Mr Duff in any way when he held his discussions with Ms Song in February 2001 and I do not think it is an inference that can be drawn from what occurred in the absence of any evidence which is supportive. Whilst I make this finding I do think it is unfortunate that Mr Duff, as he admitted, took no steps to enquire why Ms Song's computer access was withdrawn. He stated that he did not think this was his responsibility, but in all the circumstances of Ms Song's position it surely was his job as human resources manager to try and get to the bottom of all her complaints.

59. I do not accept Mr Duff's evidence that Ms Song was the proponent of the 5.30pm finishing time. This is matter which only came up in cross examination, was not contained in his affidavit and was not contained in Ms Song's affidavit. There is no reference to it being a suggestion of Ms Song in the affidavit of Ms Schimschal. I think in all probability Ms Song may have suggested finishing at 5.30pm because she wanted to take both lunch and the afternoon break. This was not appreciated by Mr Duff. I am not prepared to find that Ms Song insisted on a 5.30pm finish.

60. One of the reasons put forward by Mr Duff, both to the court and to Ms Song and members of AGT staff for not acceding to Ms Song's request was the problem of insurance. Mr Duff alleged that taking time out in the middle of the afternoon to collect her child might cause problems with the workers compensation insurance. I am satisfied from his responses to cross-examination that Mr Duff now understands that this is not a problem (see s.11 of the Workers Compensation Act (NSW)) although I am not prepared to categorically state that he was aware of this when he had his discussions with Ms Song. However, as a human resources manager of forty years experience he should have been aware of the position and should not have used it as a reason for denying Ms Song the change in working hours sought.

61. In relation to the requirement alleged by Ms Song to "sign a piece of paper and be reviewed every three months" I am satisfied that all that was intended was that which was deposed to by Mr Duff. This was that Ms Song sign a variation of the contract acknowledging the change in hours and that the matter be reviewed in three months time. This is another example of the breakdown in communication to which I have previously referred. I have come to this view because I believe that the explanation put forward by Mr Duff is clear and consistent with what was arranged with Ms Schimschal and what I understand of Mr Duff's methods of management.

Was the action of Mr Duff associated with Ms Song's family responsibilities?

62. Although Mr Duff was firm in his view that the disciplinary action taken by him against Ms Song arose out of her action in leaving the workplace without permission I am satisfied that his decision firstly to impose the original contractual terms upon her and then to require her to work part time only were associated with her requirement to collect Eric from one establishment and place him at another. The was no other reason for her to take the time away from the workplace.

Was the change in Ms Song's contract associated with her marital status?

63. The applicant in her submissions accepts that she cannot prove by direct evidence that the respondent was motivated in its conduct towards her by a particular reason, being her marriage to Mr Gao. I am not prepared to draw the inferences for which the applicant submits. In the fact of denials from the respondents and in the absence of any corroborating evidence I do not believe such an inference is tenable. Furthermore, the actions complained of were those carried out by Mr Duff. There is no evidence that Mr Duff held any animosity towards Mr Gao. The allegations were all aimed at Mr Maiocchi. Mr Maiocchi's evidence seemed to me to indicate that he was so far removed from Mr Duff in his ideas of personnel management that Mr Duff would be unlikely to have acted in this way on the basis of information provided by Mr Maiocchi.

Did Ms Song's rejection of Mr Duff's proposal to start at 9.30 and finish at 5.26 arise out of a misunderstanding?

64. I have found that the meetings between Mr Duff and Ms Song were anything but meetings of minds. The parties were largely at cross-purposes. Each thought its position was reasonable and if they had both understood where the other was coming from an agreement may well have been reached. I put the failure to reach such an agreement down to Mr Duff, who did not take sufficient care to explain complex issues of employment law and practice to Ms Song. He also misled her in relation to the award requirements and did not give her access to the appropriate documents.

65. The strongest claim made by the applicant is that she was dismissed on grounds of family responsibilities in breach of s.14(3)A of the Act. This provides that:

"It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibilities by dismissing the employee."

66. There was a lengthy discussion between myself and Counsel for the parties as to whether this definition required me to find discrimination within s.5(2) of the SDA before moving on to consider whether the employee was dismissed on the ground of the responsibilities. I do not think this is the case. It adds an unnecessary twist and complication to what seemed to me to be very clear words. The effect of paragraph 14(3)A is to add a specific form of discrimination, that is dismissal on the grounds of family responsibilities. The discrimination is proved once a claimant has established:

(b) that that dismissal was on the ground of family responsibilities.

"On the ground of family responsibilities" is of course subject to s.8 of the Act:

"8 A reference in sub-section 5(1), 6(1) or 7(1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 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 the act."

67. The applicant contends that the actions of Mr Duff in requiring the applicant to move from full time work to part time work, constitutes dismissal.

68. The applicant submits that the change in Ms Song's conditions of employment was made unilaterally by the respondent. To the extent that this is a finding of fact I so find. I have no doubt that Ms Song did not consent to being made a part time employee and that her conduct since the decision is consistent with non-acceptance of the position. The fact that she has continued to work as a part time employee whilst at the same time pursuing, inter alia, these proceedings does not detract from that position.

69. The applicant contends that the change in status affected two fundamental terms of any contract of employment. These are hours and pay. It is difficult to argue this with. The applicant then supports her contention that such a unilateral change in fundamental matters constitutes dismissal by referring to Advertiser Newspapers v Grivell (1990) 90 IR 211 at par.s 25, 26, 29, 49 and especially par.s 42 -43, 56, 65 and 73; Westen v Union Des Assurance de Paris (1991) 88 IR 259; Russian v Woolworths (1995) 64 IR 169, Dawson v Northern Rivers Health Service, Cambridge C 22 October 1999 unreported.

70. Advertiser Newspapers a decision of the Full Bench of the Supreme Court of South Australia is generally considered to be the leading case on this matter. At paragraph 32 in the Judgment of the Court:

32 "Another method by which a dismissal in the sense discussed may be effected is by way of repudiation of the contract by the employer. For example, the employer, either without notice or with inadequate notice, terminates the services of the employee by sending the employee away or refusing to continue to employ the employee in the position in which the employee is employed. It may also come about by the employer refusing to comply with a fundamental condition, such as refusing to pay the employee at the same rate or pay the employee at all.

36 In most cases, however, the employee will accept the employer's repudiation because the employee may consider that he or she has little choice... however, whether the contract is at an end or not, on any view there will have been a dismissal or termination of employment by the employer and the Commission may entertain the application."

71. The respondent in its submissions argues that it was the applicant who repudiated the contract by leaving work to collect her child after being ordered not to do so. It argues that the respondent accepted this repudiatory breach which terminates the contract. A new contract then came into existence under which the applicant worked only part time.

72. I do not accept this submission. When Mr Duff imposed upon Ms Song the condition she attended work from 9.00am until 5.00pm and took her lunch for half an hour between 12.00pm and 1.00pm he discriminated against her on the ground of her family responsibilities. Mr Duff treated Ms Song less favourably than he would have treated a person without family responsibilities in circumstances that were not materially different by reason of those family responsibilities. The less favourable treatment was the requirement for Ms Song to work strictly to her employment contract especially the requirement to commence work at 9.00 am, take a break for lunch at 12 noon to 12.30 pm and leave work at 5.00 pm. The treatment a person without family responsibilities would have expected from the evidence was flexibility in starting and finishing time and in the time of taking her meal break. The circumstances that were not materially different were the circumstances of her employment at AGT in the technical laboratory. The treatment was by reason of her family responsibilities because it was done in order to prevent Ms Song from leaving the premises at 2.55 pm in order to undertake her family responsibility of collecting her child. This act of discrimination was unlawful and therefore the applicant's non-observance of it could not lead to a repudiation of her contract of employment. If I am wrong that his action constituted unlawful discriminatory conduct, then I would find that the requirement to work those hours was unreasonable in the circumstances. I say this because the order was the product of a misunderstanding between the parties that I have found was entirely the responsibility of the respondent. That being the case, Ms Song's refusal to accept the order did not constitute a repudiatory breach of the contract entitling the respondent to accept it, terminate and thereafter substitute a different contract.

73. The respondent also submits that I should not follow the Advertiser line of cases in determining that the changing of the applicant's status from a full time to a part time employee was dismissal because dismissal for the purposes of the Sex Discrimination Act requires a total cessation of employment as found by the Full Court of the Industrial Relations Court in Brackenridge v Toyota Motor Corporation Australia Limited (1996) 142 ALR 1999.

74. The decision in Brackenridge was that although the contract between the parties had been terminated by the placing of the applicant on a lower classification her employment had not been terminated because termination was defined by virtue of 170CB of the Industrial Relations Act 1988 as having the same meaning as in the termination of employment Convention ILO 166. The Full Court in Advertiser stated:

71 "The court concluded that the phrase "termination of employment" used in the Convention and therefore as used in the Industrial Relations Act was restricted to the termination of the employment relationship such as to exclude situations of demotion by the employer."

75. Although s.7A of the SDA was imported into the Act by virtue of Convention ILO 156 that is not the same Convention as Convention 166. More importantly, however, there is no provision in the SDA to construe terms in accordance with the construction in the Convention and in those circumstances I am permitted to give a more purposive and wide ranging construction of the word "dismiss", in line with the authorities cited in para 69, which would include changing a person's employment arrangements from full time to part time without her consent.

76. I have found as a matter of law that the actions of the respondents constituted a dismissal of the applicant. I have found as a matter of fact that the reason for the dismissal was her family responsibilities and I therefore find that a breach of s.14(3)A of the Act has occurred.

77. The applicant submits that she was the subject of discriminatory conduct by reason of her marital status and in particular by reason of the fact that she was married to Mr J Gao whose employment with AGT was terminated. I have found as a matter of fact that the termination of Mr Gao did not affect the decisions of the respondent in relation to the applicant's computer access or in relation to her dismissal and therefore as a matter of law I find that the claim under s.6 of the SDA is not made out.

78. Because I have made the finding above that a breach of s.14(3A) has occurred I do not need to consider in detail the arguments brought in support of an allegation of discrimination under s.5(2) of the SDA. I am, however, prepared to say that even if I had found discrimination under s.5(2) prior to the dismissal which triggered the use of s.14(3A), I would also have found that the respondent's proposal requiring the applicant to work between 9.24 am and 5.30pm with a break for lunch at 2.55pm to 3.25pm at which time she could collect and drop off Eric. If this proposal had not been made in an atmosphere of misunderstanding, I think it would have passed the "reasonable test" set out in s.7(B) of the SDA. The only disadvantage Ms Song could point to in relation to the proposal was that she would have twenty minutes or so after she had dropped off her son before she commenced work. But she did not understand the proposal and had not been provided with appropriate information or guidance about it.

79. I have found on the facts that Mr Duff was not aware of any arrangement that had been made between Mr Maiocchi and Mr Gao. I would also find as a matter of law that any such arrangement would not bind the company to the extent of being a consensual variation of Ms Song's contract of employment. This is because it was clear from the evidence of Mr Duff and Mr Eeles that there was a formal process surrounding employment contracts at AGT which would require any long term formal change to be signed off on by at least the human resources manager. It was clear from Mr Duff's evidence that occasional arrangements should properly be made with the head of the section in which an employee worked but this was much more than that. The evidence is that whilst certain people in authority may have known that Mr Gao and later Ms Song took time off from time to time to collect Eric no one person knew that this was meant to be a firm arrangement operating during all school terms. Furthermore, it could be argued that what occurred in January/February 2001 was an attempt by Ms Song to renegotiate whatever arrangements may previously have been agreed to. That renegotiation was properly brought to the attention of the human resources manager as soon as it was realised what the proposal involved.

80. The applicant also put forward a submission that AGT breached the implied term of the contract of employment not to behave in a manner calculated or likely to destroy the relationship of trust and confidence between the parties.

"The conduct of the respondent as set out above is a clear breach of this implied term in that it altered Ms Song's working practices, which had continued for a year at least, in purported reliance on the award and in circumstances where it knew Ms Song would have difficulty in picking up her son and where it knew that the award did not require such a step. It did so in circumstances where it had no operational or legal reason so to do. It did so without notice and without giving Ms Song the opportunity to seek alternative arrangements for meeting her son's needs."

82. The problem with this submission is that it appears to rely on an acceptance by the company of a variation of the contract based upon what had occurred in the previous year. I have found that this arrangement, if it existed at all, was not one that bound the company. I do not think that a case for breach of the implied term has been made out

83. The applicant succeeded because I have found that the respondent's actions in changing the applicant's condition of employment from full time to part time employment constituted a dismissal of the applicant and one of the grounds for that dismissal was the applicant's family responsibilities. The change to part time employment was alleged to be solely to allow the applicant to comply with her family responsibilities. I found that the applicant did not repudiate her contract of employment by refusing to attend at the hours required in Mr Duff's written warning because that requirement was discriminatory and was therefore unlawful. Alternatively, I found that the requirement was unreasonable and based upon a misunderstanding. As such, the non-acceptance of it did not constitute a repudiatory breach entitling the respondent to accept and terminate the employment contract.

84. I have found that the natural and proper meaning of s.14(3)A that if an employee is dismissed by reason of that employee's family responsibilities the employer has ipso facto discriminated against her. I believe I am supported in my view that this is a stand alone provision by reference to s.3 of the SDA where the objects of the Act are set out. The elimination of discrimination involving dismissal of employees on the ground of family responsibilities is a separate object to the elimination of discrimination on the grounds of sex. In those circumstances I cannot see any necessity for an attempt to qualify s.14(3)A by reference to s.5.

85. I have not made any other definitive findings of discrimination under any other sections of the SDA and I have not found a breach of the implied term of the contract of employment.

86. The applicant has claimed $10,000.00 by way of general damages for the hurt and distress caused by the unlawful conduct of the respondent. She also claims by way of special damage the loss of earnings as a result of the reduction of 10.5 hours per week at the rate of $244.44 per week from 21 February 2001 to the date of judgment less four weeks already paid. The applicant also seeks reinstatement to her former full employment with provision for her to pick up her son as necessary. The way in which this final form of relief is expressed in the applicant's submissions appears to allow her to take both a lunch break and in addition a twenty-five minute break to pick up her child so long as she maintains a thirty-eight hour week.

87. Ms Song is still employed in a part time capacity by the respondent. There does not appear to be any other criticism of her work nor are there present any factors which in an industrial law context would militate against an order for reinstatement. I would propose to make such an order. The amount claimed for damages is fair and reasonable in all the circumstances as is the special damage claimed.

(1) Declaration that the respondent has committed unlawful discrimination against the applicant by dismissing her on the ground of family responsibilities.

(2) Order that the respondent pay the applicant the sum of $10,000.00 by way of general damages.

(4) Order that the applicant be reinstated to her former employment pursuant to s.46PO(4)(c) of the HREOC Act forthwith.

(5) Order that the applicant's employment agreement be varied so that she be permitted to take her lunch break from 2.55pm to 3.25.pm during each working day.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Raphael FM

Rights and Equal Opportunity Act 1986

Discrimination Act 1984

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

At a glance

Court

Decision date

Source

Judgment (152 paragraphs)

Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31 (8 March 2002)

Parties

Legislation Cited (2)

Cases Cited (4)