STEWART v NICKLES

16 The Response. In paragraph 5 of a Defence filed 2 April 1999 the respondents say that · for about four years prior to 1994 the first respondent employed the applicant as a casual motor cycle instructor on a rate which by 1994 was $25 per hour · on or around February 1994 the applicant and the first respondent agreed that the applicant would

• substantially increase her hours of work with the first respondent
  • continue to be engaged on a casual basis at the rate of $25 per hour
  • work hours which were not fixed and for payment only of those hours worked as an instructor · when the second respondent incorporated, the applicant continued on with the second respondent on the existing terms of engagement · on or about late 1994 the title of chief motor cycle instructor was created by the second respondent and the applicant became chief instructor and was paid at the same hourly rate as the other instructors although she was able to "take priority in jobs". 17 In paragraph 6 of the Defence the respondents · deny any agreement that the applicant would "throughout the employment" be chief instructor and assert that the title did not exist until many months after the incorporation of the second respondent · deny any agreement for the applicant to work "full time from Monday to Friday, both inclusive with occasional weekend work" · deny agreement that the applicant would receive in addition to an agreed wage or salary an additional amount equal to one per cent of the second respondent's net annual profit · deny any agreement that the applicant would be appointed as director of the second respondent company prior to commencing as an employee and would continue as a director of the second respondent and assert that immediately prior to the incorporation of the second respondent the applicant agreed to become a director of the second respondent · deny any agreement that the applicant would, prior to commencing her duties with the respondents, resign her employment as a medical scientist with Victorian Cytology Services and her employment as a motorcycle instructor with VicRoads and assert that the respondents were aware the applicant intended to resign her position as a scientist in order to increase her hours with the respondents. 18 In paragraphs 7 to 9 and in paragraphs 11, 12, 14, and 16 to 19 of the Defence the respondents · deny any breach of any relationship of trust and confidence · deny a reasonable period of notice was 12 months · deny any breach of contract arising from the replacement of the applicant as chief instructor but admit the applicant was on or about 4 June 1996 asked to relinquish the title of chief instructor · deny any breach of contract said to arise from the allegation that the applicant's hours of work were significantly altered so that she worked mostly on weekends and did not work fulltime and/or regularly from Monday to Friday · deny any breach of contract said to arise from the alleged refusal of the respondents to allow the applicant to perform her duties as a director and from allegedly forcing the applicant to resign as a director · deny loss and damage said to arise from alleged breaches of contract · deny a harsh, unjust or unreasonable termination of employment within the meaning of s170CE(1)(a) of the Act and assert that the Court has no jurisdiction in respect of such an alleged termination · deny that the applicant's employment was terminated by the respondents and terminated by the respondents for reasons including the reason of the applicant's sex, a proscribed reason within the terms of s170CK(2)(f) and assert that Particulars 22(a) to (f) of the Amended Statement of Claim "bear no temporal connection to the termination of the applicant" and that paragraph 22(g) "is no more than normal counselling and bears no relationship to the allegation of termination of the applicant" · deny any breach of s170CM (the notice of termination provision) and assert that the applicant was not employed by the first respondent at the time of the alleged termination and that neither respondent terminated the applicant and the applicant resigned from her employment.

19 The final meeting between the applicant and the first respondent on 13 July 1998. It is clear that the employment relationship between the applicant, Moira Stewart, and the second respondent, Nikles Nominees, came to an end on 13 July 1998 as a result of a meeting between Ms Stewart and the first respondent, John Nickles. 20 The substance of the applicant's evidence of the meeting is reproduced below. It is not a verbatim report from transcript but a summary of notes of evidence given on 14 April 1999 (the second day of trial). "On the afternoon of 13 July 1998 John Nickles telephoned me at home and said that he wanted to talk to me and asked me when I would be in. I indicated that I would be in the next day and he said he would come round. He came around in the afternoon. We sat at the kitchen table. He said I do not want to be here. I have come to ask for your resignation. I asked him why. He said you have not done your cleaning duties. I told him that he should not talk to me about cleaning duties because I had cleaned up his toilets that weekend. And I said have you got a better reason? He mentioned mistakes in paperwork and I indicated that I was not aware that my mistakes were worse than the others and that they were better than the others. I asked him if he had better reasons. He repeated the allegation from the year before that I was not enjoying the job and that I had been in the job too long. I said that was not the case and that I had told him that last year. I said again have you any good reasons? He said that there had been customer complaints and that the instructors have problems and that it was a lot more than just one or two of the instructors. I asked him why the instructors had not come to talk to me about the perceived difficulties. He said that they had not come because they were too scared and I was too intimidating. I asked him to leave my house. I said I've listened to enough of this bullshit. Get out of my house. On the doorstep he offered me a couple of shifts to keep things ticking over and I said that a couple of shifts were useless and that I wanted a fulltime job. He said that a couple of shifts was all that he was offering and I said you can stick that and go. I also said to him do not say I resigned. You forced me to leave my position. A few days later I got a letter dated 14 July repeating the offer of a couple of shifts a week." 21 The first respondent gave his evidence about the meeting of 13 July 1998 on the fifth day of the hearing (ie 20 April 1999). An extract of his evidence-in-chief appears below. It is not a verbatim report direct from transcript. His counsel's questions are not included and the responses of Mr Nickles are drawn together to form a narrative. The narrative is an accurate record of what the witness said, but it is not a complete record of every response made in examination-in-chief in respect of the meeting on 13 July. "On the Monday (13 July 1998) I went to Moira's place. I felt that something had to be done. I felt that any counselling that I've attempted in the past had been a complete waste of time. There was a lot of animosity amongst the staff in general and I felt that it was time that I did something. Moira let me in. In the kitchen I said, you probably know why I am here, and she said, I've no idea, why? I said, well basically we've got to do something about your position in the firm. You know that I'm not happy with it. We've had these troubles many times before and it's time that we came to some sort of resolution. I said to her that I may have to cut back her hours or may even accept her resignation. She said, may I ask why? as if she was completely surprised by the whole thing. I said, well surely I don't need to tell you again. Its the same old troubles. Lateness, animosity amongst the staff, complaints from certain students and I mentioned - last of all, I mentioned cleaning up the coffee area. She stood up and raised her voice and said something to the effect of, I clean up just as well as everybody else..... There may have been something else there, but I can't quite remember what it was, but it was followed quickly by her saying that I had obviously made my mind up, and (she) told me to get out. We were at the kitchen table then when she told me to get out. .... I said something to the effect that she should calm down, let's talk about this, not get too excited. I said that perhaps she needed a break, and she said she just had (had) a break. We moved towards the door. Then she opened the door. I was halfway out the door and I said to her, look, can't we just sit down and talk about this? We shouldn't end it like this. If you could just be happy with a few shifts and have a break, maybe we can work it out. She said you can stick your job up your bum, at which time I realised that .... it was over - the interview. So I left. I walked across the road to where my van was parked facing Nepean Highway. She yelled out, and don't bother telling everybody that I've quit or resigned. She might have said that. I'm not sure. No - yes, she said, don't bother telling them that I've resigned. As far as I'm concerned you fired me. I've been fired. That was it. She slammed the door. I got in the van and left." 22 Mr Nickles gave evidence of the letter he sent to the applicant dated 14 July 1998. The letter (Exhibit A7) reads as follows: "Dear Moira, Please find enclosed your pay for fortnight ending 11/7/98. I must say I was disappointed in your reaction yesterday, however it is clear that you were genuinely surprised by my suggestion of you resigning or at least cutting back on shifts. After the trouble we have had in the past. I thought you would be expecting that. Never-the-less I am mindful of the long and I and believe valuable association we have had and sincerely wish that you do not ignore it completely. Therefore my offer of a couple of shifts a week to keep things "ticking over" for you still stands. If I haven't heard from you in a week to the affirmative, I shall presume the negative. Yours sincerely, John Nickles, Proprietor." 23 In examination-in-chief Mr Nickles was asked his reason for sending the letter. He responded: "I wanted to try to make-up. When I say make-up, I wanted to try to at least calm the waters so that we could have some sort of mutual agreement. There was no response to this letter. I gave it one more try. That was when I rang her home to try and speak with her. Bruce answered the phone. I said, Is Moira home? and he said, Yes, she's right beside me, and I said, Can I speak with her? He said, Yes, there was a brief pause, and he said She doesn't want to talk with you. That was it." 24 In cross-examination on 26 April (sixth day of the trial) in respect of the meeting on 13 July Mr Nickles · admitted that he prefaced his conversation with Ms Stewart by indicating that he did not want to be there and didn't want to be there because "basically I was going to drag her across the coals" · said that the applicant may have to resign "if we can't resolve this" and "we had to talk about her future, that she may need to cut down on her shifts or in fact she may prefer to resign" · described options as "either Moira have a long hard look at what she is doing and improve her performance - I did want her to cut down on her shifts anyway - or she might resign, if we couldn't find any common ground" · denied that he requested the applicant to resign and responded "no, I suggested that she may have to" · admitted that the employment separation certificate which he signed on 3 August 1998 indicated that the applicant had not ceased work voluntarily and gave "mistakes with paperwork" as a reason for termination · described the reason of "mistakes with paperwork" as "not really (the reason) - it was one of the reasons. I just scribbled that down" · responded as to his reasoning in indicating on the employment separation certificate that the applicant had not ceased work voluntarily, that "this was actually the opinion of my solicitor" - "it was his advice"..."we both agreed that it was the expedient thing to do for Moira's sake" · repeated that mistakes with paperwork was one reason he gave to the applicant on 13 July · said of the question of reasons given on 13 July "God knows there was enough reason ... there was other reasons, ... it was not as if I was going to find it difficult to find reasons" · described the tea and coffee and cleaning as the "final reason - one of the more petty reasons ... it was the last thing I mentioned, she may have mentioned about the toilets, I don't know, but it was the last reason I gave because that was the last one she would even listen to. After that, she flew into a rage - wouldn't listen to any more even if I did have more to say. The conversation was terminated as far as she was concerned at that point · admitted that "it was true" that the applicant concluded the discussion "at the door" when he suggested to her that other instructors found her intimidating and he said "she showed me the door after she said "I've heard enough of that bullshit" and she told me to get out" · admitted that in the doorway as he was leaving he offered the applicant a couple of shifts "to keep things ticking over" and that when he was at the van she yelled across the street that he was not to tell anyone that she had resigned. 25 Termination at the initiative of the employer It is clear even on the evidence of Mr Nickles that · Ms Stewart did not resign on 13 July · Mr Nickles, the first respondent, acting on behalf of the Nikles Nominees, the employer and second respondent, terminated the applicant's employment · the termination of employment arose after Mr Nikles failed to persuade the applicant to resign and after the applicant refused to accept the offer of "a couple of shifts a week to keep things ticking over" · the respondents did not give the applicant any notice of termination · no reasons for termination were given to the applicant or expressed as reasons for termination · Mr Nickles sought a resignation and when pressed for reasons stated that he was not happy with the applicant's performance, she had created animosity among other staff, she was the subject of student complaints, she was often late for classes, she had made mistakes in paperwork and he claims that the final reason he gave was that the applicant was not adequately performing the cleaning duties which were allegedly expected of all members of staff. 26 The applicant's evidence is similar in many respects although she states that Mr Nickles · immediately asked for her resignation when they sat down at the kitchen table on 13 July · responded to her requests for reasons by raising first the question of cleaning duties, then mistakes in paperwork, the allegation that the applicant "was not enjoying her job" and "had been in the job too long", customer complaints and finally problems with instructors who were "scared" of the applicant and found her "too intimidating". 27 It is not necessary to address the evidence of Bruce Andrew Ricketts who gave evidence of what he heard of the discussion between Ms Stewart and Mr Nickles on 13 July other than to say that his evidence supported the applicant's version of the discussion, or at least gave support to the applicant's version of that part of the discussion he overheard. 28 I agree with the substance of the submissions made by counsel for the applicant in paragraphs 16 to 18 of the Outline of Submissions that · "the action of the employer (was) the principal contributing factor which (led) to the termination of the employment relationship": Mohazab -v- Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205 · "the action of the first respondent as a director of the second respondent at the home of the applicant on 13 July 1998, at worst summarily dismissing her, or at best acting in such a manner so as to bring the employment relationship to an end, was a termination at the initiative of the employer" · ".... the act of the (respondents) (resulted) directly or consequentially in the termination of the employment and the employment relationship (was) not left voluntarily by the employee": Rheinberger -v- Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160. 29 I find that the first respondent, acting on behalf of the second respondent, terminated the employment of the applicant on the 13 July, did not give notice of termination, did not give reasons for termination, did not expressly state that he was dismissing the applicant but, when pressed by the applicant, gave several reasons why he sought her resignation. 30 The contract of employment. The Court accepts the substance of the following submissions made by counsel for the respondent in his final address and finds accordingly · uncertainty surrounded the terms and conditions of the applicant's employment · Ms Stewart and Mr Nickles both gave evidence of how they perceived the employment situation and as to their respective expectations · this evidence from the two primary participants was not clear evidence of terms and conditions of employment but evidence of what each wanted from the contract · the uncertainty as to the employment situation was exacerbated by uncertainty associated with the developing, changing and indefinite accreditation requirements of Vicroads · Ms Stewart was never on a fixed salary and was never guaranteed minimum hours or a minimum salary · Ms Stewart was paid at an hourly rate · overall hours per week depended on student demand · hours worked per week did increase in 1994 to about 23 hours per week and remained at that level until July 1998 · there was no agreement as asserted in paragraph 4.1 of the Statement of Claim that the applicant would be chief motorcycle instructor "throughout the employment" although there was clear agreement that the applicant was to be chief instructor. · the organisational change which led to the loss of the title and position of chief instructor may have involved a loss of status for Ms Stewart but it did not involve a loss in remuneration or a loss in hours of work · contrary to the assertion in paragraph 4.2 of the Statement of Claim there was never an agreement that the applicant "would work fulltime from Monday to Friday, both inclusive, with occasional weekend work" · the applicant never worked fulltime during the course of the employment and it is "inconceivable" that the parties, in late 1993 or early 1994, ever agreed that throughout an uncertain and unlimited period of employment the applicant would be provided with "fulltime work Monday to Friday" and throughout such an uncertain and unlimited period of employment would be required only to undertake "occasional weekend work" · the respondent as employer had a right to vary rosters to reflect staff and student demand, to meet organisational requirements and to operate a viable business · the arrangement whereby the applicant was offered one percent of the second respondent's net (or gross) annual profit (in the event of profit) was short-lived and was not part of the terms and conditions of the contract of employment · any offer, as referred to in paragraph 4.4 of the Statement of Claim, that "the applicant would be appointed as and continue as a director of the second respondent company", whether made prior to or after Ms Stewart began as an employee, was not a term and condition of the contract of employment · the respondents concede that Mr Nickles knew that Ms Stewart was working as a medical scientist at Victorian Cytology Services and would have to leave that employment to work for the first respondent and/or second respondent · the respondents concede that the fact that the applicant left her employment with Victorian Cytology Services is relevant to her claim in respect of reasonable notice although the respondents do not concede an implied term of reasonable notice · the respondents do not concede that the leaving of the Victorian Cytology Services employment was an express or implied term of the contract of employment with the first and/or the second respondent · the respondents do not concede and expressly deny that the applicant's departure from her work as a motorcycle instructor with Vicroads was in any way associated with the contract of employment with the respondents · there is evidence that the applicant had ceased her employment with Vicroads before there were any discussions as to employment with the respondents. 31 Reasonable Notice. Counsel for the respondents has argued that no term of reasonable notice can be implied by law or conduct. His argument is as follows. Division 2 of Part XV of the Workplace Relations Act 1996 deals with the extension of existing Commonwealth provisions and specifically s492 states: "without affecting its operation apart from this section, Division 3 of Part VIA also has effect in relation to the termination of employment, at the initiative of the employer, of any employee in Victoria." 32 Counsel for the respondent argues that · s492 calls in aid s170CM · s170CM(1) provides that an employer must not terminate an employee's employment unless the employee has been given the period of notice worked out using the table at the end of s170CM(2) · the applicant has a statutory right to notice as provided in s170CM(2) · the situation is "analogous" to that existing in Jager v Australian National Hotels Pty Ltd, Supreme Court of Tasmania, Slicer J (unreported) (1998) TASSC 54 (12 May 1998) where His Honour applied Byrne v Australian Airlines Ltd (1995) 69 ALJR 797 and found against a term of reasonable notice implied by law but also found that s47 of the Industrial Relations Act 1984 (Tasmania) did not preclude the existence of an implied term arising from conduct · unlike Jager the conduct of the parties militated against an implied term of reasonable notice where the applicant was on an hourly rate and had been de-rostered on one occasion for a week for disciplinary purposes. 33 In my view Jager does not assist the respondents. I am not satisfied that His Honour's ruling on s47 of the Tasmanian Industrial Relations Act is applicable in a case in which s170CM of the Workplace Relations Act applies and provides not for a reasonable period of notice but "a required period of notice". Indeed, the notice in s170CM is described in Macken, The Law of Employment, 4th Ed. at 164 as "a minimum period of notice prescribed by legislation" with support enlisted from Grout -v Gunnedah Shire Council (No 2) (1995) 1 IRCR 499 at 513. Furthermore, Macken distinguishes s170CM from ss46 and 47 of the Tasmanian Act which "confer a right on the employer to terminate a contract of employment by giving notice in accordance with those sections"; see Holt v Musketts Timber Sales Pty Ltd (1994) 54 IR 323 at 329." However, even if Jager is applicable, I would find as in Jager, that the conduct of the parties implied a term of reasonable notice. 34 In terms of reasonable notice both counsel rely on Macken's "List of Factors" set out in the 4th edition at 166 and 167 and including the duration of hiring, industry practice, level of appointment, importance of position, salary, length of service, professional standing, age, qualifications, experience, job mobility, expected time to obtain alternative employment, prospective pension or other rights and what the employee gave up to come to the present employer. 35 Of course, as the learned author observes, many cases, including Grout -v- Gunnedah Shire Council (No 2) (1994) 1 IRCR 499 at 513 and Brookton Holdings No. V Pty Ltd -v- Kara Kar Holdings Pty Ltd (1994) 57 IR 288 at 290, confirm that the "list of factors" are no more helpful than "the conventional aphorism that each case in this area will depend on its own facts". 36 Counsel for the applicant has submitted that reasonable notice in this case should be "at the upper end" and at 9 to 12 months salary, which she calculates at $21,375 to $28,500. This length of notice is argued as warranted by the following: · the high grade of appointment; chief instructor of one of four successful tenderers from a pool of forty who sought the tender · length of service, four and a half years · the professional standing of the employee, which was significantly high in the industry and was enhanced by her membership of ARTA, WIMA, The State Government Consultative Committee and by magazine and newspaper profiles · low degree of job mobility · the likelihood that employment would have continued more or less indefinitely apart from the dismissal · the fact that the applicant gave up a secure longstanding job as a medical scientist to work with the respondents. 37 I agree that · evidence tendered supported a position of high professional standing enjoyed by the applicant in motorcycle circles · the applicant appears to have given up a secure position as a medical scientist, although that was her choice and she knew that she was commencing and continuing in a position which was paid at an hourly rate and was a position where hours worked never rose above an average of 23 hours a week · the applicant had four and a half years service with the respondents 38 I do not agree that · the position of chief instructor in such an organisation as that conducted by the respondents was a particularly high level appointment, although it was an important position of some responsibility · this type of position at an hourly rate of $25 for about 23 hours per week in a volatile industry dependent on student demand could be classified as necessarily "long term" or in any circumstances as of unlimited or indefinite duration · mobility as a senior instructor or even as a chief instructor is necessarily low although the circumstances in which the applicant left the employment of the second respondent could mean that long term employment as a chief or senior instructor is difficult to obtain. 39 In my view, a reasonable period of notice in the circumstances of the position and the industry and the nature of the work is three months. On the applicant's figures that would mean $7,125 and assumes an average of 23.75 hours a week at $25 an hour. I will allow $7,125 for failure to provide reasonable notice. 40 Unlawful termination - termination for a prohibited reason. In final submissions Counsel for the applicant asserts that the "reasons given on 13 July 1998" or "the reasons adverted to in particulars sub-joined to paragraph 15 of the Defence were not the reason or reasons for the termination". While the respondents deny termination and therefore deny that there were "reasons for termination" I have found that the second respondent, through the first respondent, terminated the employment of the applicant on 13 July. 41 The reasons for the requested resignation which I have found to constitute a termination at the initiative of the employer were given on 13 July by Mr Nickles under some pressure or demand from Ms Stewart. Both Mr Nickles and Ms Stewart agree that the reasons stated by Mr Nickles at that time included staff animosity, student or customer complaints, mistakes in paperwork, lack of punctuality and inadequate performance of cleaning duties. They differ on the order of the reasons extracted by Ms Stewart from Mr Nickles and Ms Stewart refers to other comments which might have been stated as reasons for a requested resignation like "not enjoying the work", "being in the job too long", "being intimidating to other instructors". Nevertheless, the two primary witnesses agree on the bulk of the reasons given by Mr Nickles under pressure from Ms Stewart. 42 The reasons described by Counsel for the applicant as "adverted to in particulars sub-joined to paragraph 15 of the Defence" can, from those particulars, only be identified as "performance and ... employment issues". To the extent that these issues as described are "reasons for termination", they are identifiable in the first two sentences of the particulars sub-joined to paragraph 15 of the Defence which read as follows: "The first respondent on behalf of the second respondent had counselled the applicant a number of times about her performance and supplied her with copies of Corrective Action Requests. On 13 July 1998 the first respondent, on behalf of the second respondent, went to the applicant's home in Murrumbeena and raised with her issues relating to her employment." 43 The thrust of the applicant's case that the respondent breached s170CK and terminated the applicant for reasons including a prohibited reason of sex is outlined in paragraphs 9 to 13 of the applicant's Outline of Submissions. Paragraph 9 begins with an assertion that the reasons given on 13 July and the performance issues in paragraph 15 of the Defence were not the reason or reasons for the termination. Paragraphs 9 to 13 read as follows: "9. The reasons given on 13 July 1998, or the reasons adverted to in particulars sub-joined to paragraph 15 of the Defence, were not the reason or reasons for the termination. Other full time male instructors were not terminated from their employment despite the issues of cleaning, punctuality and mistakes with paperwork being matters common across all instructors. The evidence supports the Applicant was excluded and suffered discrimination on the basis of sex. 10. It was not sufficient in the circumstances of a denial by the Respondents of a termination and in circumstances where the reasons for the termination were not adequately given at termination or in the Defence, for the Applicant to rely on the Respondent proving a negative. The Applicant is entitled under Section 170CQ(a) to seek and prove the reason for termination was a prohibited reason. 11. The legislative intent is that Section 170CK(2) is to be construed as expressly intended in the Act, "giving effect to the" Discrimination Convention. It does so by imposing an onerous onus on the Respondent. It does so by reference to the provisions of the discrimination convention which are relevantly: "Discrimination is: (a) Any distinction, exclusion or preference made on the basis of ... sex ... which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation... 2. This policy should be applied by means of legislative measures... and should have regard to the following: (a) The promotion of equality of opportunity and treatment in employment and occupation. (b) All persons, should without discrimination enjoy equality of opportunity and treatment in respect of: ... (iv) security of tenure. ... (d) Employers should not practise or countenance discrimination in engaging or training any person for employment, in advancing or retaining such person in employment or in fixing terms and conditions of employment..." 12. To give effect to the Discrimination Convention is to examine the facts and circumstances to assess whether the employer has terminated employment for one or for reasons including one or more of the prohibited reasons. 13. The evidentiary burden on the employer has not been met in light of the examination, which has been conducted in accordance with the legislative intention. On the balance of probabilities, on the evidence, the Respondents terminated the Applicant's employment for reasons which included sex." 44 The substance of the submission above appears to be as follows: · the evidence demonstrates that the respondents discriminated against the applicant during the course of her employment on the grounds of her sex and treated her adversely compared to her male colleagues · the applicant has (in effect by analysis of the evidence) demonstrated, on the balance of probabilities, that the respondents discriminated against the applicant during the course of her employment on the grounds of her sex and treated her adversely compared to her male colleagues · discrimination against the applicant during the course of her employment, demonstrated and established, the applicant asserts, from an examination and analysis of the facts, means of itself that the respondents have failed to discharge the onus of proving, on the balance of probability, that the reasons for the termination of the applicant did not include sex. 45 I do not accept the inference I think has been made in the submission by counsel for the applicant that the establishment of any discrimination by the respondents against the applicant inevitably leads to a conclusion that the respondents cannot discharge the reverse onus and cannot demonstrate that the reasons for termination did not include a prohibited reason of sex. 46 If the applicant's submissions do contain such an inference, I reject it. It does not automatically follow that discrimination, established against an employer as imposed on an employee during the course of the employee's employment, inevitably means that the reasons for a termination of employment include a prohibited reason. However, if an employee established on the probabilities that there was discrimination imposed on the employee by the employer during the course of the employment it may well mean that the very difficult reverse onus is even more difficult for an employer to discharge. 47 The applicant, in paragraph 10 of the Outline of Submissions, seems to have taken upon herself what counsel describes as an "(entitlement) .... under s170CQ(a) to seek and prove the reason for termination was a prohibited reason". 48 If there is an inference in the Outline that the applicant has proved termination for a reason including a prohibited reason I reject that inference also and I do not accept that the applicant has established termination for or including a prohibited reason. 49 However, that is not the test. The onus is on the respondents. It is what Northrop J described in Johns v Gunns Ltd (1995) 60 IR 258 at 268 as an "onus to establish a negative". 50 The evidence of discrimination against the applicant in the course of her employment is pretty thin. The fact that Mr Nickles referred in disparaging terms to "little girls" in a discussion with the applicant about the use of motor scooters may be evidence of a discriminatory attitude in general but it is not evidence in itself of discrimination against the applicant. 51 Counsel for the applicant drew an analogy between "less favourable treatment" as evidence of racial discrimination and "less favourable treatment" as evidence of discrimination on the grounds of sex (Macken, p615). 52 In the Western Australian case of Alone -v- State Housing Commission (1992) EOC 92-393 at 78, 798-80, the Tribunal noted when considering the concept of less favourable treatment it was unusual for there to be direct evidence of racial discrimination as "of its very nature that is ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial ... the Tribunal of fact should decide whether to accept the evidence of a particular fact not by considering the evidence directly relating to that fact in isolation but in light of the whole of the evidence and can draw an inference from a combination of facts, none of which viewed alone would support that inference ... It is important to appreciate, however, that discrimination cannot be inferred when more probable and innocent explanations are open on the evidence." 53 Again the test is not one of inferring more probable and innocent explanations or of displacing an inference drawn from a combination of facts although I would accept that an employer may defeat an inference of dismissal on grounds including sex and discharge the reverse onus by demonstrating more probable and innocent explanations open on the evidence. 54 At trial an enormous amount of time was spent in examination, cross-examination and re-examination of evidence of · Corrective Action Reports and other documents which were asserted to constitute discriminatory behaviour against the applicant on the grounds of her sex · various analyses of rosters, lessons with female students, the ratio of allocation of such lessons between the applicant and male colleagues, similar ratio of allocation of private lessons, advanced rider training, on-road lessons and the application of the scooter policy, all asserted as affirming or negating discriminatory behaviour against the applicant on the grounds of her sex. 55 There is no evidence of a reluctance on the part of the respondents to employ women. 56 On 13 April the applicant obtained leave to amend paragraph 22(c) of the Amended Statement of Claim. Initially the applicant had claimed that she was required to perform more private lessons than her male colleagues and that her rate of pay was consequently lower than that of her male colleagues. The applicant abandons that claim in favour of a claim that the applicant was required to perform more private lessons with female students than her male colleagues and that more private lessons were allocated to male instructors as a percentage of total private lessons. 57 Counsel for the respondents asserts that the amended paragraph 22(c) has no connection with the discussion on 13 July and, although he does not admit termination by the employer, he also asserts that if the Court finds termination at the initiative of the employer, the private lessons performed by the applicant with female students and the proportion of private lessons allocated to male instructors has no connection with the ending of the employment. He also asserts that the allocation of private lessons is in no way evidence of discrimination against the applicant on the grounds of sex and that even if it were, the lack of connection to the dismissal means that it can never form evidence in support of termination on the prohibited ground of sex. 58 I agree with all but the last of those assertions. There is nothing in the evidence in respect of allocation to the applicant of private lessons with female students or the overall allocation of private lessons to her and male instructors which, in my view, constitutes evidence of discrimination against the applicant on the grounds of sex or on any other ground. If I had found that the overall allocation of private lessons and/or the allocation of female students to the applicant for private lessons, constituted discrimination against the applicant, then I would concede that such discrimination, if found to exist, might constitute positive evidence of termination on a prohibited ground if connected to the termination and might create a climate in which it would be more difficult for the respondents to discharge the reverse onus. However, this is irrelevant in circumstances in which I am unsatisfied that the evidence on allocation of private lessons constituted evidence of discrimination of any kind. 59 Equally, I am unsatisfied that evidence tendered in respect of advanced rider training, on-road lessons or the application of the scooter policy constituted discriminatory behaviour against the applicant. I am unsatisfied that the evidence in relation to most of the Corrective Action Reports constituted discrimination against the applicant. Indeed, it seems to me that on most occasions a similar form of reporting and supervision and correction and counselling, if it could be described as counselling, was applied to all instructors, male and female. Having said that, there is evidence which is suggestive of possible discrimination against the applicant in relation to two Corrective Action Reports which were tendered as part of Exhibit A9. 60 Assessment of these reports of 22 June 1998 (medical clearance Steven Kennedy) and 18 November 1997 (medical clearance Melinda Black) and of the evidence given in relation to them, brings me to the conclusion that the applicant acted reasonably on both occasions and that the Corrective Action Reports both constituted a degree of unfair treatment towards her and unfair treatment towards her which may have been on the grounds of sex. It is possible that this is evidence of discrimination against the applicant which was based on some other ground other than a prohibited ground, eg. discrimination against her because she was perceived as difficult or willing to stand up for herself and to express and demand what she considered to be her due in relation to weekend work and other matters. However, if the respondents were guilty of discrimination against the applicant because she was perceived as in some ways difficult, it is hard to see that such perception of "difficulty" can be separated from the fact that the applicant was a woman and may well have been perceived as "difficult" because she was a woman. 61 Provisions similar to s170CK have long existed in employment law. In Australia s5 of the Conciliation and Arbitration Act (1904) (Cth) made it a criminal offence for an employer to dismiss an employee by reason of specified circumstances. In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266 - 271 Northrop J discussed at length those provisions and earlier authorities relating to them. He set out a passage which he held later (in Johns at 267) had equal application in cases where the predecessor of s170CK(2)(a) applied. In Heidt at 268 he said: "The provisions of s.5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge." 62 In Johns at 268 Northrop J also commented on s170EDA, the predecessor of s170CQ, and on s170DF, the predecessor of s170CK, as follows: "Under subsection 170EDA(2), where that subsection is to be applied, the termination is taken to have contravened subsection 170DF(1) unless the employer proves: "(c) the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or" It is because of this provision that the passage quoted from Heidt is of such importance. On the facts of this case, on the assumption that subsection 170EDA(2) applies, it would not be sufficient for the respondent to establish the reasons for dismissal as set out in the affidavit of the respondent and that they constituted valid reasons for termination under subsection 170DE(1). The respondent has to establish a negative namely that the reasons for dismissal did not include the reason that Mr Johns was temporarily absent from work because of injury. A mere denial may not be sufficient. All the facts and circumstances of the case have to be considered." 63 Section 170CQ provides: "In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence 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 subsection 170CK(3) or (4) applies)." 64 The general state of the evidence and the circumstances surrounding the termination are such in this case that it seems virtually impossible for the respondents to discharge the reverse onus and establish a defence by proving, on a balance of probability, that the termination was for a reason or reasons that do not include the proscribed reason of sex. 65 The respondents have denied termination at the initiative of the employer but that is the termination found to have occurred. It is not to the point to speculate on the reason or reasons for the termination. It seems, on the basis of the evidence, that the final circumstances which led Mr Nickles to take the action he took on 13 July arose from the applicant's general report of a dispute with and a complaint from a student Janine Gates (Exhibit R20). Mr Nickles has endorsed the report as "noted 13/7/1998" and this is the day he effectively terminated the applicant's employment. 66 Despite his claims on 13 July that he wanted the applicant to resign or to accept just a few shifts to keep things ticking over Mr Nickles effectively terminated Ms Stewart's employment on 13 July and confirmed his actions in his letter of 14 July (Exhibit A7). 67 I have long thought that the reverse onus applied by averment provisions as outlined by Dixon J in R v Hush; Ex parte Devanny (1932) 48 CLR 487 and, more particularly, as outlined by Northrop J in respect of dismissal prohibitions in Heidt and in Johns place an almost insuperable burden on respondents in circumstances in which a termination of employment at the initiative of the employer is established but where the employer fails to demonstrate any valid reasons for termination. Where the dismissed employee alleges termination for reasons including a prohibited reason and the employer is able to demonstrate that the dismissal included a valid reason or valid reasons, this may assist the employer when faced with the allegation that the termination also included a prohibited reason. 68 In discharging the reverse onus the employer gains no such assistance if unable to call in aid any valid reason for termination. There are no doubt good public interest policy considerations for the reverse onus, but there will still be cases where an employer does not, and perhaps cannot, demonstrate a valid reason for termination and fails to demonstrate, on a balance of probability, that, whatever the reason or reasons for termination, a prohibited reason was not included, although such a prohibited reason was not in truth included. Be that as it may, the onus lies with the employer and in this case and in these circumstances the employer has not discharged that onus. 69 The application under s170CP(5) for orders in respect of contravention of s170CK(2) (discrimination) and s170CM (notice) is upheld. 70 Claims of breach of contract. I am not prepared to award additional damages over and above damages for breach of the implied term of reasonable notice. I am not prepared to award additional damages for breach of trust. 71 Such damages are sometimes open in a case in which there has been unilateral variation of terms of the contract of employment and where an applicant has accepted repudiation of a contract when dismissed in breach of an implied term of reasonable notice: see Burazin -v- Blacktown City Guardian Pty Ltd (1996) 142 ALR 144. 72 While I have found that the applicant was dismissed in breach of an implied term of reasonable notice I have not found that the respondents have breached any other express or implied terms of the contract and I have not found that the contract contained express or implied terms that the applicant · would be chief motorcycle instructor "throughout the employment" · would work full-time from Monday to Friday, both inclusive, with occasional weekend work · would receive in addition to an agreed wage or salary an additional amount equal to one per cent of the second respondent's net annual profit · would be appointed as and continue as a director of the second respondent company prior to commencing as an employee · would, prior to commencing her duties, resign her employment as a medical scientist with Victorian Cytology Services and her employment as motorcycle instructor with VicRoads. 73 S170CM - Notice of Termination S170CR(4) states: "Subject to subsection (5), if a court to which an application is made under subsection 170CP(2) or (3) is satisfied that an employer has contravened section 170CM in relation to the termination of the employment of an employee, that court may make an order requiring the employer to pay to the employee an amount of damages equal to the amount which, if it had been paid by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section." 74 S170CR(5) states: "If the Commission has made an order under subsection 170CH(4) requiring the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination, an order under subsection (4) of this section must not be made." 75 The employer did not give the period of notice required under s170CM(2). In the case of the applicant the period was three weeks salary, i.e. $1,644. However, I have determined reasonable notice at three months. Assuming an average of 23.7 hours per week worked at $25 per hour I have indicated that I will allow damages in the sum of $7,125 as damages for failure to provide reasonable notice. 76 The orders will include a declaration of breach of s170CM but I will not award additional damages for that breach over and above and in addition to the damages of $7,125 for breach of reasonable notice. 77 Penalty for breach of s170CK. Section 170CR(1) states: "If the Court is satisfied that an employer has contravened section 170CK or 170CN in relation to the termination of employment of an employee, the Court may make one or more of the following orders: (a) an order imposing on the employer a penalty of not more than $10,000; (b) an order requiring the employer to reinstate the employee; (c) subject to subsection (2), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate; (d) any other order that the Court thinks necessary to remedy the effect of such a termination; (e) any other consequential orders. 78 I propose to impose a penalty of $5,000 and that the penalty be paid to the applicant. 79 Compensation for breach of s170CK. From 10 October 1998 the applicant has mitigated her loss by working part-time for an organisation called National Driver Education. This organisation appears to pay wages and salaries through another organisation called the Labour Co-Operative. Payment records indicate that she is paid $22 per hour and often works 16 hours a week over 5 days. I also note that she worked 17 hours in the 5 days of 21 - 25 March 1999, 13 hours over the 5 days 31 January 1999 to 4 February 1999 and 5 hours over the 5 days 17 January 1999 to 21 January 1999. 80 The applicant at the time of the hearing was still working less hours per week and at $3 less an hour than when employed by the second respondent. In addition to the three months pay in lieu of reasonable notice I propose to award compensation which assumes · a minimum of 16 hours per week "available" for work with the present employer in the nine months (39 weeks) from 14 October 1998 to 13 July 1999 · $3 an hour "lost" for the 16 hours a week over the nine months (39 weeks) i.e. $1,872 · 5 hours less on average worked a week at $25 an hour over the 9 months (39 weeks) i.e. $4,875. 81 The order for compensation will not take account of any "loss of income" occurring after 13 July 1999. I consider that it is reasonable to limit compensation for loss of income to 12 months. I also consider that compensation which assesses loss as outlined above is reasonable compensation and I propose to order compensation in the sum of $6,750 ($1,872 + $4,875 = $6,747). ORDERS

1. The Court declares that: (a) On 13 July 1998 the second respondent, Nikles Nominees Pty Ltd., contravened s170CK in relation to the termination of the employment of the applicant, Moira Stewart; (b) On 13 July 1998 the second respondent, Nikles Nominees Pty Ltd, contravened s170CM in relation to the termination of the employment of the applicant, Moira Stewart; (c) On 13 July 1998 the second respondent, Nikles Nominees Pty Ltd, failed to provide the applicant Moira Stewart, with reasonable notice of termination of employment. 2. Pursuant to s170CR(1)(a) the Court orders the imposition of a penalty of $5,000 on the second respondent Nikles Nominees Pty Ltd, for contravention of s170CK. 3. Pursuant to s356(b) the Court orders that the penalty of $5,000 be paid to the applicant Moira Stewart. 4. Pursuant to s170CR(1)(c) the Court orders that the second respondent Nikles Nominees Pty Ltd, pay to the applicant Moira Stewart, compensation in the sum of $6,750 plus interest of $675. 5. For breach of an implied term of reasonable notice the Court orders the second respondent, Nikles Nominees Pty Ltd, pay to the applicant, Moira Stewart, damages in the sum of $7,125 plus interest of $712. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Judicial Registrar RYAN.

Associate: Dated: 1 July 1999 Counsel for the Applicant: MS B WEARNE Solicitor for the Applicant: DAVID STAGG, TONKIN & PLACENCIO Counsel for the Respondent: MR J BAILEY Solicitor for the Respondent: MCCARTHY & ASSOCIATES Date of Hearing: 13, 14, 16, 19, 20, 26, 27 and 30 APRIL 1999 Date of Judgment: 1 JULY 1999