Trappel v Industrial Relations Secretary on behalf of the Legal Aid Commission of NSW

Trappel v Industrial Relations Secretary on behalf of the Legal Aid Commission of NSW - [2023] NSWCATAD 304 - NSWCATAD 2022 case summary — Zoe

Relevant Legislation

The relevant provisions of the Act relied upon by the Applicant are as follows: 24 What constitutes discrimination on the ground of sex (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if the perpetrator - (a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex. (1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women. … (2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs- (a) are a woman who is pregnant and a man, or (b) are not of the same marital or domestic status, or … 25 Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of sex - (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of sex - (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. 49S Meaning of "responsibilities as a carer" (1) A reference in this Part to a person's "responsibilities as a carer" is a reference to the person's responsibilities to care for or support - (a) any child or step-child of the person (whether or not under the age of 18 years) who is - (i) wholly or substantially dependent on the person, or (ii) in need of care or support, or … (2) A reference in this Part to a person's responsibilities is a reference to responsibilities - (a) that the person has, or (b) that the person is thought to have (whether or not the person in fact has the responsibilities), or (c) that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the responsibilities), or (d) that the person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the responsibilities). 49T What constitutes discrimination on the ground of a person's responsibilities as a carer (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of the aggrieved person's responsibilities as a carer if the perpetrator -- (a) on the ground of the aggrieved person having responsibilities as a carer, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1)(a), something is done on the ground of a person's responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer. 49V Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of the person's responsibilities as a carer - (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer - (a) in the terms or conditions of employment that the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. … (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's responsibilities as a carer if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her responsibilities as a carer - (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require arrangements that are not required by persons without those responsibilities as a carer and the making of which would impose an unjustifiable hardship on the employer.

[4]

Employment Context

Ms Osborne gave a detailed account of the funding arrangements and operations of Legal Aid so far as they are relevant to the employment of the Applicant. Her evidence provides important context to the employment of, and employment contracts entered into with, the Applicant.
The effect of Ms Osborne's evidence, which we accept, was as follows.
Legal Aid is entirely dependent on state funding and, to a limited degree, Commonwealth Government funding. The funding is either recurrent, used for its core permanent services, or temporary for specific services and programmes, for example, disaster response. The purposes of the funding may include, for example, establishing a new service or programme, piloting a new initiative, or meeting a temporary or unexpected increase in work demands in a particular area.
There is little to no flexibility in how Legal Aid uses its funds. Funding is allocated to three budget components: employee related expenses, legal expenses and other operating expenses. Staffing costs are funded out of employee-related expenses. Money from one component cannot be used to fund expenses from another, and cannot be reallocated to a different component without New South Wales Treasury approval. Additionally, there is a specific cap on labour expenses, which also requires Treasury approval to exceed.
The Civil Law Division employs around 220 employees at any one time. The majority of those employees are lawyers, but the division also employs social workers, financial counsellors, community engagement officers and paralegals. The legal positions within the Civil Law Division include both ongoing and temporary roles. There are no casual employees in the Civil Law Division.
The Government Sector Employment Act 2013 (NSW) applies to Legal Aid. This legislation governs its recruitment selection processes, amongst other things. In order to comply with those obligations, Legal Aid has established what is described as a "talent pool", or talent pools, for common jobs. Allocation to a talent pool is not for a particular role that exists at any one time but instead, a candidate who is successfully placed in a talent pool is eligible to be considered by a hiring manager if, and when, a vacancy does arise. Further, where talent pools are used, hiring managers must consider the compassionate assignment register and Aboriginal targeted pools first before going to the general talent pool. It remains open to the hiring manager to conduct a recruitment round if it is considered appropriate. In order to be put in a talent pool the person must meet capabilities for the role set at a level of grade qualifying the person for a range of different positions.

[5]

Temporary Employment within Legal Aid

Ms Osborne also described the use of temporary contracts by Legal Aid.
The core roles in the Civil Law Division are ongoing positions with permanent funding.
At any given time, a large proportion of permanent Legal Aid employees are on long service leave, including parental leave.
According to Ms Osborne, by way of illustration, in 2020, 58 permanent employees were on long service leave and 118 were on extended leave without pay. Additionally, a large proportion of employees are on parental leave at any given time, given that approximately 78% of the relevant workforce is female.
Ms Osborne testified that Legal Aid uses temporary employment contracts for two primary purposes: 1. roles where funding is non recurrent, for example, for special projects; and 2. to backfill substantive employees where they take extended leave, act up, or are seconded to other areas in circumstances where their permanent position is temporarily vacant.
Employees who are employed on fixed-term temporary contracts accrue, and take, various forms of paid leave during the currency of their contracts. When an employee on such a contract takes extended leave that ends after his or her contract end date, the employee is only given leave until the last date of his or her contract on the basis that the employee is no longer an employee after that point.
An employee employed on a temporary fixed-term contract is not entitled to a guarantee of appointment to a permanent position, or further temporary employment at the conclusion of any one contract.
Legal Aid employees, including those employed on temporary fixed-term contracts, have their terms and conditions of employment regulated by the Crown Employees (Public Service Conditions of Employment) Reviewed Award, a New South Wales award.
Temporary funding is used to create roles designed to perform specific work for a fixed period of time. When that occurs, Legal Aid employs staff on temporary contracts for the likely duration of the work. If the temporary funding is extended, or a carry forward of unspent funds is approved, the temporary contracts may be extended.
When an employee in an ongoing substantive role, namely, permanent employment without a fixed term, takes extended leave, another person can be employed on a temporary basis to "backfill" the position until the permanent employee returns from leave. The funding for the substantive role is used to meet the costs of temporarily employing the person who has backfilled the role. Additional costs are incurred if the substantive occupant is on paid leave.
Ms Osborne testified that based on her experience as Director, and having reviewed the records of Legal Aid, "the drivers" of temporary employment across the organisation, including the Civil Law Division, are temporary funding, parental leave, other extended leave and backfill arrangements. Temporary vacancies also arise where ongoing staff temporarily move into different positions within the division in Legal Aid generally, or the wider public service. Subject to Legal Aid's business rules, it generally encourages permanent employees to try different roles on a temporary basis for professional development, career progression and wellbeing.

[7]

Contracts

Contractual documents in evidence reflecting the Applicant's relevant employment are as follows: (1)(a) On 16 May 2018, the Applicant was offered temporary employment at Legal Aid in accordance with the Government Sector Employment Act 2013 (NSW). The details of the conditions of employment were that the Applicant was classified as Legal Officer III, 3rd Year, working 28 hours (Tuesday to Friday) commencing on 21 May 2018 and ending on 11 September 2018. The offer stated that the Applicant would be assigned to the role numbered CV232 and division CLSAC (Funeral Issues) located at Central Sydney. (b) The offer was accepted by the Applicant on 18 May 2018 with the express condition that she understood that the offer was of temporary employment, did not constitute ongoing employment and that her employment would cease effective from the end date mentioned unless otherwise notified. It was acknowledged by the Applicant that the temporary employment may also be terminated at an earlier date at the discretion of the agency including, for example, where work was no longer available, funds were no longer available, or performance of duties was unsatisfactory, all of which emphasises the temporary nature of the engagement. (2)(a) On 3 September 2018, the Applicant was informed that the Director of Legal Aid had approved an extension of her temporary employment to the role described as CV232 from 3 September 2018 for a period up to 30 June 2019, or up until the substantive occupant returns to the role, whichever is sooner, with the same condition that the offer of temporary employment did not imply long-term appointment of the role and that the employment would cease effective from the finish date unless otherwise notified. (b) The Applicant then approached Legal Aid requesting that the offer be reduced to a letter of offer which was acceded to. On 5 September 2018 a letter of offer was provided to the Applicant with the same classification, hours of work, entry date and end date as described in subparagraph (1) above and for the same role - CV232. The offer also contained the same endorsement that it was temporary employment and did not meet the principles of merit selection and, as a result, the Applicant would not be eligible for permanent assignment through that engagement. (3) On 18 December 2018, the Applicant was offered further employment in the same classification, same role but, in effect, this was only an increase of hours from 28 per week to 35 hours per week. In all other respects the conditions of her employment and role were the same. (4) On 2 July 2019, the Applicant was advised that the Director of Legal Aid had approved a short extension of the temporary employment in the role CV232, the role occupied by the Applicant in accordance with the contract in subparagraph (1) above, extending the term from 24 June 2019 to 26 July 2019. The advice to the Applicant contained the same endorsement that the offer was temporary employment and did not imply long-term appointment to the role, and that her employment would cease effective from 26 July 2019 unless otherwise notified.
Accordingly, the Applicant was employed from 21 May 2018 to 26 July 2019 in the same role (CV232) of performing funeral services. The various contracts entered into from September 2018 to 2 July 2019 did not have the effect of terminating or replacing the earlier contracts but were, in effect, no more than variations to the nominated term and an increase in hours.
As was held in Concut Pty Ltd v Worrell [2000] HCA 64; 75 ALJR 312 at [19] per Gleeson CJ, Gaudron and Gummow JJ: "The relevant principles are well settled. In Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd, Gleeson CJ, Gaudron, McHugh and Hayne JJ said: "When the parties to an existing contract enter into a further contract by which they vary the original contract, then, by hypothesis, they have made two contracts. For one reason or another, it may be material to determine whether the effect of the second contract is to bring an end to the first contract and replace it with the second, or whether the effect is to leave the first contract standing, subject to the alteration. For example, something may turn upon the place, or the time, or the form, of the contract, and it may therefore be necessary to decide whether the original contract subsists." Their Honours went on to refer to the judgment of Taylor J in Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd. Taylor J had rejected submissions that (a) ""it is impossible by a subsequent agreement, merely, to vary or modify an existing contract" and (b) "[an] agreement which purports to vary an existing contract operates … first of all to abrogate entirely the existing contractual relationship and, then, to reinstate the terms of the old contract as varied or modified by the new agreement". His Honour, to the contrary, accepted the propositions that (a) the earlier contract might be rescinded altogether, the determining factor being the intention of the parties disclosed by the later agreement; (b) partial rescission is a variation, not the destruction, of the contractual relationship between the parties; and (c) the earlier contract may be varied by way of (i) partial rescission with or without the substitution of new terms for those rescinded and (ii) the addition of new terms with or without any partial rescission at all. In Tallerman, Kitto J spoke in terms which involved acceptance of propositions (a) and (b) as identified above, adding that whilst "in strict logic" a variation may be a new contract, "the discharge of an old contract is a matter of intention"." (footnotes omitted)
The determining factor is the intention of the parties and whether they intended the variations to discharge the earlier contract. In our view, that is not the case in relation to the funeral services contract and there was but one contract varied in the manner described above. Each variation benefitted the Applicant.
The Applicant's employment with Legal Aid pursuant to that contract ceased effective from 26 July 2019 in accordance with its terms.

[8]

Reasons for Role Ending

Ms Osborne stated that at the time of converting the Applicant's temporary role to full-time in December 2018, the variation described at [32(3)] above, she gave consideration to ongoing funding and servicing of the funeral insurance work. She testified that she realised that having a temporary employee undertake the funeral insurance work was not a long-term or sustainable solution because the role was not funded. At the time she hoped and expected that by the end of the Applicant's contract in or around June 2019, the funeral insurance work would subside.
However, by June 2019 the number of funeral insurance matters managed by CLSAC had remained high and were becoming increasingly complex. It did not appear to Ms Osborne that the need for the work being done by the Applicant was likely to end in the foreseeable future. On that basis, she made the decision to reallocate existing resources and move an ongoing role from elsewhere within Legal Aid into CLSAC. Part of the reason for that decision was that the Division was operating over budget on employee-related expenses which was not a satisfactory situation. Ms Osborne did not know that the Applicant was pregnant when coming to this decision.
In around June 2019, therefore, Ms Osborne reviewed her establishment to see if she could find an ongoing funded role elsewhere in the Civil Law Division and move it to CLSAC to provide the services required. She became aware that Mr John Moratelli, who had intended to retire, was due back to work after taking six months of long service leave after changing his mind about retirement. Mr Moratelli was, she said, an experienced senior solicitor with litigation and consumer expertise from the Parramatta Legal Aid office who had worked with Aboriginal clients.
When Mr Moratelli went on long service leave his workload had been absorbed by the Parramatta Civil Team and they were able to manage. Ms Osborne thought that it was a good opportunity to move his ongoing full-time position to CLSAC. She also knew, she said, that Mr Moratelli had the right senior experience and skills for the funeral insurance work at that time, as Legal Aid had multiple complaints to deal with.
Ms Osborne then decided to move Mr Moratelli's fully funded ongoing role into the CLSAC team so he could conduct the funeral insurance practice. She proposed that change to Mr Moratelli and he was keen to accept, commencing in around July 2019. Ms Osborne testified that Mr Moratelli's role did not disappear. He had the same position number and it was brought across from Parramatta into CLSAC because it was an ongoing permanent funded role. He still held a Grade V Civil Solicitor position in the Civil Law team. The work he had performed was absorbed by the Parramatta team.
As a result, at around late June 2019, Ms Osborne approved a short extension of the Applicant's temporary employment from 24 June 2019 to 26 July 2019, to cover until Mr Moratelli started.
In cross-examination, Ms Osborne said in relation to her decision concerning Mr Moratelli: "I have a global budget and I can move resources around depending on the need … We are very lean and the funeral insurance work was continuing. I didn't have the money, did not have the budget to continue with a temporary role … I had to find a funded resource to continue that work. John was coming back from long service … He was wanting to transition to retirement. He had the skills. He was a senior litigator. The work was at a complex point and it was a really good solution in a very tight budgetary environment."
Ms Osborne also said that she took a resource, a more senior resource, and allocated that resource to an area of high service need in a time-limited function, funeral insurance. The issue for her, she said, was not who had greater experience working with Aboriginal clients. The issue was that she did not have the funding to continue a temporary employee in that role. She had to use an existing resource.
We accept Ms Osborne's evidence as set out above.

[9]

Knowledge of Pregnancy in 2019

There is no dispute that, as pleaded, in or around June 2019 the Applicant advised Ms McCaughan that she was pregnant and asked her to keep that information confidential and further that the Applicant was seeking to secure another temporary contract of employment.
We are satisfied on the evidence before us that when these arrangements were made, the only person at Legal Aid who knew that the Applicant was pregnant was Ms McCaughan. There is no evidence that that information was, at a relevant date, disclosed to anyone else. On the evidence before us, Ms McCaughan played no role in the decisions made by Ms Osborne concerning the arrangements made for the ongoing provision of funeral services in mid-2019.
At paragraph 7A of the Applicant's Points of Claim the Applicant pleads that the role the Applicant was performing at the time, in insurance work, did not end at the expiry of her contract and continued to the date of the pleadings, March 2022. It is then pleaded that the Applicant was advised after she disclosed her pregnancy that a male permanent Grade V employee returning from long service leave had been allocated the role at the expiry of the Applicant's contract in funeral services on 26 July 2019.
At the time of making the confidential disclosure to Ms McCaughan, the Applicant did not make any formal application for parental leave, a prerequisite for an entitlement for such leave and she did not otherwise formally notify Legal Aid of her pregnancy.
To the extent that the Applicant seeks to attribute to Legal Aid the confidential disclosure of her pregnancy made to Ms McCaughan, which appears to be the case, it is clear that Legal Aid, nonetheless, extended the Applicant's contract to 29 July 2019 even with the confidential knowledge of that employee that the Applicant was pregnant. Such knowledge did not deprive the Applicant of an extension of her contract because she was pregnant. Further, as is dealt with below, the Applicant also immediately after 29 July 2019 entered into another contract of employment with Legal Aid. In fact, Ms McCaughan, the person identified by the Applicant as having knowledge of her pregnancy at this time, told the Applicant in June 2019 that she had spoken to the Civil Executive team "and we have found you another role in the Human Rights team".
In our view, it cannot be concluded that the confidential disclosure to Ms McCaughan was in any way relevant to Ms Osborne's decision, or to when the Applicant was advised that Mr Moratelli was to return from long service leave. It is also not accurate to say that Mr Moratelli was allocated the Applicant's role. The Applicant had a short, fixed term role. Mr Moratelli had an ongoing fully funded role which enabled him to be moved within Legal Aid and perform the duties allocated to him.
If, as submitted by the Applicant in closing submissions, Legal Aid was aware of her pregnancy after she disclosed that fact to Ms McCaughan confidentially, Legal Aid, nonetheless, proceeded to offer the Applicant a new contract to be performed whilst pregnant. She was not discriminated against because she was pregnant.

[10]

29 July 2019 to 3 January 2020 - Full Time in Penrith Civil Law Team on Temporary Contract

In July 2019, Ms Martin, the Solicitor in Charge of the Commercial Civil Law Specialist Teams (which included the human rights group) approached Ms Osborne seeking approval to make an offer of temporary employment to the Applicant to backfill a permanent member in the human rights group who was about to commence six months of leave for personal reasons.
Ms Osborne relied on advice from Ms Martin to the effect that she regarded the Applicant as a good lawyer and had been comparatively assessed and was on an active talent pool and that she wanted to offer her a temporary role in the human rights group. Ms Osborne agreed and approved this temporary offer of employment to backfill the permanent employee going on leave.
As a result, on or about 8 July 2019, the Applicant was by email addressed to her offered a temporary employment contract as a Legal Officer Grade I - III within the Civil Law Division position No 12/107 which through this new contract and role in effect extended her temporary employment from 29 July 2019 to 3 January 2020. As the employee in that role who was going on leave was due to return on 4 January 2020, this temporary employment contract was agreed to end on 3 January 2020. The offer was stated to be temporary employment and subject to the condition that it did not imply long‑term employment to the role.
The Applicant said in evidence that she understood at the time that her contract and employment would end on 3 January 2020.
It is clear that the Applicant accepted this offer and became employed in this role. The Applicant was pregnant at this time.
In around November 2019, the Applicant formally disclosed her pregnancy to Legal Aid. At that time, she was entitled to 14 weeks paid maternity leave on the basis that Legal Aid recognised her continuity of service albeit on short term contracts.
After various discussions with her managers, the Applicant approached Ms Osborne and raised a number of requests. According to the Applicant, she told Ms Osborne that she needed a further contract for when her current contract ended in January 2020, first to be allowed to receive paid maternity leave, and then to have a job to return to.
According to the Applicant, during the discussion she said words to the effect that she had previously noticed that there were other women who had been in similar circumstances and Legal Aid subsequently offered them further temporary contracts which allowed them to receive paid maternity leave and have a job to return to. There was no mention of who those persons were or when, precisely, such subsequent offers were made to those persons. The statement was thus of a very general nature.
The Applicant stated to Ms Osborne that she did not know whether other employees who may have been granted such a benefit had been put on nominal temporary consecutive contracts, or whether they were offered contracts when they wanted to return to work after a period of leave. No other detail was provided by the Applicant as to what the roles of the other women were either before their contracts ended, or after the further temporary contract offers referred to were made.
According to the Applicant, Ms Osborne indicated that she did not know about how it worked in those previous cases referred to by the Applicant. She inquired of the Applicant as to how much time she intended to take off to which the Applicant responded that she was not sure, it depended in part on what happens with her contracts and that for her first child, she had taken nine months off work.
Ms Osborne, according to the Applicant, was to speak to the executive team to see if there were going to be any part-time positions that would be available for the Applicant later in the year when the Applicant may be seeking to again work for Legal Aid.
The Applicant in her affidavit of 2 February 2022 stated that after this meeting with Ms Osborne she arranged a meeting with Ms Houang, senior business partner in Civil Law. After the discussion with the previous managers and Ms Osborne, the Applicant said she felt resigned to the fact that Legal Aid would probably not offer her an extension of her contract or another temporary contract after the expiry of her contract on 3 January 2020.
Also, based on her discussions with Ms Osborne, she said she believed that her best chance of securing further employment with Legal Aid was to negotiate a return to work role in the latter half of 2020 and that Legal Aid pay her additional maternity leave which, we note and explain in more detail below, she would otherwise not be entitled to because her employment would cease on 3 January 2020.
Prior to the meeting with Ms Houang, the Applicant sent her an email with a submission summarising her situation and her request. The email was sent to Ms Houang on 22 November 2019. It was stated to be in the form of a "Submission".
The issue identified by the Applicant in the submission was that she was requesting "full paid" maternity leave from 3 January 2020, and "the option" to return to employment in the Civil Law Division (Sydney Region) commencing in September 2020.
We do not set out the entire submission but note that the Applicant further indicated that whilst there were multiple temporary contracts available across the Civil Law Division post 3 January 2020, unfortunately, she was not able to perform any of those contracts as she would need to take at least some period of leave from around 2 February 2020. She further recorded that there were limited ongoing positions available, which in turn meant that these ongoing positions were highly competitive.
The submission concluded with a "recommendation" that the Applicant receive paid maternity leave from 3 January 2020 for a period of 14 weeks and that she be offered "an equivalent level position (or above) commencing in September 2020, the exact position and dates to be agreed to by the parties". It appears from this recommendation that the Applicant intended to work until 3 January 2020 and then be paid out for maternity leave not taken.
The Applicant had, at the time, no entitlement, contractual or otherwise, to any payment for "maternity leave" from 3 January 2020, the date of the expiry of her contract, nor to an offer of a position commencing in September 2020. After 3 January 2020 the Applicant would no longer be employed and would not be on leave. Further, the Applicant was not committing to accept any offer of employment but wanted an option to do so.
Ms Houang responded to the Applicant in an email on 27 November 2019 following a discussion with her on the previous day. She stated in the email that as discussed the previous day, given that the Applicant had 40 continuous weeks service, she was entitled to paid maternity leave of up to 14 weeks. However, as her temporary contract ended on 3 January 2020, she was only entitled to paid maternity leave until this date as she would no longer be employed by Legal Aid after 3 January 2020. There is no contention by the Applicant that this was not an accurate statement as to her entitlement to this form of leave.
The email continued that Ms Houang understood that the Applicant was entitled to commence her maternity leave up to nine weeks before her estimated date of confinement. Given the limited time left until the end of her contract, if she commenced on leave the following Monday, 2 December 2019, she would be paid for five weeks until 3 January 2020. Ms Houang suggested to the Applicant that she complete her maternity leave application form and seek approval as soon as possible so that it could be submitted to payroll that week for processing.
The email continued: "With regards to your return to work options, I understand from our discussion you do not have another contract approved after 3 January 2020. I suggest discussing future job opportunities with Meredith (Ms Osborne) as I do not have the delegation to approve this."
Following Legal Aid's refusal of the recommendation in the submission referred to above, the Applicant then wrote to Legal Aid suggesting a "possible solution" to the effect that her temporary position could be converted to an ongoing position in accordance with r.12 of the Government Sector Employment (General) Rules 2014. Although described as an "application", this is an empowering provision rather than something which grants a right of conversion.
Legal Aid refused this request on the basis that it might consider such an arrangement where there was a need to make a temporary role or function ongoing. However, the role that the Applicant had been undertaking on the short term contract ending on 3 January 2020 was in respect of an employee who was already in an ongoing position and the assigned employee was returning to take that role. Legal Aid indicated that it was its preference to fill other potential ongoing roles through the regular merit-based recruitment process and that the Applicant was free to apply for any such role noting that the Applicant was in several talent pools at the time and might be considered for roles as a consequence.
In response to the Applicant's account of her conversation with Ms Osborne in November 2019, Ms Osborne stated that based on her outlook calendar, she had a meeting with the Applicant on 20 November 2019 and that during that conversation the Applicant requested a further contract effective from January 2020 onwards so that she could receive paid parental leave and would have a position when she was ready to return to work.
Ms Osborne said in her witness statement that she had a conversation with the Applicant as follows: "Jessica: I haven't been able to secure an ongoing role, and the upcoming temporary positions are not an option for me because I am due in February. I want a flexible role held for me until I am ready to return from maternity leave. I also want to know how to maximise my parental leave entitlements. Me: Establishing any new roles at this time is highly unlikely as our Employee Related Expenses are over budget. I am not able to answer your question about calculation of paid parental leave entitlements but you should get advice from our HR Business Partner Pati Houang. Jessica: I have previously noticed that there were other women who have been in similar circumstances and Legal Aid subsequently offered them further temporary contracts which allowed them to receive paid maternity leave and have a job to return to when they are ready. Do you know how this worked? Me: I have no knowledge at all of any previous cases. You should speak to HR for industrial advice. You are a valued employee and you have done a great job. I encourage you to apply for future vacancies. As you are in active talent pools, you can be considered for available positions. There are staff on parental leave who are expected to return later in the year. If they want to work part-time there may be some temporary opportunities. I will let the Civil Executive know that you would like to be considered for upcoming vacancies later in the year and you are also welcome to contact me about any available job opportunities." and in cross examination: "I'm anticipating a lot of staff wanting part time work" and "you are in a talent pool, so you'll definitely be a contender".
Ms Osborne also says in her statement that she did not say "I do not know how it worked in those previous cases" in response to the Applicant's question about other women in similar circumstances because she was not aware of any other such cases. Ms Osborne said she had never heard of any previous cases of Legal Aid extending someone's temporary employment for the purpose of that employee obtaining a greater paid parental leave entitlement or securing a future role. She did, however, refer the Applicant to the human resources business partner within Legal Aid for expert advice. In cross examination Ms Osborne also denied any knowledge of "informal arrangements" of this kind. The Applicant has not established that there were in fact other women who were granted the entitlement to paid maternity leave she was claiming, or an offer of a role at some future point as sought by the Applicant.
Ms Osborne said that what she understood at the time was that the Applicant was proposing that Legal Aid would create a new role offering it to her on a new contract and that the Applicant would then immediately go on leave whilst Legal Aid kept the role vacant or employed someone on a temporary backfill position. She did not consider this proposal to be feasible from a budgetary or operational perspective. It appears to us that the proposal clearly had budgetary implications on either of those options - paying an entitlement to which the person was not entitled, or potentially paying money to that person and to the employee whose position was being backfilled.
It must be appreciated that this discussion took place in the context that the Applicant had ceased working in her funeral services role in July 2019 and that in November 2019 the Applicant was backfilling for a permanent member of staff who was on six months leave and due to return to her permanent role in January 2020.
Ms Osborne stated that the creation of any new roles at Legal Aid must be approved by the CEO. The submission to the CEO must also be reviewed and endorsed by the Director of Human Resources and the Director of Finance, and accompanied by a finance-verified costing showing that funding is available. She did not regard the arrangement the Applicant was suggesting as in the interests of the Civil Law Division, Legal Aid or Legal Aid's clients.
The Applicant shortly thereafter went on paid maternity leave from 6 December 2019 until her contract expired.
The Applicant's contract and employment pursuant to her fixed term temporary employment contract terminated by operation of law on 3 January 2020 and she ceased to be employed by Legal Aid.

[11]

New Role in Civil Law Division Penrith Team

In February 2021, Ms Osborne became aware of a 2 days a week opportunity for the Applicant. She mentioned that to one of her senior hiring managers. An exchange then took place between a senior solicitor for the Penrith office to enquire whether the Applicant wished to take up the part-time role, 2 days per week, which was available in the Penrith Civil Law Team. The Applicant indicated that she had an interest in the role.
On or about 17 February 2021, Legal Aid then sent the Applicant a formal offer of employment via email for part-time work, 14 hours per week in that team. The term of that contract and employment was from 23 February 2021 to 8 January 2022. On 23 February 2021 the Applicant started working the 2 days a week in that team.
In March 2021, the Western Sydney Civil Team met to discuss an increased work load in that area and it was indicated to the Applicant that there may be additional work available for part-time staff.
As a result of these discussions, on or around the start of April 2021 the Applicant commenced working additional hours 1 to 2 days per week in the Penrith Civil Team to assist with flood recovery work. This work was in addition to her 2 days per week, bringing the total work load with Legal Aid at the time to 3 to 4 days per week.
In around May 2021, the senior solicitor, Civil Law, offered the Applicant some additional part-time work, 3 days per week, as a solicitor in the Port Macquarie Civil Team during June and July 2021. The Applicant accepted this and on 3 June 2021 she commenced working part-time, 2 days per week, for the Port Macquarie Civil Team and continued to do so until 30 July 2021.
In July 2021, the Applicant was advised of a temporary contract as a full-time solicitor in the Penrith Civil Law Team from 1 August 2021 to 7 January 2022. The purpose of that role was to backfill for an existing permanent employee who was on leave. The term identified in the offer of 17 February 2021 referred to above thus remained effectively the same.
The formal offer for this role was made on 25 August 2021 and accepted by the Applicant on 2 September 2021.
On 8 September 2021, the Applicant advised Legal Aid that she was pregnant. She emailed her manager enquiring as to whether she would be entitled to paid parental leave and advised that she would like to take a "period of leave beginning 8 October 2021, and would like to return to finish the balance of my contract".
At the time, the Applicant was not entitled to paid maternity leave under the relevant Award. Legal Aid's payroll manager advised the Applicant of this and that she was "eligible to take her own paid leave, REC and Flex prior to the birth of her child".
The Applicant then took personal leave from October 2021. She did not return to work before the end of her contract. Her employment pursuant to the contracts, or variations, described above may have ceased when she left but her contract and employment terminated on 7 or 8 January 2022.
The Applicant did not again apply for employment with Legal Aid until 10 April 2022, when she applied for a position as a Grade IV solicitor in the Penrith team. The Applicant went through an assessment process for that job, was interviewed, but was unsuccessful in obtaining the position but was placed in the talent pool following a comparative assessment.
Shortly thereafter, on 26 May 2022, the Applicant was selected from the talent pool and Legal Aid contacted the Applicant and offered her temporary work in the Blacktown Civil Law Team, from 28 June 2022 to 7 October 2022.
On 27 September 2022, the Applicant was offered, and accepted, an extension of this contract to 30 May 2023.
The Applicant remained in employment with Legal Aid as a temporary employee with a contract due to expire on 30 May 2023, after the hearing of this matter.

[12]

Other Evidence

In the Applicant's evidence there is suggested that a Mr Levin could be a relevant comparator with her. However, the Applicant in cross examination accepted that if Mr Levin was a permanent employee, albeit acting up, the permanency of his employment would be the key difference between him and the Applicant.
In respect of female employees employed by Legal Aid, the Applicant said in oral evidence that she was aware that such employees do, from time to time, take paid and unpaid maternity leave. Those employees, when they did take such leave, were guaranteed a job to return to. The Applicant understood that they could take that leave and come back to work and that the difference between her and those employees was that they are permanent employees and she was employed on a temporary contract. She accepted that the difference was that their contracts extended beyond their maternity leave return dates so that they were able to return to work whereas the Applicant's did not. The reference to "permanent employees" was understood to be employment that was indefinite and ongoing. There is thus, in our view, no proper basis for comparing the Applicant's circumstances with those of permanent female employees.
The Applicant said in her oral evidence that she was not asking Legal Aid to treat her in the same way as it treated permanent employees. She wanted Legal Aid to offer her further employment and pay her maternity leave. The Applicant testified that in order to be paid maternity leave after 3 January 2020 one option was that the contract could be extended for a further 10 weeks but Legal Aid could just have paid her maternity leave. She stated that "Legal Aid could just make an offer to just pay me the maternity leave putting aside contracts or whatever". There was obviously no contractual or other entitlement to payment of this kind.
The Applicant also testified that the proposal that she was putting to Legal Aid, namely, payment of additional maternity leave and a guarantee to return to work were changes that she was seeking in order to obtain a benefit that she was not then entitled to.
In respect of the period that the Applicant would not be available to take up new employment after 3 January 2020 she testified that when she spoke to Ms Osborne in November 2019 she really did not know how long she would "take off". She testified that the September 2020 date she put in her submission she sent to HR (and which we refer to above) was "just a stab in the dark". In the end, she decided that she wanted to come back in and around early 2021. As we point out above, the Applicant was not in November 2019 seeking to enter into a new contract with a known start date but wanted an option to do so if it suited her. The Applicant was thus not available to be employed by Legal Aid again for a period of 12 months after her employment ended on 3 January 2020.
The Applicant stated that her third child was born in October 2021 and she did not return to work after 8 October 2021 in respect of her contract which stipulated an end date of 7 January 2022.
At some stage the Applicant came into possession of a document titled "Scheduled Establishment Report". The Applicant testified that she understood that it was a list of positions that exist within Legal Aid's Civil Team. When cross examined about the document, she was asked whether she was contending that she should have been placed into one of those jobs listed after her contracts terminated. She responded that she was just saying that she was suitable for all of the positions. She was not saying that those are positions that she thought were available for her to be given - she was unsure. She acknowledged that a number of these positions were filled by ongoing full-time employees.
When questioned as to whether the Applicant was contending that any of those jobs related to a short-term, temporary contract for a period in which she was unavailable to work due to her carer's responsibility so that she would not be suitable for the position she responded by saying it "just depends". The Applicant said that she "guessed that if a position was for a really short period of time and Legal Aid could put her name against that contract or whatever so that she was paid maternity leave and then had continued leave and they didn't need to backfill that position for whatever reason or made a decision that they actually did not need someone to do the job that was being advertised".
This evidence by the Applicant highlights the circumstances which would have to prevail and the conditions which would have to be satisfied before there was an ability on the part of the Applicant to take up employment and perform work or simply be paid moneys as maternity leave to which she was not entitled to.
On the evidence before us we find that: 1. The Applicant's temporary employment during the period 21 May 2018 to 26 July 2019 in the identified role in the funeral insurance work managed by CLSAC was not an ongoing funded role or position. 2. Legal Aid regarded having a temporary employee undertake that work was not a long-term or sustainable solution because it was not funded. 3. By June 2019, towards the end of the Applicant's employment in the role performing insurance work, there remained a need for someone to perform the work as the matters handled had remained high and become more complex. 4. Legal Aid had available a senior employee solicitor who was competent and an experienced solicitor on a permanently funded position who could perform the work and wished to do so although he had to transfer from the Parramatta office to achieve that. 5. Legal Aid had a solution to the absence of funding and the ability to have someone perform necessary work through the redeployment of Mr Moratelli. 6. There was no operational or budgetary justification for Legal Aid to continue employing the Applicant to do this work after the end of July 2019. 7. There was no basis established by the Applicant for creating a new role to suit the Applicant and the view formed by Ms Osborne at the time that the arrangements the Applicant was seeking were not in the interests of Legal Aid was justified. We accept that Ms Osborne was the relevant decision maker for what occurred.
Although there are some differences in the evidence given by the Applicant and Legal Aid concerning their conversations in November 2019 we do not think they materially alter the substance of what was sought by the Applicant and what was understood by Ms Osborne as to what was being sought, an understanding consistent with the Applicant's "submission". Ms Osborne denies knowledge of any other person within Legal Aid being afforded the entitlements and offers sought by the Applicant. There was no evidence to establish otherwise. Further, there was no evidence tendered before us which established as a fact that other persons were at any stage offered what the Applicant was seeking from Legal Aid in November 2019 and September/October 2020.

[14]

Unavailable to Perform Service

Had the Applicant been offered employment by Legal Aid to take effect from 4 January 2020, she was not able to perform her contractual obligations. The fundamental ingredient of the employment relationship, the work/wages bargain which assumes that the employee is ready willing and able to work and perform the duties required, was, on her version, to be ignored.
Legal Aid was, it appears, required to "employ" the Applicant from 4 January, presumably by the paying of wages for a period that the Applicant was "on leave". The purpose of this arrangement to start from 4 January 2020 was to create an entitlement to additional paid maternity leave which the Applicant did not have. Legal Aid would have been required to pay the Applicant for "leave" which she was on no view entitled to. The claim was not in truth leave, a concept which permits an employee whilst employed to be absent from work whilst employed either on a paid or unpaid bases. The claim was at the time for payment of 14 weeks wages (or 9 weeks wages) dressed up as leave.
In respect of the claim that the Applicant should have been offered a contract after her contract and employment expired on 7 January 2022 (the Eighth Contract) the position is no different. Following the taking of leave beginning on 8 October 2021, the Applicant did not return to work before the termination of that contract and gave no indication to Legal Aid that she wished to work immediately beyond the expiry of that contract. The Applicant was not ready, willing and able to perform any duties. There was no certainty as to when she wished again to be employed by Legal Aid. There was no obligation on Legal Aid to identify a job or role the Applicant may wish to return to at some future date of the Applicant's choosing, and regardless of whether, at that time, Legal Aid had a need for her services.
The Applicant subsequently applied for other positions in April 2022 when she was placed in the talent pool following a comparative assessment.

[15]

Later Part Time Arrangements in Funeral Services

After 26 July 2019, Mr Moratelli performed the services in funeral insurance to clients of Legal Aid and some months later, he and Ms Pikett shared the duties on a job share arrangement. Each of those employees were permanent employees employed in fully funded roles. There was, in our view, no financial or operational reason for removing either of them from performing those services and offering the Applicant a new contract to perform the work. Ms Osborne viewed Ms Pikett as a senior permanent staff member who was wanting to transition to retirement and had asked for a part-time role that did not involve management duties, so to give her the funded part-time role was an appropriate decision that met business need. We accept Ms Osborne's rationale for this change.
The Applicant was, in any event, at the time that those arrangements were put in place, employed under the different contract in the human rights section commencing on 29 July 2019 to end on 3 January 2020 described above for a different backfilling purpose.
The Applicant has also not established that there were other employees, or other persons, who were, following the expiration of their temporary contracts, offered a contract to replace part-time fully funded employees performing the services required of them.
The Applicant alleges that the role the subject of her contract under which she performed the funeral services work, which expired in July 2019, did not end on the expiry of that contract and continued to the date of the pleadings.
This allegation is a misrepresentation of the factual position. The Applicant's role pursuant to that contract (role CV232) was an unfunded position on a temporary basis. Legal Aid did not wish to continue employing the Applicant in an unfunded role. Legal Aid had available to it a person in a fully funded position to perform the services. The Applicant's role therefore no longer existed. The person referred to, Mr Moratelli, was not allocated to "the role" of the Applicant but was relocated to the Sydney office to perform services which were required on an ongoing basis and on the funded basis by Legal Aid. He would be performing those services in his fully funded Grave V position.
The Applicant's role did end. It is erroneous to characterise the Applicant's "role" in the manner alleged in the context of a temporary contract which stipulated that it did not constitute ongoing employment and with a specific expiry date, and in circumstances where the employee had no legal or other entitlement to continue working in that role, or claiming an entitlement to it.

[17]

Evidence of Professor Wood

In his reports Professor Wood first set out his opinions as to how unconscious bias may operate generally.
In summary, that issue was addressed in Professor Wood's first report as follows: "Unconscious (or implicit) bias refers to judgments that are influenced by heuristics (rules or shortcuts) and preconceptions (e.g. stereotypes, implicit beliefs) and not the information that would normally be expected to influence the judgment. For example, when the performance of a man and a woman being considered to promotion is unambiguously equal, the woman is less likely to be promoted (Genat et al, 2016). If challenged, the decision will be justified by a range of other biased judgments without clear evidence to support them, such as she is less likeable, she is not ready or she is not confident enough. Unconscious bias judgments draws on associations (stereotypes, implicit beliefs) stored in long-term memory. The person may not be aware they hold the stereotypes or implicit beliefs and, as the word unconscious indicated, they are not aware when they influence their judgments. Unconscious judgment processes are fast, take little effort, and boost the confidence of the person making the judgment (Fuller, et al, 2020). Post judgment challenges to the validity of biased judgments often lead the person who made the judgment to make further biased judgments to defend or bolster their original judgment. … In summary, without some systematic problem-solving processes and tools of the type included in performance reviews plus an openness to challenge, judgments are more likely to be subject to unconscious bias. … When it comes to individual decisions, as in the current case, the process of determining whether judgments were biased requires a different process. First, there is the question of how the known information fits the judgment. Given what is known, could a different judgment be expected? Second, are there any stereotypes or implicit beliefs that offer a better explanation of the judgment? And is there any evidence that those stereotypes or implicit beliefs bias judgment in the way it is claimed. Third, is there any evidence that the judgments made are different for people from different categories? … Three stereotypes could explain unconscious bias in the refusal to offer the Claimant work and/or leave; being female, being a mother, and, in particular, being viewed as a contract or temporary worker. These stereotypes are confounded in judgments because women are more likely to be part time and temporary workers and to have caring responsibilities."
Professor Wood then proceeded to set out his opinions as to how those concepts of unconscious bias operate to produce what was said to be "the outcomes in this case", and how.
Without setting out the first report as a whole, Professor Wood in his report stated that the refusal to offer the Applicant work and/or maternity leave did not seem consistent with the evidence of her sustained periods of employment, her performance levels, the decisions to extend her contracts and increase her work hours on multiple occasions, and her responsiveness to the needs of Legal Aid. He went on to express the view that the Applicant had shown willingness to be flexible and adapt to the requirements of Legal Aid, changing roles, locations, work settings and supervisors as requested. In many ways, the employment, performance and leave requirements of the Applicant seemed to him no different to that of "a full-time employee". In expressing these views it appears that no regard was paid to the contractual terms of the contracts or that some of the contracts were to backfill for other employees.
Professor Wood then said that based on that evidence, the refusal to offer the Applicant the requested maternity leave and work appeared to be the product of "biased judgments" that have not been taken into account the length and quality of the Applicant's service with Legal Aid.
Professor Wood nominated three stereotypes that could explain unconscious bias "in the refusal to offer the Applicant work" being, female, being a mother, and, in particular, being viewed as a contract or temporary worker. He said that those stereotypes are confounded in judgments because women are more likely to be part-time and temporary workers and to have carer's responsibilities. This focuses again on the distinction between full time and fixed term "temporary" employees.
Professor Wood went on to say that supervisors and co-workers are often quick to stereotype part-time workers and contractors. Parents working part‑time face particular discrimination and the discrimination includes assumptions that they are not as committed to their career or to the organisation as full-time employees. He expressed the view that as a result, they are excluded and overlooked in discussions of the longer term staffing needs of the organisation.
Professor Wood said that for women, perceptions of "likeability" and ease of working with are more important to their acceptance and inclusion as an employee and co-worker than it is for men. Part-time and contracted workers, particularly those with carer's duties, must more strictly stick to start and finish times and are also not as well integrated into the "social network of work settings". This affect impacts on perceptions of their likeability and suitability as a co-worker, which can undermine their access to opportunities that might be given to men and continuing staff.
Professor Wood went on to opine that in the absence of comprehensive and systematic collection and review of relevant information, judgment is more likely to be based on stereotypes, assumptions and other implicit biases that produce discriminatory judgments.
Professor Wood proceeded to make reference to what he understood to be the case that accommodations of the kind sought by the Applicant had been previously granted to others and concluded that "without evidence to the contrary for the decision processes relating to the claimant's contract extensions and maternity leave, I would suggest that the stereotyping and discrimination described is the likely explanation for the decisions".
We do not accept that the refusal to offer the Applicant the maternity leave and a contract operating from some future date was a product of biased judgments that did not take into account the length and quality of the Applicant's services.
The Applicant's length and quality of service to Legal Aid, in our view, played a material part in the offers of further employment for her when she was available to work. The Applicant was in July 2019 offered a new contract to take effect immediately after the expiry of her contract of employment working in the funeral services. The Applicant was regarded as a valuable employee and was assessed as being available to be employed from a number of current talent pools without further assessment. She was regarded as experienced and as having provided services which allowed her to be offered further contracts without additional assessment. She was sought out by Legal Aid and offered further contracts.
In relation to Professor Wood's stereotypes there was no "refusal to offer work". When available to work, new employment was offered and entered into.
In respect of the stereotypes put forward by Professor Wood, there are a large number of women employed by Legal Aid, both on permanent contracts and on short-term temporary contracts, on a full-time or part-time basis, who take maternity leave, and other leave, whilst employed. We reject the opinion that this is a factor giving rise to unconscious bias in circumstances where immediately after the expiry of her employment in funeral services the Applicant was offered a new backfilling contract and where the decision by Legal Aid towards the conclusion of her backfilling contract due to expire on 3 January 2020 was to grant to the Applicant maternity leave, because she was pregnant, up to the time her contract expired. As we explain above the reason that the Applicant did not receive additional leave was that her contract had expired, not because she was pregnant.
The fact that the Applicant had been and could be regarded as a contract or temporary employee did not stand in the way of the Applicant being employed when available. The Applicant's entitlement to permanent ongoing roles was dependent upon her applying for such roles, being comparatively assessed, which occurred in respect of a number of roles, of being unsuccessful, and available to do the work required of the role.
The Applicant was not entitled, and neither were other women, to the leave payments identified, or to an offer of future employment in an unspecified role as and when it suited the person to return to such a role pursuant to a new contract of employment.
The volume of female employees both on part-time and permanent contracts, and the number who are on leave at any point in time speak against a conclusion that there was at play stereotyping of solicitors including the Applicant facing "particular discrimination". The evidence also establishes that the Applicant was not overlooked in discussions. The facts of this case show that discussions for positions applied for resulted in the Applicant being placed in talent pools from which she could be employed - in other words, favourably considered.
We do not accept the opinion that the employment, performance and leave requirements of the Applicant seemed to be no different to that of a full-time employee, which we will assume here, to mean permanent employment. There is a fundamental difference between a full-time (permanent) employee taking maternity leave, or carer's leave, whilst employed and a part-time (or fixed term) employee whose contract has expired and then wanting to be paid additional "leave" when not employed and to which that employee is no longer entitled.
The evidence before us is against the suggestion that we should infer that there is an assumption within Legal Aid that part-time employees were not committed to their career or to Legal Aid as full-time employees or that that stereotype has relevance to this case. The Applicant was regarded and told that she was a valued employee and had done a great job. She was encouraged by Ms Osborne to apply for future vacancies. She was in an active talent pool and, as a result, could be considered for available positions which, she was, without further review.
As to the view that part-time or contract workers are typically not included in regular processes, the Applicant had been assessed and included in active talent pools which allowed her to be employed without further assessment. Part-time or contractual status was not relevant to preclude her from that opportunity.
The perceptions of "likeability" and ease of working for women may apply in certain workplaces. However, in our view, in Legal Aid the large volume of women and number who are for one or other reason on leave at any one time suggests that these issues raised do not support Professor Wood's theory of unconscious bias in this instance. In fact, the Applicant was well liked and part-time arrangements in place facilitated ease of working.
The same can be said in respect of the opinion concerning part-time and contracted workers not being integrated into "social network of work settings" whatever that phrase in fact means. The Applicant on the evidence before us was perceived as likeable and a suitable co-worker. Managers were pleased to hear that she had become available for employment during 2021 and her suitability as a co-worker is illustrated by the offers of additional work and duties in 2021. In our view, she was a colleague co-workers wanted to work with, if, of course, she was willing and available to do so.
Professor Wood appears to place some emphasis on what he described as an absence of comprehensive and systematic collection and review of relevant information which may influence judgments such that they are more likely to be based on stereotypes and assumptions affecting the judgments by "supervisors and others" about the Applicant's roles and entitlements.
Those opinions are at a level of generality which do not, in our view, display a proper and full appreciation of the facts of this case. There was, as we have found, sound financial and operational reasons not to extend the Applicant's employment to perform funeral services work which could be performed by fully funded and available employees in 2019. The assessments which had been carried out when she applied for a role placed the Applicant in active talent pools and allowed her to be employed in available roles without further open merits based competitive applications and review processes. The Applicant's entitlements were determined by the fixed term of her contracts and statutory entitlements. In our view, a systematic collection and review of information could not alter a judgment as to those entitlements.
There is no probative evidence that Legal Aid had previously made accommodations of the kind sought by the Applicant in favour of other employees which, in our view, influenced Professor Wood's opinions.
In our view, in respect of the concluding paragraph of Professor Wood's first report there is contrary evidence for the decision processes concerning the Applicant's employment. Ms Osborne explained the decision not to extend the contract and role in funeral services. It was at the time explained why Legal Aid would not grant the Applicant's requests for payment and a new contract after the expiry of her backfilling role which ended on 3 January 2021.
This was not, in our view, post rationalisation of what occurred. Ms Osborne's reasoning was given effect to at the time.
Professor Wood also gave oral evidence. Under cross examination he said that he understood that the Applicant was employed effectively in 2019 in two different teams. He had not been shown the Applicant's contracts of employment. He had not been instructed as to the underlying reasons that the Applicant's roles were being filled on a temporary basis. Although Professor Wood took issue with an offer of temporary employment over 13 months, he accepted the legitimacy of employing someone on a temporary contract for a special project with time limited funding, where a permanent employee had taken a long period of leave and needed to be backfilled, appreciated that the permanent employee has an entitlement to come back and so the vacancy can only exist for a temporary period. That was the case in respect of the backfilling roles performed by the Applicant after July 2019.
Professor Wood indicated that he had never been shown the Applicant's evidence. Professor Wood therefore does not address squarely the issue of bias where an employee has indicated that he or she will not be available to enter into employment again until some time in the future.
Professor Wood testified that he would prefer an open merits-based appointment to a position. The vacancy should be advertised and the persons interested should apply for it and that interview process conducted in a transparent way. That should also apply to conversions from temporary roles to a permanent role. In respect of a vacancy this process is less likely to lead to apprehended bias infecting a decision than the organisation simply picking a candidate without that scrutiny. The requests by the Applicant in November 2019, and September 2021 to be offered employment at some future date, were, of course, made without any regard for such processes.
Professor Wood also said in respect of minimising the risk of unconscious bias that it was founded in the Applicant being viewed as a contract or temporary worker as one of the potential stereotypes that could apply. His complaint was that he came to the conclusion that there was no evidence of due process, and so therefore, bias had some potential. In our view, "due process" does not arise where there is absent a basic element of the employment lacking, namely, no indication of availability to take up employment offered until some unspecified future date.
The following exchange also took place between Counsel for Legal Aid and Professor Wood: "Counsel: So are you saying that in Ms Trappel's case, your understanding is that she wasn't sufficiently well known to her supervisors to have the same advantage as an internal selection process? Professor: I'm saying in situations - she wouldn't have been as well-known as someone who had worked regularly in one place or closer to the person making the judgment. The evidence seems to be it's relied quite heavily on word of mouth, which tends to be biased against people who work part-time. Counsel: So if your opinion is correct, we would assume that Ms Trappel would have better prospects of success in a merits-based interview process for any vacancy. Professor: I would totally agree with that one, yea. Counsel: Just assume hypothetically for me: if the evidence suggested that Ms Trappel had been unsuccessful in every merits-based interview for a vacancy that she had engaged in, but had continued to receive contracts through these informal internal processes, based on your reasoning, it would be less likely that unconscious bias was at play there. Professor: Yes."
In September and October 2019 the Applicant, in fact, had been unsuccessful in the merit based interviews for vacancies applied for but had confirmed to be offered employment when available to work. Professor Wood's acceptance of the hypothesis thus makes unconscious bias less likely.
Professor Wood then went on to testify that he relied on what he regarded as important ("killer") evidence, the absence of formal written appraisals and the fact that the Applicant had not been upgraded and promoted each time she was offered a new contract. That, of course, is not part of the Applicant's pleaded case before us.
There followed then the following exchange between Counsel and Professor Wood: "Counsel: I take it that your opinion that unconscious bias operated in respect of Ms Trappel is based on your understanding rather than an assumption that New South Wales Legal Aid had made such accommodations for employees previously. Professor: That was one of several considerations. Counsel: The accommodation being extending a fixed term employee's contract to allow them to take maternity leave. Professor: That was one statement that was made which it was one of the - probably not the most important but one of many. Precedents are important, I believe but - Counsel: And you would accept that if that was not the case, your opinion as to the likelihood of unconscious bias operating would change. Professor: No. Counsel: It doesn't matter whether this has ever been done for anyone else before? Professor: No. It was just an additional point. I mean, I think precedents are very important, but there may be any number of reasons for them. The final paragraph (in the report) actually refers to the other reasons that I've mentioned. That's just one of several reasons."
It is clear that although Professor Wood sought to downplay his understanding that accommodations of the kind sought by the Applicant had been granted to other employees. He earlier described that understanding as the "likely explanation for the decisions". The later statement that it was one of several reasons for his opinions is less convincing. Accordingly, in our view the absence of evidence that other employees were previously afforded such accommodations counts somewhat against Professor Wood's opinions as to unconscious bias.
In respect of the refusal by Legal Aid of the Applicant's requests for a new contract after 3 January 2020, Professor Wood was taken to the explanation for that decision, namely, that the substantive occupant of the role that the Applicant was performing was returning, so the particular job the Applicant was doing would no longer be available. Professor Wood said he understood that. He accepted that in this specific case being referred to, a person returning, that would be a reason for not continuing the Applicant in that role and it would be a perfectly legitimate reason that could not be said to be infected by unconscious bias. As we point out above, the Applicant was in a backfilling role in November 2019 and September 2021 when her requests were made.
In respect of ex post facto justification, Professor Wood indicated that he was not speaking about Ms Osborne or Ms McMillan specifically but was saying reasons given after the fact often can be considered as post hoc rationalisations. He did not know whether it was true in this case, he couldn't specifically say but just that "it's much more convincing when the reasons are given before the fact". We are satisfied that Ms Osborne sufficiently explained her position to the Applicant in November 2019, namely, that Employee Related Expenses are over budget and establishing any roles were highly unlikely at the time and that her decision was not post hoc rationalisation.
Professor Wood's concern about the Applicant not being offered permanent employment, or a permanent role must be assessed in the context that the Applicant in evidence disavowed a claim that she should have been offered permanent employment.
Professor Wood's preference for an open merits based appointment may well have operated against the Applicant's interests. The Applicant herself recognised that competition for roles was strong. The ability of managers to offer her employment direct from a talent pool without further merits based assessments appears to have been to her benefit.
Professor Wood accepted that if the evidence pointed to the Applicant having been unsuccessful in every merits based interview for a vacancy that she had engaged in, but had continued to receive contracts through these informal internal processes, would, based on his reasoning, make it less likely that unconscious bias was at play. Professor Wood's concerns must therefore carry little weight in this case as the evidence supported the assumption put to him.
In his second report Professor Wood largely repeats what he set out in the first report but then paid particular regard to documents concerning the process to convert temporary employees to ongoing employees (namely, permanent employees) from mid-2020 to mid-2021. He stated that according to documentation provided, ninety-four temporary employees were converted to ongoing employment as part of that process. His report then proceeds as follows: "In the Claimants' case, this process did not satisfy the requirements of a systematic and transparent processes [sic] with clearly defined criteria and equal access to opportunities needed to conclude that the process was not biased."
The Applicant was not employed during the period 4 January 2020 to 23 February 2021, the relevant period referred to by Professor Wood.
After taking up employment again in February 2021 the Applicant was in a backfilling role and short term employment expiring in January 2022.
The materials referred to by Professor Wood relate to evidence given by Ms Macmillan in her statement concerning conversion of temporary employment to ongoing roles in accordance with the policies adopted by Legal Aid in conformity with the Government Sector Employment (General) Rules 2014, in particular rule 12 which reads as follows: 12 Conversion of temporary or term employment to ongoing employment at-level (1) An agency head may convert the temporary or term employment of a person to ongoing employment in the agency if - (a) the ongoing employment is at-level, and (b) the person has been employed in that temporary or term employment for a period of at least 12 months. (1A) The requirement under subrule (1)(b) applies only if the advertisement for the temporary or term employment did not refer to the availability or potential availability of ongoing employment. (2) The conversion to ongoing employment under this rule -- (a) must be based on the results of a comparative assessment after external advertising (whether a previous comparative assessment or a new comparative assessment) and on the employee's most recent performance under the agency's performance management system, and (b) is subject to the satisfactory conduct of the employee. (2A) The requirement under subrule (2)(a) for external advertising does not apply in relation to the conversion of a person's term employment to ongoing employment in the role in which the person is employed if the recruitment of the person to that role was limited in the manner referred to in clause 8(5)(d) of Schedule 4 to the Act. (3) The Commissioner may, on application by the head of a Public Service agency, determine that the conversion to ongoing employment at-level of an existing temporary employee (or class of existing temporary employees) specified in the determination is not required to comply with subrule (2). An "existing temporary employee" is a person referred to in subrule (1) who -- (a) is currently employed in the agency as a Public Service non-executive employee, and (b) is an existing temporary employee as referred to in clause 8C of Schedule 4 to the Act. (4) If such a determination is made in relation to an existing temporary employee, the agency head may, without complying with subrule (2), convert the person's employment to ongoing employment if the agency head is satisfied that the person has the qualifications, experience, standard of work performance and capabilities to enable the person to perform the duties of the role to which the person is to be assigned in the ongoing employment. (5) A conversion to ongoing employment in accordance with subrule (4) is to be completed by no later than 23 February 2018 or such earlier date as may be specified in the determination. (6) An application for a determination by the Commissioner under this rule must specify the following - (a) the existing temporary employees or class of existing temporary employees to which the application relates, (b) the reasons why the exemption from subrule (2) is required, (c) a timeframe for the conversion (if it is to occur) of existing temporary employees to ongoing employment in accordance with the exemption, (d) a timetable setting out the key milestones that will enable the agency to achieve that timeframe. (7) A determination by the Commissioner under this rule is to be in writing and may be varied or revoked by a further determination. (8) The conversion to ongoing employment of an existing temporary employee in accordance with clause 8C(4) of Schedule 4 to the Act does not require the approval of the Commissioner. (9) A reference in this rule to the head of the agency in which a person is employed is, in the case where the person is a Public Service senior executive, taken to be a reference to the employer of the executive.
It would be seen that rule 12 is an empowering provision and operates on the basis that the person whose employment may be converted to ongoing employment is in employment that will be ongoing. The Applicant did not satisfy the requirements of rule 12.
Legal Aid's policy in respect of conversion sets out various criteria which must be satisfied, namely:

The ongoing employment is at-level.
If the initial advertisement for the temporary employment did not refer to the availability or potential availability of ongoing employment, the person must be employed in that temporary employment for a period of at least 12 months.
If the initial advertisement of the role did refer to ongoing employment the employee can be converted at any time.
The conversion to ongoing employment must be based on the results of a comparative assessment after external advertising (either a previous or comparative assessment or new comparative assessment) and subject to the satisfactory conduct of the employee.

In respect of all offers of employment it was made clear that the offers were made on the basis that the employment was of temporary employment and would cease at the end date mentioned.
In respect of the ninety-four casual employees said to have been considered for conversion to permanent employees, Professor Wood wrote in his report that the Applicant was not given the opportunity to participate in the required comparative assessment, which would have included what he described as "claims" against the criteria of the ongoing positions, and proceeded to criticise any use of one complete performance review because it would not satisfy the standards required for equal opportunity and merit based selection. Professor Wood testified orally to the effect that his major criticism is that the Applicant should have been given the opportunity to formally apply for a permanent role.
We do, however, also note that the Applicant in cross-examination effectively disavowed a claim that Legal Aid ought to have provided her with a permanent role.
In our view, there was no obligation on the part of Legal Aid under the Government Sector Employment (General) Rules 2014 or Legal Aid's policy giving effect to those rules which required Legal Aid to offer the Applicant any employment in the roles converted to permanent. Further, there is no evidence that the Applicant did not have the opportunity to formally apply for a permanent role whilst employed if she chose to do so.
In his second report Professor Wood also opines that the lack of systematic reviews and feedback to the Applicant indicated that decisions about her roles and requests for maternity leave were subject to ad hoc decisions and that the application of rules without any consideration of her performance in the roles previously assigned to her.
We do not accept that opinion. The fact that the Applicant was in a number of active talent pools, following assessments of her qualifications and performance, allowed her to be employed in future available short-term roles without any additional consideration of her performance in the roles previously assigned to her. That process in fact enabled the Applicant to be offered employment when she was available to work without further assessment.
We reject the suggestion that in the Applicant's case her claims for maternity leave were subject to ad hoc decisions. As we have made clear above, the denial of the requests was based on the Applicant's entitlements and absence of entitlements and were soundly based.
We also do not accept Professor Wood's statement that the decision not to award the Applicant maternity leave did not take into account the length and quality of the Applicant's service with Legal Aid. As we point out above, the Applicant's entitlement to maternity leave was defined by the Award and which accrued and available to her at the end of November 2019 was based on the length of her service. She was also granted some of that leave when she applied for it. In respect of the Applicant's requests for leave at the end of September 2021 Legal Aid did take into account her service, but as she had not been continuously employed for the qualifying period she was not entitled to such leave. There was, in the circumstances, no obligation on Legal Aid to consider previous employment which terminated on 3 January 2020. Legal Aid applied the provisions of the Award. There was no unconscious bias involved.

[20]

Application of Legislative Provisions

The Applicant carries the onus of proving that the conduct of Legal Aid complained of is unlawful under the Act (see, for example, Wright v Commissioner of Police [2014] NSWCATAP 67 at [24]).
The Applicant does need to establish that the conduct pleaded in paragraph 28 to 30 and 36 to 39 of the Points of Claim is unlawful in contravention of ss 24 and 25 and ss 49S and 49T of the Act. Those sections make unlawful conduct amounting to discrimination within the meaning of ss 24(1)(a) and (b), 25 and ss 49S and 49T (see FLM v State of New South Wales (Department of Education) [2022] NSWCATAD 26 at [12]; Waters & Ors v Public Transport Corporation [1991] 173 CLR 349 at 392). It is the precise pleaded conduct which is rendered unlawful by reason of established threshold requirements.
In respect of s 49T(1)(b) of the Act, the phrase "to comply with a requirement or condition" imports the notion of compulsion or obligation (see Walker v Victoria [2011] FCA2 58 at [189] - [194] per Tracey J). In addition, the requirement or condition must be explicitly imposed, or implicit in the conduct which is said to be discriminatory (see Waters & Ors v Public Transport Corporation [1991] 173 CLR 349 at [360] per Mason CJ and Gaudron J; Dawson and Toohey JJ at 393 and McHugh J at [417]).
There are two elements of direct discrimination: differential treatment and causation. The first element must be determined by whether the Applicant was treated objectively less favourably than a person who did not have the attributes she raises in circumstances which are the same or not materially different. The second element is to be determined by whether such differential treatment was on the ground of her pregnancy or carer's responsibilities: Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWCATAP 5 at [46]-[47].
How consideration of differential treatment should proceed was considered by the New South Wales Court of Appeal in Chi v Technical and Further Education Commission (No 2) [2013] NSWCA 15 which said: "11. Every question whether conduct (actual, assumed, alleged or hypothesised) amounts to discrimination 'on the ground of' some characteristic necessitates a process of comparison. Discrimination entails differentiation. It is necessary to compare the treatment afforded to the person allegedly discriminated against with the treatment afforded (or that would be afforded) to some other person or persons; and to determine whether the particular characteristic was the source of reason for any differentiation established by the process of comparison."
In Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16 the Tribunal approached the question of differential treatment as follows: "157. The differential treatment component of direct discrimination requires the Tribunal to compare the way the Respondent treated a person who has responsibilities as a carer with the way it treats or would have treated a person who does not have "those responsibilities" in the same or similar circumstances. "Those responsibilities" refers to responsibilities as a carer. The Applicant did not nominate an actual comparator so the question must be asked in relation to a hypothetical person. In this case the relevant comparator would be a police officer without responsibilities as a carer seeking a transfer in the same or similar circumstances. Those circumstances include that the person was still subject to tenure, was leaving a position that would be difficult to fill and who had a legitimate personal reason for wishing to be transferred. 158. When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the Respondent treated the Applicant less favourably than a hypothetical person without carer's responsibilities by determining that carer's responsibilities was a reason for that treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. No final judgment can be made on the differential treatment question without examining the issue of causation."
In Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220 the function of the comparator question was explained by her Honour Mortimer J, (as her Honour then was) (at [242]): "It is nevertheless correct in my opinion to approach s 5(2)(b) on the basis that the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the "real reason" for the person's treatment more readily emerges. In the context of s 5(2)(b), it can be said that the "real effect" more readily emerges. This explanation in Purvis, combined with the particular language in s 5(2)(b), serves to highlight the overlap between "less favourable treatment" and "because of the disability" in s 5(2)(b). They are not two separate elements: rather, by reason of the comparison required, either the conclusion will be that the effect of the failure to make reasonable adjustments was to treat a person less favourably because of her disability, or the conclusion will be that it was not."
In Sklavos v Australasian College of Dermatologists [2017] FCAFC 128, Bromberg J did not understand Mortimer J to say that "s 5(2) does not require the same causation question to be answered as is required by s 5(1), namely, was the disability a reason for the conduct of the discriminator": at [38]. His Honour then set out paragraph [242] from the decision of Mortimer J which we have quoted and relevantly continued (at [39]): "Her Honour's reasoning seems to be this. At [223] of Purvis Gummow, Hayne and Heydon JJ emphasised that in addressing the comparison inquiry, "the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What then must be examined is what would have been done in those circumstances if the person concerned was not disabled" (emphasis in the original). Where that is done, the "real reason" (Mortimer J's phrase) as to why the person was treated less favourably will more readily emerge. Consequently, there is an overlap between the comparison inquiry and the causation inquiry, in the sense that the answer to the comparison inquiry will likely reveal the answer to the causation inquiry." His Honour went on to say that the causation question needed to be asked.
The relevant circumstances referred to in the legislation "are all of the objective features which surround the actual or intended treatment of the … person by the person referred to in the provision as the "discriminator" (Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [224] per Gummow, Hayne and Heydon JJ).

[22]

Claims Not Pleaded

Counsel for the Applicant contended before us that the Tribunal is not a court of strict pleadings and that the Applicant is "entitled by any proper means to prove discrimination" on the relevant grounds.
In support of that proposition the Applicant relies on State Transit Authority v Sloey and Anor [1999] NSWSC 47 at [23] per Barr J. That was a case in which the observation by his Honour that the complainant "was entitled by any proper means to prove discrimination on the ground of disability" was made in the context of a dispute as to whether the applicant had a relevant disability. In the same paragraph relied upon by Counsel his Honour went on to say that it was obvious that the complainant had a disability and that the employer's discrimination was founded on that disability (even though described somewhat differently). In our view, the case is not authority for a broad proposition that parties can, in a case where pleadings have been filed in the Tribunal, introduce new arguments or complaints of their choosing which go beyond the pleaded case.
The Applicant had ample opportunity to formulate and settle the scope of complaints and the form of her pleadings and in fact filed a number of amended versions of her claims. The Respondent is entitled to meet the case as pleaded.
It is well-established that the Tribunal must conduct hearings in a procedurally fair way, and the provisions of s 38 of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") provide a statutory context to that duty. Moreover, procedural fairness is not an abstract concept. As per Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 at [37] in respect of procedural fairness: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."
In Maygood Australia Pty Ltd v The Owners - Strata Plan No 85338 [2020] NSWCATAP 237 the issue of the Tribunal not being a court of strict pleadings arose. The matter was dealt with by the Tribunal as follows: "67. In response to the submission that the Tribunal is not a court of strict pleading, the Owners referred to the decision of Beazley JA (with whom Whealy JA and Sackville AJA agreed) in the Court of Appeal in Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; (2012) 188 LGERA 169 at [33]: "For my own part, I am also unimpressed by the submission that because this issue raised by s 43A involve the determination of legal questions, the respondent could not be prejudiced. A party to litigation is entitled to know the case it has to meet: see White v Overland [2001] FCA 1333. Just as costs are no longer the panacea for any prejudice arising from a late amendment, ambush is not an acceptable or accepted feature of modern litigation. The reasons for this are various. At the most basic level, a party is entitled to have legal advice as to the issues that are to be litigated. In particular, a party is entitled to have legal advice as to whether and how it is able to resist any claim that is to be made. If a party is not able to overcome a defence, its legal advisers have an obligation not to pursue the litigation: see the Legal Profession Act 2004, s 347. A party who pursues a claim without merit may have adverse costs orders made against it: see the Civil Procedure Act, s 56(5). It may have been that s 43A did apply. In this case, there may have been an available claim against the RTA: see the discussion as to the Roads Act 1993, s 87 below. A party is also entitled to advice as to what steps are to be taken, including the gathering of evidence, to meet any claim that is to be made. In my opinion, raising the s 43A defence after the evidence had concluded in the second trial involved a classic ambush and the respondent was denied any adequate opportunity to receive advice so as to consider its position." 68. The Owners also referred to a decision of a Senior Member of the Tribunal in The Owners Strata Plan No 60182 v Bornzin [2019] NSWCATCD 30 (Bornzin) where, at [77], the Tribunal stated: "Ambush is not an acceptable feature of modern litigation and a party is entitled to know the case it has to meet.""
The Appeal Panel proceeded at [76] to conclude that Maygood having filed Points of Defence, the Owners (and the Tribunal) were entitled to proceed on the basis that the Points of Defence (to which relevant arguments were addressed) identified the issues which Maygood intended to raise. In the absence of an amended defence to include matters not pleaded it was said that the Tribunal might have (and should have) refused to permit Maygood to rely upon the matter not pleaded. The Appeal Panel also endorsed the approach in the decision of Bornzin referred to above in respect of an "ambush" (at [77]).
In respect of direct discrimination, the Applicant did not allege unlawful conduct by reason of a failure to offer her further employment after her contract of employment in the funeral services section ended at the end of July 2019. The Applicant did not plead as submitted in argument that the Applicant was "removed" from the funeral services role and such removal was either direct or indirect discrimination which Legal Aid had to meet. The Applicant's pleadings are concerned with an alleged failure to offer another further employment after the expiry of the Applicant's contract of employment on 3 January 2020 and the commencement of new employment in February 2021.
The Applicant further does not allege that a failure to offer permanent employment, or to transform her employment to permanent was unlawful conduct.
In the Tribunal's view, it would be unfair to Legal Aid to allow the Applicant to depart from her case on the pleadings by reason of the way in which any submissions are subsequently put (see also, for example, Whiteoak v The State of New South Wales [2014] NSWCATAD 45 at [37]).
The Tribunal will not entertain claims that were not properly pleaded. We also note that even after evidence closed no attempt was made to amend the pleadings. During the course of the taking of evidence Legal Aid objected to evidence going wider than the pleadings and the evidence was permitted to be led whilst reserving Legal Aid's rights to demonstrate that the evidence did not go to the pleaded case.

[23]

Refusals

In the Points of Claim the Applicant pleads that there were three refusals by Legal Aid of requests she made. The first refusal was that the Applicant would not be provided with any further offer of employment, nor extension, allowing her to take 14 weeks parental leave, requests made in November 2019. In response Legal Aid pleaded that it did not have a practice of engaging any person on any basis for the sole purpose of permitting the person to access an entitlement, and instead employed persons on temporary contracts for the purpose of those persons performing necessary work. On the evidence before us we accept that Legal Aid did not have such a practice.
The second refusal is said to be refusing the Applicant's request in November and early December 2019 for appointment under rule 12 of the Government Sector Employment (General) Rules 2014, the rules concerning converting temporary or term employment to ongoing employment and a refusal of the request of a "return to work position". There is no dispute that these requests were refused but Legal Aid pleaded that the Applicant had no entitlement to have her employment converted to permanent employment, it was not operationally possible to convert the Applicant's position to a permanent role at any time, noting that each of her positions had a substantive occupant or was unfunded. We accept that on the evidence each of the positions occupied by the Applicant at the expiry of her Fifth Contract and Eighth Contract had a substantive occupant and her positions were unfunded on an ongoing basis. Legal Aid also responded to this refusal on the grounds that a person in the Applicant's position who was not pregnant and had not requested parental leave would not have had their employment converted from temporary to permanent.
In further response Legal Aid pleaded that it does not have a practice of offering temporary employment eight months in advance of the position being available as requested by the Applicant and could not offer persons temporary employment absent of an identified position and available funding. We accept that Legal Aid did not have the practice referred to.
In relation to this complaint the Applicant pleads at paragraph 17 that Legal Aid "could have but did not offer" the Applicant further employment until around 23 February 2021. There is no dispute that Legal Aid did not offer the Applicant further employment until that date. It is not pleaded that the Applicant made Legal Aid aware of when she was in fact ready, willing and available to perform work pursuant to a new contract of employment.
It is not clear what precisely is intended by pleading that Legal Aid "could have" made offers of employment, and at what stage she made Legal Aid aware of a desire or willingness to enter into employment again after the termination of her contract of employment on 3 January 2020.
"Could have" may indicate that Legal Aid had an ability to make offers. That does not mean that Legal Aid had a duty to do so. Moreover, it is necessary to bear in mind what was being sought by the Applicant was not a position in which she would perform the services required, but to be paid maternity leave to which she was not entitled and the option of later entering into employment again in an equivalent unspecified role.
Legal Aid in its defence pleaded that the Applicant had no entitlement to either paid parental leave or an extension of her temporary contract at the time but was granted access to paid and unpaid leave which she was entitled to. We accept that position. Further, Legal Aid pleaded that a person who was not pregnant and had not requested maternity leave, but who was not available to work from January 2022 to April 2022 would not have been offered temporary employment in that period.
The Applicant pleaded that she was willing to return to work from around 4 August 2020 (paragraph 16). We note that there is no evidence to suggest that the Applicant informed Legal Aid at the expiry of her contract on 3 January 2020, or prior to that date that she was willing and able to return to work around 4 August 2020.
The first particular to paragraph 17 refers to the contract which ended on 3 January 2020. We find that the Applicant was not in a position to accept employment to perform the services required after 3 January 2020.
In respect of the second particular there is no evidence that the Applicant applied for the positions advertised on Facebook on 16 October 2019.
In respect of the third and fourth particulars, the Applicant was in fact, and we find, offered further employment immediately after 29 July 2019 when her contract in which she performed funeral services work expired.
In respect of the other particulars to paragraph 17 concerning conversations in November and December 2019, the Applicant was not available to perform any employment offered to her after the expiry of the contract she was then employed under termination on 3 January 2020. Legal Aid, in our view, had a valid basis for not offering a contract for an option to be accepted at some future time and in some unspecified role.
The third refusal relied upon by the Applicant was the refusal in September 2021 of the request for paid parental leave and/or an extension of the Applicant's temporary contract which was due to expire on 7 January 2022.
The Applicant then pleads that in respect of the third refusal by Legal Aid to accede to her requests in September 2021 whilst employed under her Eighth Contract she was "willing to return to work" from around 18 April 2022 (paragraph 24) and Legal Aid "could have but did not offer" the Applicant further employment to the date of the Further Amended Points of Claim, being 4 March 2022 (paragraph 25). The employment particularised was the position the Applicant worked in pursuant to the contract ending on 7 January 2022 (the Eighth Contract), or alternatively, an Aboriginal targeted position advertised on 10 August 2021. Legal Aid denies that the Applicant was at the relevant time ready and willing to return to work and said further that the Applicant did not apply for the position advertised on 10 August 2021, an Aboriginal targeted position, and the Applicant had not identified herself as Aboriginal. We accept on the evidence that those denials are established.
The Applicant did not allege that Legal Aid was aware of when she may have been willing to take up new employment in 2022.
The Applicant was also offered temporary contracts of employment as a Solicitor Grade IV within the Civil Law Division for a period 20 June 2022 to 7 October 2022.

[24]

Pleaded Case - Threshold Requirements

The pleaded case then proceeds (at paragraph 27) that "by reference to" paragraphs 3 to 25: "(a) The threshold requirements of ss 25(1)(b) and 49V(1)(b) of the ADA are met by the conduct of the Respondent determining it would not offer further temporary employment to the Applicant for any period including time after the birth of her children and/or after she indicated her intention to take some time off to care for her children after birth; and (b) The threshold requirements of ss 25(2) and 49V(2) of the ADA are met inclusive of the following matters: (i) The conduct concerned terms or conditions of employment which the employer afforded the Applicant within the meaning of ss 25(2)(a) and 49V(2)(a) of the ADA including: 1. Only providing 14 weeks paid parental leave where there was an employment contract in place to the end of that period; 2. Not offering continuity of service where employee ceases work to give birth to and care for a child; 3. Relying on the end date of a temporary contract to bring the contract to an end-where an employee can no longer work due to the birth of a child; 4. Not offering further contracts: i. Between 4 August 2020 and the Sixth Contract (the 14 hour per week position in the Penrith Team described at [60] above); and/or ii. At all after the Eighth Contract (the temporary contract in the Penrith Civil Law team due to expire on 7 January 2022 described at [89]-[90] above). (ii) The conduct denied or limited the Applicant's access to benefits associated with employment within the meaning of ss 25(2)(b) and 49V(2)(b) of the ADA including: 1. Not making offers of ongoing temporary employment: i. Between the Fifth Contract (the contract ending on 3 January 2020 described at [55] above) and the Sixth Contract and/or at an after the Eighth Contract; ii. At all after the Eight Contract ; 2. Refusing to recognise her continuity of service from the First Contract (the contract starting on 21 May 2018 described at [32] above); 3. Refusing to provide 14 weeks paid parental leave on two occasions; and 4. Refusing to extend her Eighth Contract to allow her to return to that position after having a child or consider her for other positions. (iii) Subjected the Applicant to the detriments within the meaning of ss 25(2)(c) and 49V(2)(d) of the ADA including: 1. Not being offered further temporary employment: i. Between the Fifth and the Sixth Contract; and/or ii. At all after the Eighth Contract; 2. Not being paid 14 weeks maternity leave on two occasions; and 3. Not being able to return to employment with the Respondent at the conclusion of parental leave on 4 August 2020 and/or 18 April 2022."
Legal Aid in its Points of Defence pleaded in response as follows: "(a) In respect of 27(a): (i) Admits that conduct of the kind pleaded is capable of falling within ss 25(1)(b) and 29V(1)(b); but (ii) Denies that it made any such determination, noting that the Applicant was in fact offered further employment after the first pregnancy pleaded and remains an employee of the Respondent. (b) In respect of 27(b)(i): · (i) admits that the matters raised at (i) 1 and 2 relate to conditions of employment within the meaning of ss 25(2)(a) and49V(2)(a); (ii) denies that the matter raise at (i) 3 relates to conditions of employment within the meaning of ss 25(2)(a) and 49V(2)(a); (iii) denies that the matter raised at (i) 4 relates to conditions of employment within the meaning of ss 25(2)(a) and 49V(2)(a); (iv) denies that the Respondent did not offer a further contract to the Applicant at all after the Eighth Contract and says the Applicant has in fact been offered and accepted a further contract as pleaded at 25(d) above; (v) says further that at no time during her employment has the Applicant been offered conditions of employment different to any other employee in her position; (vi) says further that leave is only available to persons when they are employees; (vii) says further that the Respondent recognises the continuity of service of employees who take parental leave and remain employees, but not where their employment ceases; (viii) says further that the Applicant's contract came to an end due to the effluxion of time in accordance with its terms, and not as a result of her pregnancy or the birth of her child; (ix) repeats the matters pleaded in paragraphs 16 and 17 above; and (x) repeats the matters pleaded in paragraphs 25(c) and 25(d) above. (c) In respect of 27(b)(ii): (i) denies that conduct of the kind plead is capable of involving the denial or limitation of access to benefits associated with employment within the meaning of ss 25(2)(b) and 29V(2)(b), as no such benefit existed, in that no employee of the Respondent in the Applicant's position or similar had any entitlement to: 1. receive offers of 'ongoing temporary employment' or temporary employment, or to have their temporary contracts extended; 2. have their continuity of service recognised in circumstances where their employment had ceased and then some time later resumed; or 3. receive paid parental leave: i. after the cessation of their employment, as in respect of the first occasion; or ii. where they did not have 40 weeks of continuous service (ii) denies that the Respondent did not offer a further contract to the Applicant at all after the Eight Contract and says the Applicant has in fact been offered and accepted a further contract as pleaded at 25(d) above; (iii) repeats the matters pleaded in paragraphs 16 and 17 above; and (iv) repeats the matters pleaded in paragraphs 25(c) to 25(e) above. (d) Denies paragraph 27(b)(iii) to the extent it can be understood in that: (i) the conduct pleaded at item 1 occurred when the Applicant was not an employee and so cannot fall within either ss 25(2)(c) or 49V(2)(d); (ii) the conduct pleaded at item 2 involved the Applicant receiving the full extent of her legal entitlements; and (iii) the conduct pleaded at item 3 assumes an entitlement to 'return to work' when what is in fact meant is an alleged entitlement to be offered new employment which cannot be a detriment when no such entitlement exists."

[25]

Direct Discrimination - Unlawful Conduct

The Applicant then in relation to the conduct relied upon alleges (at paragraph 28) that Legal Aid treated her less favourably than it would have treated a man who was not pregnant or a person without carer's responsibilities, seeking another temporary contract when it: 1. failed to offer her "another further employment" on two occasions after: 1. between the Fifth and the Sixth Contracts (being, we observe, the period after 3 January 2020 and 29 January 2021 when she was offered the fixed term contract ending 8 January 2022); and/or 2. at all after the Eighth Contract (being, we observe, the backfilling contract expiring on 7 or 8 January 2022); 1. brought her employment to an end: 1. on 3 January 2020 in respect of the Fifth Contract; and 2. 7 January 2022, in circumstances, the same or not materially different, within the meaning of ss 24(1)(a) and 49T(1)(a) of the Act.
In support of that claim, the Applicant pleaded (at paragraph 29) that she relies on herself as the comparator and otherwise a notional comparator.
The Applicant then pleads that for the reasons set out in paragraphs 27, 28 and 29, Legal Aid discriminated against her on the ground of her sex or carer's responsibilities within the meaning of ss 24, 25, 49T and 49V of the Act.
Legal Aid denies that it discriminated against the Applicant as alleged and further responded to the claim as follows: 1. it denies that the Applicant is an appropriate comparator; 2. it says that the appropriate comparator is a person who: 1. was employed on a temporary basis; and 2. was not ready, willing or able to accept further work on the immediate conclusion of the temporary contract.
In respect of direct discrimination, the Applicant further pleaded that paid parental leave is an entitlement that accrues after 40 weeks' service and continuity of service is not broken by maternity leave that is taken by an employee (paragraph 36). Legal Aid admits this paragraph.
It is then alleged that Legal Aid treated the Applicant less favourably than it would have treated a man, a person who was not pregnant, or a person without carer's responsibilities seeking paid leave unrelated to pregnancy or carer's responsibilities by failing to provide paid leave after 3 January 2020, and after 8 October 2021 within the meaning of ss 24(1)(a) and 49T(1)(a) of the Act (paragraph 34).
In this regard, the Applicant relies on herself as the comparator, Mr Moratelli, who returned from long service leave to occupy the Applicant's former position the subject of the Fifth Contract (which is on the pleadings the contract expiring on 3 January 2020), and otherwise a notional comparator (paragraph 38).
In order for a claim of direct discrimination to succeed, the Applicant must demonstrate that: 1. she had been treated, in fact, less favourably than a relevant comparator was, or would have been, treated in the same circumstances, or circumstances which are not materially different; and 2. the reason for the less favourable treatment was the relevant attribute.
Accordingly, there are three elements that must be established, namely, a relevant comparator, less favourable treatment, and a causal link between the above and the relevant attribute.

[26]

Threshold Requirements

The first threshold requirement relied upon as pleaded in paragraph 27.a of the Points of Claim, namely, the alleged conduct of Legal Aid "determining it would not offer further temporary employment to the Applicant for any period" is not supported by the evidence.
As set out above, subsections 25(1)(b) and 49V(1)(b) are concerned with "determining who should be offered employment". The provisions are thus concerned with an evaluation of whether one person, the Applicant, is treated in a different manner, in a less favourable sense, from the manner in which another person (the solicitor) was treated in comparable circumstances on the ground of an unacceptable consideration (Waters v Public Transport Corporation (1991) 173 CLR 349 at 392) in determining who should be offered employment.
Paragraph 27.a appears to identify the unacceptable consideration as "after the birth of her children and/or after she indicated her intention to take some time off to care for her children after birth.
In her opening submissions to the Tribunal the threshold requirement was said to be the determination not to offer further temporary employment but went on to acknowledge that Legal Aid did offer the Applicant employment again but it was not until after she had been without work for more than 12 months after the birth of each child. The Applicant submitted that Legal Aid presumed that the Applicant would take 12 months off, work was available and she could have worked.
Accordingly, to the extent that Legal Aid made any "determination" it was in this case not so much about who should be employed but whether it would offer the Applicant a new employment contract after the Applicant had made clear that she would not be available to take up employment again until some time in the future.
Contrary to the Applicant's submissions, Legal Aid did not in November 2019 presume that the Applicant would "take 12 months off'. The Applicant advised Legal Aid at the time that she would not be available to enter into employment until the latter part of 2020 with no actual time nominated. The Applicant on her own evidence, and we find, did not wish to take up employment again until early 2021.
The Applicant was then duly offered employment in February of that year. In respect of the position following the expiry of the Applicant's contract in January 2022, the Applicant did not wish to be employed to take up duties immediately after that date, did not indicate to Legal Aid precisely when she would be available to enter into employment again, and when her position as to her availability was confirmed she was offered employment which she accepted in May 2022.
The Applicant had taken leave in October 2021, her contract expired in January 2022 and after she had applied for a job in April 2022, 8 and not 12 months after the birth of her child, and after she had indicated her availability to take up employment again, was offered a new temporary role.
On the evidence before us, every time the Applicant made clear that she was interested in again being employed and available to work, she was accommodated by the offer of a new contract which was accepted by her. Legal Aid did not "determine" that it would not offer temporary employment for any period as alleged in paragraph 27.a.
The Applicant also did not establish that in January 2020 and January 2022 the circumstances were the same or not materially different from when she was not pregnant. After the expiry of the contracts at those times, the Applicant was not available for some time into the future to enter into employment and perform services required by any offer that was a material difference.
The second threshold requirement as pleaded in paragraph 27.b, relying on s 25(2).and s 49V(2) of the Act, contains a number of elements. The first, only providing 14 weeks paid parental leave where there was an employment contract in place to the end of that period" requires close attention to the legislative provisions and the facts.
Although Legal Aid admits that the matters in paragraph 27.b(i)(l) and (2) relate to conditions of employment within the meaning of s 25(2) and s 49V(2), as we made clear above, in November 2019, Legal Aid accepted that the Applicant had an entitlement to 14 weeks paid parental leave which could have been taken whilst the Applicant was in employment. Legal Aid recognised the Applicant's length of service entitling her to 14 weeks paid leave. The Applicant applied for, and took some of that accrued leave prior to the termination of her contract on 3 January 2020. It is not clear what is to be made of the pleading "where there was an employment contract in place to the end of that period" other than that that fact enabled the Applicant to take leave whilst that contract was in place and prior to it expiring. There was no employment contract in place beyond the 5 weeks leave sought and granted before the expiration of her contract on 3 January 2020.
In respect of paragraph 27.b.(i)(2), namely, not offering continuity of service where an employee ceased work to give birth to and care for a child, it is again important to identify that a distinction needs to be drawn between not offering continuity of service where the employee ceases work in ongoing employment, and not offering continuity of services where the employee ceases to work by reason of the expiry of his or her temporary contract and the employee is not available to enter into employment again with the employer until some time into the future.
The third complaint of conduct in the requirements set out at paragraph 27.b(i)(3) is that Legal Aid relied on "the end date of a temporary contract to bring the contract to an end where an employee can no longer work due to the birth of a child". Legal Aid denies that this relates to conditions of employment within the meaning of ss 25(2)(a) and 49V(2)(a) of the Act. We agree.
Further, this pleaded requirement misconceives the legal effect of a fixed term temporary contract. The contract terminated at law in accordance with its terms unless by agreement, the term was varied or extended (ignoring for present purposes any question of repudiation).
The Applicant's contract (and employment) was in each case by agreement to end at a nominated date which was not set by reference to "where an employee can no longer work due to the birth of a child". The agreed date was entirely unrelated to whether, and if so when, the Applicant might in the future become pregnant, give birth to a child, or choose for any length of time not to work.
In relation to the fourth threshold requirement in paragraph 27.b.(i)(4), namely, not offering further contracts between 4 August 2020 and the end of February 2021 (the Sixth Contract) and or after the Eight Contract, Legal Aid denies that the matter relates to conditions of employment within the meaning of s 25(2)(a) and s 49V(2)(a) of the Act. We agree. Not offering a new contract is not a condition of employment. Sections 25(2)(a) and 49V(2)(a) are concerned with the terms or conditions of employment that the employer affords the employee. The provisions are not concerned with whether after an employee has ceased to be employed the employer does not offer new employment to the person who has no entitlement as a condition of employment to any other offers of employment. Further, we note here that it has not been pleaded, or established on the evidence, that Legal Aid was advised of a willingness on the part of the Applicant to resume work by 4 August 2020 as pleaded.
Further, it is convenient to note that the Applicant in opening submissions accepted that the Applicant was offered new employment starting on 28 June 2022, after the expiry of the Eighth Contract on 7 January 2022 which extended to May 2023, a date after the hearing in this matter. That part of the Applicant's complaint was thus satisfied by Legal Aid.
In respect of paragraph 27.b(ii)(1), namely, a denial of benefit by "not making offers of ongoing temporary employment," it is our view, and as denied by Legal Aid, that for there to be a denial or limitation on the Applicant's access to benefits associated with her employment within the meaning of s 25(2)(b) and s 49V(2)(b) of the Act, the benefit must exist. Further offers of ongoing temporary employment is not a benefit associated with employment.
In respect of paragraph 27.b(ii)(3) and (4), namely, refusing to recognise the Applicant's continuity of service from her first contract, (the contract entered into in May 2018), is in our view not a denial or limitation to a benefit. There was no such benefit to which the Applicant was entitled. Moreover, the Applicant was given access to the benefit to which she was entitled, accrued maternity leave of up to 14 weeks but, as pointed out above, she applied for maternity leave in late November 2019, entitling her to only take five weeks paid leave prior to the expiration of her fixed term contract. In respect of her employment ending on 7 January 2022, the Applicant had no entitlement to the recognition of continuity of service from earlier employment which had ceased and after which, some time later, she again became employed. The Applicant was not denied access to benefits.
The Applicant had no entitlement to receive, and was not denied, the benefit of paid parental leave after the cessation of her employment between the Fifth and Sixth Contract or after the Eight Contract.
The claimed denial of the pleaded benefits must also be assessed in circumstances where: 1. the Applicant's contracts referred to each ended by operation of their terms; 2. prior to the expiry of those contracts, the Applicant had advised Legal Aid that she would not be ready, willing and able to again enter into employment until some time in the future.
In respect to paragraph 27.b(iii)(5), namely, refusing to extend the Applicant's Eight Contract, Legal Aid did not deny or limit the Applicant's access as no such benefit existed.
The Applicant's pleaded case impermissibly requires the creation of benefits associated with employment, which do not exist, and then claims that the benefits were denied. There is no warrant for such an approach.
There was also no refusal by Legal Aid "to allow" the Applicant to return to a position she occupied under the Eight Contract. That is not what occurred. The Applicant left that employment in October 2021 and did not return to fulfil her obligation under it. The position is that the Applicant also has not established that the Applicant was entitled to a benefit of being allowed to return to any position after the expiry of the contracts relied upon.
In respect of paragraph 27.b(iii) of the Points of Claim relying on s 25(2)(c) and s 49V(2)(d), (subjecting "an employee" to a detriment), the detriment is pleaded as the Applicant not being offered further temporary employment between the Fifth and Sixth Contract or after the Eight Contract had expired. The Applicant was not an employee during those periods and therefore these provisions of the Act do not apply to not being offered further temporary employment.
In respect of paragraph 27.b(iii)(2), namely, not being paid 14 weeks maternity leave on two occasions, the Applicant could not be subjected to a detriment in relation to an entitlement she did not have. We also repeat that the Applicant was in November 2019 granted the maternity leave which she was entitled to prior to the expiry of her contract immediately after her application for such leave being made.
In respect of paragraph 27.b(iii)(3), namely, "not being able to return to employment with the respondent at the conclusion of parental leave on 4 August 2020 and/or 18 April 2020", it is clear and we find that: 1. the dates nominated were some months after the expiry of the Applicant's fixed term contracts; 2. the Applicant had no entitlement to return to employment on those dates; 3. if what is contended is that Legal Aid should have offered the Applicant a new contract of employment, no such entitlement existed and no detriment was visited upon the Applicant by not being made such an offer; 4. the Applicant was not on "parental" leave after the expiry of her fixed term contract of employment on 3 January 2020, or, after the expiry of her contract on 7 January 2022 but was no longer an employee of Legal Aid; 5. the dates nominated, namely 4 August 2020 and 18 April 2022 are arbitrary dates chosen by the Applicant and, as we point out above, once the Applicant had in fact later made herself available to enter into employment again, she was offered an accepted employment with Legal Aid in other positions then available.
In respect of paragraph 27.b(iii) as a whole, it is important to note that the alleged failures of not having been offered ongoing employment are confined to the period between the Fifth Contract, the backfilling contract ending on 3 January 2022 and the Sixth Contract, the contract in the Civil Law Penrith team commencing on 23 February 2021 and ending on 8 January 2022, and then the period after the expiry of the Applicant's Eight Contract which expired on 7 January 2022. The person whose position the Applicant was backfilling for returned from leave on 4 January 2022.
Accordingly, in respect of paragraph 27, the Applicant has not established the threshold requirements in paragraph 27.b(i)(3) and (4); paragraph 27.b(ii) and paragraph 27.b(iii). The threshold requirement as pleaded in subparagraph 27.a must also be regarded, it appears, as now qualified by the submissions.

[27]

Direct Discrimination

We turn next to deal with the pleaded case of direct discrimination as set out at paragraphs 28 to 30 and 36 to 39 of the Points of Claim. Paragraph 28.a and 28.b of the Points of Claim make it clear that the Applicant does not plead that Legal Aid failed to offer the Applicant "another further employment" after the termination of her funeral services role ending in July 2019 (the contract and variations pleaded as the First to Fourth Contract in paragraph 3 of the Points of Claim). That is no doubt so because the Applicant was, in fact, offered "another further contract" and employment to take effect immediately after the expiry if that contract.
The Applicant also does not plead as unlawful conduct that Legal Aid failed to offer her the role or roles performed by Mr Moratelli and Ms Pikett.
The Applicant therefore does not allege in reliance of s 24(1)(a) and s 49T(1)(a) of the Act that any such failures with the respect of her funeral services role was unlawful conduct.
At the time of entering into the Fifth Contract with an expiry date of 3 January 2020 and the Eight Contract expiring on 7 or 8 January 2022, the date agreed upon by the parties for the termination of the contract was not set or determined by reference to whether the Applicant was pregnant, or that she had relevant carer's responsibilities.
It appears from her submissions that the Applicant seeks to rely on a distinction between offers of further contracts and an offer of another "further employment". Although, at law, an employee's employment may be brought to an end whilst the contract of employment has not, or has not yet, been brought to an end (see for example Visscher v Giudice [2009] HCA 34: (2009) 239 CLR 361 at [53] - [54]), the reverse is not the case. The contract and the employment relationship are related but distinct.
However, where the contract of employment has ceased to operate, employment under the contract does not survive. A fixed-term contract expiring at the end of its term also brings about the end of employment. Even where an employer wrongfully dismisses an employee, the contract of employment can remain on foot unless the repudiation is accepted by the employee. However, even if the contract remains on foot, the employee cannot receive remuneration after dismissal because the right to receive it is dependent upon services having been performed (Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428).
The distinction which the Applicant seeks to rely upon cannot be sustained. In this matter, employment was brought to an end by operation of the term of the contracts, the agreed fixed date upon which the contractual relationship and employment relationship ended. Legal Aid did nothing to bring the contracts to an end. They were brought to an end by operation of law in accordance with their terms. Legal Aid could only offer "further employment" pursuant to the parties having entered into another contract requiring the performance of the duties identified in that contract.
In respect of the first limb, paragraph 28.a of the Points of Claim, it will be seen that it is not pleaded that the Applicant was ready, willing and unable to accept any offer of employment during the two periods nominated. In respect of the First Contract, the Applicant was employed in and was working in backfilling for another employee with the contract ending on 3 January 2020 and who returned on 4 January 2020. It is not pleaded that the Applicant could perform the duties of this role after 3 January 2020, or the duties of any other role immediately after 3 January 2020. In fact, the Applicant made it plain to Legal Aid in November 2019 that post-January 2020 she would not be able to perform any of the temporary contracts potentially available as she was not available to perform the duties required of the contracts for at least a period of time. As we point out above, the evidence is also that after the Eighth Contract, the Applicant was offered employment which she took up.
In our view, Legal Aid did not fail to offer further employment which could be performed, and in circumstances when it had no duty to do so.
In respect of the second limb, paragraph 28.b of the Points of Claim, namely, "brought her employment to an end" between the nominated dates, attention must be given to the contractual position between the parties. 3 January 2020 was the date upon which the Applicant's contract in the human rights team, entered into on 20 July 2019, terminated. 7 January 2022 is the date of the expiry of her Eighth Contract, the backfilling contract. In each case employment was "brought to an end" by operation of the terms of the contract. In each case, a date was agreed upon when entered into as to when the contract and the Applicant's employment would end.

[28]

The Comparator

There is a dispute in the proceedings as to the relevant comparator to be applied for the purposes of assessing differential treatment.
In respect of the direct discrimination claim, the alleged failure to offer further employment, the Applicant in her outline of opening submissions filed prior to the hearing relied on herself as the comparator in relation to the caring responsibilities and otherwise a notional comparator to say that men who take parental leave and/or women without caring responsibilities (such as she was before giving birth) are not, and were not, treated the same as she was once it became clear she would have to take some time off after birth.
In Legal Aid's written opening submissions, it responded to that position by submitting that the basis upon which the Applicant was choosing that comparator was not explained. Legal Aid contended that the correct comparator is a male temporary employee: 1. whose contract of employment was coming to an end according to its terms; 2. whose contract expressly provided that there was no guarantee or expectation of ongoing employment; 3. who did not apply for any further employment; and 4. who was not, for any reason, willing or available to work for an indefinite period at the conclusion of their contract.
In closing submissions, the Applicant's position was different and it was submitted that the correct comparator must be a male temporary employee without caring responsibilities, or female temporary employee who is not pregnant and does not have caring responsibilities: 1. whose contract of employment was coming to an end according to its terms; 2. who had consistently performed satisfactorily in any position to which they were appointed on a temporary basis; 3. who had been employed on not less than five consecutive temporary contracts without any break in employment; 4. (in the case of the Aboriginal insurance program where the position had been funded without transfer of funds from another area, or in the alternative, where money was found to fund the temporary position on an ongoing basis from another position that had been made redundant); 5. who actively sought further employment by asking for supervisors and hire managers for further employment; and 6. who had leave owing under their contract if they obtained further employment.
The Applicant also then argued that in addition to any notional comparator, she may be her own actual comparator at those times she was not pregnant, about to give birth and commencing caring responsibilities for a newborn. It was submitted that given that the Applicant had had no problems securing consecutive temporary contracts when she was not pregnant/had caring responsibilities she could be her own comparator.
The Applicant then also said that "Mr Levin" was a relevant comparator.
The Applicant contended that the comparator, whether actual or hypothetical, is between any other ongoing employee (whether temporary or not) entitled to paid leave and whether they would have been terminated, or not offered a further contract where they wished to take that leave.
We have difficulty in accepting the Applicant's formulation of the relevant comparator.
We accept that there are instances where a complainant may be his or her own comparator (see, for example, Varas v Fairfield City Council [2009] FCA 689 at [81]).
However, in our view, Legal Aid did not treat the Applicant less favourably than she would have been in if on earlier occasions she indicated that she was not available to take up employment after the expiry of a fixed term contract which expressly stipulated that the employment did not constitute ongoing employment, and that employment would cease effective from the end date agreed upon. In other words, her unavailability to perform any contract is the distinguishing factor.
In respect of Mr Levin as comparator, he was, contrary to the claim by the Applicant, in fact, as established in the evidence, in ongoing employment and would have a right to return to his employment which was ongoing after the period of leave to which he was entitled to expired.
We do not regard the submission that the comparator is between "any other ongoing employee" and the Applicant. The circumstances are simply not the same. We also reject the suggestion that the comparator should be a person entitled to paid leave or "leave owing" as asserted.
The Applicant was not entitled to paid leave which had not been taken. The Applicant was not "terminated", or not offered a further contract where she wished "to take that leave". As we have made clear above that analysis of events is erroneous.
The relevant circumstances also include that the Applicant was in November 2019 and September/October 2021 in a fixed term backfilling role for another fully funded ongoing employee who was on leave and due to return at the expiry of the Applicant's contract.
In our view, having regard for the objective facts constituting the circumstances the correct comparator must be as follows: solicitors, persons without caring responsibilities, or persons who are not pregnant, on a short-term fixed contract backfilling for a permanent employee on leave: 1. whose contracts were about to expire in accordance with an agreed term; 2. in respect of whom Legal Aid had no obligation to offer further employment; 3. who had been employed from time to time on fixed term contracts in various roles in the context of Legal Aid's practice of employing solicitors on temporary or short-term contracts and had performed satisfactorily under such contracts; 4. whose contracts expressly provided that there was no guarantee or expectation of ongoing employment; 5. who were in various talent pools enabling them to be offered employment without further assessment; 6. who requested to be offered employment or the option of taking up employment with Legal Aid at a future unspecified date in an equivalent role; 7. who at the time of the request had indicated that they were not ready, willing and able to work for some time into the future; 8. who at the same time sought paid leave after the expiry of their current contract; 9. who had no entitlement to the paid leave sought.
The context must also include that the employment of employees on temporary short-term contracts was governed by the principles adopted by Legal Aid in its written policies. Operational requirements and the effective delivery of services to the clients of Legal Aid are paramount considerations and decisions must focus on the efficient, effective and prudent use of resources and budget/funding being available.
The question of how the Applicant was treated and how Legal Aid would have treated the hypothetical comparator without the attributes she relies upon may in this case be determinative of the outcome. The Tribunal must consider ensuring equality of treatment. The Tribunal must determine the circumstances in which the conduct or treatment of the Applicant occurred and then what would have been done in those circumstances in respect of the hypothetical comparator.
In the current case it would, in our view, be artificial to exclude the critical circumstances in the comparison, namely, the factors listed in paragraph [293] above.

[31]

Failure to provide 14 weeks' leave

We do not accept that the Applicant is on her own an appropriate comparator for the purpose of this claim. The reason the Applicant was not provided with all of her 14 weeks accrued leave proposed was not her pregnancy or carer responsibility. If earlier she had applied for any other form of leave to which she was not entitled to, she would not have been granted such leave.
The reason the Applicant did not accrue, or be entitled to more than the 5 weeks leave, which she applied for and took relates to when she applied and the fact that her contract and employment ceased by operation of law in January 2020.
The reason the Applicant had no leave entitlement at the end of her Eighth Contract was that she had insufficient length of service to qualify for leave.
The reason the Applicant did not continue in employment pursuant to a new contract of employment in January 2022 was her unavailability to enter into a new contract performing the duties required of the role and position. Even if Legal Aid offered the Applicant employment some time in 2022 the Applicant would not have qualified for 14 weeks paid maternity leave.
We do not accept that Mr Moratelli is an appropriate comparator in respect of this claim. He was not on a fixed term contract backfilling for someone else. Given that the Applicant's requests made to Legal Aid at the time were for a new contract and paid maternity leave the appropriate comparator is as set out at [293] above.
We find that the hypothetical comparator solicitor in the same circumstances, or circumstances not materially different would not have been treated any differently by Legal Aid.
We accept the submission by Legal Aid that in reality the Applicant was seeking to be treated more favourably than the relevant comparator. We do not accept that Legal Aid discriminated against the Applicant by refusing to pay her as "leave" monies after the expiry of her contracts of employment.
We are not satisfied and find that the Applicant was not treated less favourably than persons without the attributes identified by the Applicant in the same circumstances, or circumstances which are not materially different. We find that Legal Aid did not discriminate against the Applicant on the basis of direct discrimination.

[32]

Disclosure of pregnancy to Ms McCaughan

The disclosure of her pregnancy to Ms McCaughan was on a confidential basis. After being told by Ms McCaughan that Mr Moratelli would be returning to work and not retiring Ms McCaughan also told the Applicant that she would help her find a new position and would keep her pregnancy confidential, as requested by the Applicant.
Of course, as the evidence and analysis above demonstrates, immediately after the expiry of the Applicant's contract of employment in the role performing funeral services on 26 July 2019 the Applicant was offered the new contract in the Human Rights section for the period 29 July 2019 to 3 January 2020. This occurred after the disclosure of her pregnancy to Ms McCaughan.
In opening the Applicant also contended that, in respect of her second pregnancy, once Legal Aid became aware of that fact Legal Aid ceased offering her work because she had carer's responsibilities and despite the fact that she was willing to work some 6 months later. There is no indication in the evidence that the Applicant's alleged willingness to return to work from around 18 April 2022 was communicated to Legal Aid.
The Applicant then in opening submitted that it seemed to be accepted that an employer could refuse to offer a woman ongoing employment in temporary roles that are available and for which she is qualified up until the time she has carer's responsibilities arising from a pregnancy and whether that is discrimination on the grounds of sex and carer's responsibilities is a matter before this Tribunal.
In our view, that is not a correct characterisation of the Applicant's case or contracts of employment, or the events as they occurred. At no stage was there an offer of employment made or contract entered into for a temporary role until the time that the Applicant had carer's responsibilities arising from a pregnancy. The Applicant had been offered various fixed-term contracts of employment which, after their expiry, the Applicant was not available to take up further employment by reason of her desire not to be working for a period of time.
In respect of the failure to provide 14 weeks paid leave, the Applicant submitted that she was entitled to be paid parental leave having satisfied the 40 weeks of service requirement contained in the Crown Employee's (PSCE) Reviewed Award 2009. The Applicant then argued that she was treated less favourably than she would have been treated as a man or person without carer's responsibilities and that the Respondent was wrong to assert that paid leave indicates a continuation of the relationship when recreation leave, and long service leave, to name two examples, are paid on termination and when there is no ongoing employment relationship.
We do not accept that a statutory entitlement for payment of recreation or long service leave on termination of employment can be equated to a situation which arose in this matter when after the expiry of the contract of employment the employee seeks to be paid for leave not taken or to which the employee has no entitlement.
In the written closing submissions filed on behalf of the Applicant new issues are raised. The Applicant argued that her pregnancy and carer's responsibilities were one of the reasons for the Respondent failing to offer her "further consecutive employment contracts". The pleaded case was not that there was a failure (or we note obligation) to offer further "consecutive" contracts.
The Applicant then argued that the "reality" is that the Applicant fell pregnant, told Legal Aid and "no one offered her work until well after the usual 12 months maternity leave that ongoing employees were entitled to take". That is a very simplistic way of characterising the events and we do not accept its accuracy.
After the expiry of the contract and role in funeral services a decision was made not to extend the Applicant's contract of employment for operational and financial reasons. The decision maker, Ms Osborne, was unaware of the fact that the Applicant was pregnant. Nonetheless, at the expiry of that contract the Applicant was immediately offered a new contract of employment for the period 29 July 2019 to 3 January 2020.
The Applicant made various approaches to Ms Osborne and others, made a written submission and indicated that she intended not to be available for employment and work for a period of time, the total amount still to be decided by the Applicant.
Counsel for the Applicant argued that the pleadings illustrate how, once the Applicant advised she was pregnant, "she was removed from her position (of performing the funeral services work) and only offered a contract that would end before her confinement was due to start. That is there was a close temporal relationship between the treatment and her pregnancy/childcare responsibilities. That contract would have continued until December 2022, based on the evidence … allowing her to take maternity leave covering both periods of unemployment (January 2020 until February 2021 and October 2021 until July 2022)".
The Applicant then argued that "as a matter of fact", the Tribunal should find that the Applicant: 1. could have remained in the funeral insurance position from June 2019; 2. could have been offered the part-time funeral insurance position from the end of 2019 including all periods of long service leave taken by Mr Moratelli; 3. could have been offered the funeral insurance position (assuming she was appointed to it full-time) from March 2022; 4. could have been offered the Walker position; and 5. otherwise, would likely have been offered other positions given the nature and breadth of her experience and the failure of Legal Aid to plead what actual positions were available and why they could not be offered to the Applicant.
The Applicant then continued to argue that in relation to the availability of positions, the facts show that there were clearly unadvertised temporary appointments about which only Legal Aid knew and which were never offered (i.e., the funeral insurance position). Further, it was argued that given the depth of evidence identifying such positions at the relevant time allows the Tribunal to draw an inference that there were other unadvertised positions available and she was simply not offered them because of her pregnancy or caring responsibilities.
In relation to the above, we make clear again that in our view the Applicant was not removed from the position performing funeral services work. In addition, if what occurred could be categorised as her "removal" from the role, the removal was not part of the pleaded case of either direct or indirect discrimination which Legal Aid was put on notice to meet. Our dealing with this evidence does not alter that position where Legal Aid reserved its right to argue that the Tribunal should not entertain such a claim.
Counsel for the Applicant argued that the Applicant could rely on the events in June 2019 as a failure to offer employment to the Applicant during the pleaded periods when she was no longer employed. Such an argument is not apparent from the pleaded case. It was argued that the failure to offer further employment could equally be because the Applicant was "removed from positions such as the funeral insurance position that was likely to be ongoing". In our view, there is a fundamental distinction between not being offered employment and the reasons and discriminatory conduct for removing someone from their position. If this was in fact the Applicant's case, it was required to be pleaded clearly in order to allow Legal Aid to make the necessary forensic and evidentiary decisions and to come prepared with the necessary evidence to counter the allegation. When challenged during the hearing as to the scope of the Applicant's case in this regard, her Counsel did not pursue the argument to conclusion and said "Look, I'm content to move on". We reject the claim that these arguments formed part of the Applicant's pleaded case.

[33]

Inferences

As the Applicant points out, where there is no direct evidence in discrimination cases, they may be determined by inference. The approach to drawing inferences in cases of discrimination in the Tribunal has been addressed in numerous cases including Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] in which identified the following applicable principles: "i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts; ii. an inference must be reasonably drawn on the basis of the primary facts; iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; iv. a fact relied on as the basis of an inference need not to be proved to the requisite standard of proof; v. it is not enough that the inference is a mere possibility: it must be one of "probable connection"; vi. the inference must be a logical one and not supposition; and vii. inferences cannot be made where more probably and innocent explanations are available on the evidence."
The Applicant then argued that Legal Aid must ensure that it has and answer for the treatment if it wishes to reject an inferential case. That includes consideration of what was in the mind, or minds of the person/persons making the decisions at the relevant time.
It is then argued that Legal Aid's evidence fails to include evidence from all the decision-makers including Ms McCaughan, Ms Walker and an unnamed person in human resources. It is said that "that alone would put an end to the defence".
The Applicant continued to argue that, in addition, the evidence of Ms Osborne fails to put any evidence before the Tribunal showing there is a probable and more innocent explanation as to why the Applicant was not offered "further employment and/or that she did not take steps to bring the Applicant's employment to an end on the relevant dates". It is said that it is no answer to that issue to say her contracts came to an end on 3 January 2020 and 9 October 2021 because there is no alternative explanation for why funds could only be found for the position (when it had previously been funded from "existing funds") by putting Mr Moratelli in the funeral insurance position.
In particular, it is said that while Ms Osborne says that as at June 2019, she knew the work associated with the funeral insurance position was ongoing but it did not have a funding allocation. The difference between funding allocation and existing funds is never explained, nor why one was required when the other had provided funding in the past. In that context, Ms Osborne said she "reviewed her establishment to see if she could find a funded role elsewhere".
The claimed close temporal relationship between the treatment of the Applicant and her pregnancy, or childcare responsibility, does not, in our view, make a case for discriminatory conduct.
It was not incumbent on Legal Aid to identify unadvertised temporary appointments about which only Legal Aid knew and which were never offered in circumstances where, as we have found, the Applicant had clearly identified for Legal Aid that she would not be available to fulfil the role, even if offered, for some foreseeable time in the future.
We do not accept the proposition that the fact that Legal Aid did not lead evidence identifying unadvertised temporary appointments during the periods that the Applicant was no longer employed, and as far as Legal Aid was aware, not available to be employed allows us to draw an inference that there were other unadvertised positions available which the Applicant could perform. We do not accept the argument that the Applicant was "simply" not offered them because of her pregnancy or carer responsibilities. Those attributes were not the reason for Legal Aid's conduct.
In our view, it is also not enough that the inference argued for concerning the Applicant's pregnancy or carer responsibility is a mere possibility. There must be a "probable connection" which we do not find.
In the context where the Applicant clearly expressed the view that she would not be available to perform work for some period after 3 January 2020 and January 2022, an inference that her pregnancy or carer's responsibility as opposed to her unavailability to perform work is, in our view, not a logical one. In addition, it must be borne in mind that Ms Osborne formed her views concerning ongoing funding for the funeral services role in December 2018 and realised it was not a long-term sustainable solution. There was at that time no issue of pregnancy or future carer responsibilities.
Inferences which the Applicant seeks to be drawn should not be made where there is a more probable and innocent explanation available on the evidence, namely, the unavailability and clear stated intent of the Applicant not to be available to perform work for some time into the future after her employment ceased.
Turning then to the matters referred at [332] above, the fact that the Applicant "could have" remained in the funeral insurance position from June 2019, "could have" been offered the part-time funeral insurance position from the end of 2019, "could have" been offered the funeral insurance position (assuming she was appointed to it full-time) from March 2022, do not support the Applicant's case. It is clear that the purpose of such offers, where the services could not be performed by the Applicant, was to create an entitlement to paid leave which the Applicant was not entitled to.
In our view, there were sound reasons in June 2019 for moving Mr Moratelli into the role. As Ms Osborne testified, she took a resource, a more senior resource, and allocated that resource to an area of high service need in a time-limited function funeral insurance work. The issue for Ms Osborne was not who had greater experience working with Aboriginal clients. The issue was that she did not have the funding to continue a temporary employee in that role. There was no challenge to Ms Osborne's evidence that she did not have the relevant funding.
There was clearly no logical reason to be offering the Applicant the part-time funeral insurance position from January 2020 when the Applicant had identified that, after the expiry of her contract on 3 January 2020, she would not be available to perform any services in that or any other role until some time in the future, probably September 2020. In addition, the work of funeral services was required to be performed.
Although Ms Walker was able to offer the Applicant work until the end of January 2022, the Applicant had made very clear that she was unavailable to perform the work and, in addition, the Applicant had already applied for and had been granted paid maternity leave until 3 January 2022 when her contract was due to expire.
The likelihood of being offered other positions is a submission which is vague and there was no obligation on Legal Aid to plead what positions were available, and why they could not be offered to the Applicant, in circumstances where she had indicated she was not available for work, was not employed by Legal Aid during the relevant period and when she did indicate an availability, was employed.
It was not incumbent of Ms Osborne to put evidence before the Tribunal beyond her clear explanation for the decisions that she made. There is no reverse onus applicable in a case of this kind. The Applicant needed to establish each of the facts said to give rise to the discriminatory conduct.
The argument that Legal Aid should have offered the Applicant part-time work with Mr Moratelli in 2019 would also require reconsideration of the circumstances applicable to the hypothetical comparator. It would require, as an addition to what is set out at [293], that the solicitor was seeking to be placed in a funded role where work was required to be performed (where there was an ongoing demand for these services to be provided) when the person could not perform the duties.
The Applicant in her proposed comparator does not come to grips with the consequences of her submissions.
The same reasons which we give above for rejecting the likelihood of the hypothetical comparator being treated more favourably than the Applicant applies here but with even more force when considering the impracticality and illogicality of the submission.
It was then submitted by the Applicant that the "withdrawal of the position Ms Walker offered, as well as, the failure of Legal Aid to provide clear cogent evidence that none of the many temporary or full-time positions available at the relevant times, being from the time she announced her pregnancy, were unsuitable or unable to be filled by the Applicant make clear that Legal Aid stopped offering her work and the only reason was her pregnancy and/or carer's responsibilities".
Once again, it is necessary to clearly identify the factual position.
Towards the end of November 2019 and after the Applicant had indicated that she would not be available for employment and work for some time after the expiry of her contract, she had a conversation with Ms Walker, the acting solicitor in charge of CLSAC. The Applicant deposed to a conversation in which she said that Ms Walker indicated that it would be great that she could come back to work in CLSAC as they needed a solicitor. The Applicant responded that she would love to return but she was not sure if it would work as she was pregnant and due on 2 February 2020 and that she wanted to take maternity leave about 1 month prior to her due date from around 2 January 2020. The Applicant also intended to take planned leave over Christmas to go to Melbourne. The Applicant thus would not be available to work after the end of November 2019. Ms Walker indicated that she did not think that that could work. The Applicant said that she was not sure why Ms Martin thought that that would possibly be a solution. The Applicant told Ms Walker that she had indicated to Ms Martin that she wanted a further contract so that she could be paid maternity leave and have a job to return to.
The fact that Ms Walker considered the Applicant as suitable to be employed did not create any obligation on Legal Aid to offer her employment she could not perform. The reason for not offering the employment was that the Applicant wished to take leave and was not available to perform the work required.
We reject the submission that the only reason Legal Aid stopped offering the Applicant work was her pregnancy or carer responsibility. The Applicant was offered further work when pregnant. The Applicant was offered further work when she made herself available and whether or not she still had carer responsibilities when that occurred is not clear. Neither attribute was the reason for the Applicant not being offered or taking up new employment.
In our view, the operative reason for not offering the Applicant any work at that stage was her unavailability to perform work and the expiration of her contract of employment on 3 January 2020.
The Applicant then argued that there was no adequate explanation from Legal Aid for the failure to allow her to continue in relevant positions such as the funeral insurance position, whether full-time or part-time, or offer her other work. We reject that submission for the reasons outlined above.
The Applicant then argued that, likewise, Legal Aid engaged in a course of conduct aimed at ceasing to offer the Applicant work once she was pregnant. That submission is contrary to the evidence and we reject it.
The Applicant points to the evidence of Ms Osborne during cross-examination that she did not bother to read the Applicant's CV before determining there were no suitable positions available.
In November 2019 Ms Osborne did not determine that there were no suitable positions available. The issue did not arise because the Applicant indicated that she would not be available to enter into employment again for some time. Ms Osborne also did not conclude that there were no suitable positions available when she, in fact, encouraged the Applicant to apply for future vacancies. The Applicant herself did not contend in her evidence that jobs listed in the Scheduled Establishment Report were positions that should have been offered to her. We refer also to the answer that the Applicant gave in cross-examination as set out at [104] above.
The Applicant then also argued that the Tribunal should accept that as a matter of fact if the Applicant had not been pregnant or had carer's responsibilities she would have remained in the funeral insurance position or been offered that position later on. We do not accept that submission. The submission is against the evidence and the reasoning of Ms Osborne for reallocating resources to the role. We further do not accept the submission that had the Applicant not been pregnant or had carer's responsibilities she would have been offered employment until 31 January 2020 following her discussion with Ms Walker. The reason she was not offered the role was because she was not available to fill the position.
We also do not accept that had the Applicant not been pregnant, or had carer's responsibilities, she would otherwise have been appointed to another position within Legal Aid in circumstances where she indicated that she was not available to perform the work or in circumstances where she wished to be paid and not to perform the work for such payment.
In closing submissions the Applicant claimed that she had been told that in general temporary contracts usually are extended. However, as is made clear above each of the contracts that she entered into stipulated that the offer did not constitute or imply long-term appointment or employment. There is no evidence that what the Applicant says she had been told was correct.
The Applicant then argues that her case was that she should be treated the same as she had been before she was pregnant. The fundamental difference, however, was that when her previous contracts of employment expired she had been available to enter into a new employment and contract and to perform the work. That was not the case in January 2020 or January 2021.
The Applicant also argued that the funeral insurance position was clearly funded from "existing resources" and that there was no evidence from Ms Osborne whether the existing resources funding disappeared requiring funding provided by Mr Moratelli's position. In our view, as pointed out above, the existing funding referred to was not a funded position but over budget expenditure which was not sustainable. These arguments also go beyond the Applicant's pleaded case.
Returning to the funeral insurance position, the Applicant argued that "there is no doubt" that it became a long-term temporary position and that the Applicant was "removed from that position" and Mr Moratelli was appointed to that position without any advertisement or interview.
That is not an accurate record of the factual position and what in fact occurred. We refer in particular to the evidence of Ms Osborne above.
There is also no reason established as to why employees in fully funded positions working on a part-time basis should have been displaced by an employee, who was at the end of 2019 not available to work, or why, in March 2022 where alternative employment was available and was offered to and accepted by the Applicant, those arrangements should have been disturbed.
The Applicant later argues and categorises her case as asking to be treated the same as a temporary employee as she had been prior to being pregnant. Prior to Legal Aid being aware that the Applicant was pregnant she was working on fixed-term contracts in a role which ended, not by reason of pregnancy, but by operation of their terms. If and when the Applicant was available to again enter into employment she was offered employment. She was treated the same way by Legal Aid when available to perform the duties of an identified position.
The Applicant pointed to evidence that she had been told in September 2021 by Mr Langley, her supervisor, that Legal Aid would not extend her contract until such time as the employee for whom she was backfilling was due to return to work.
The reasons for that are obvious. The Applicant was not willing and able and could not perform any of the duties that were required for the backfilling of that role beyond the time that she indicated in September 2021, and following the expiration of her contract on 7 January 2022. By reason of the need for the role to be backfilled the Applicant was not available to carry out the duties required. There is no logical reason as to why Legal Aid would grant the Applicant an extension of the contract to create an artificial accrual of entitlements to which the Applicant was not otherwise entitled to.
The Applicant then went on to argue in closing submissions that Legal Aid provided the Applicant no assistance whatsoever in finding alternative employment and further declined her application to be converted to full-time employment. These arguments are not part of the pleaded case of unlawful conduct by Legal Aid. In addition, the reference to the application to be converted to full-time employment is a reference to what occurred in November 2019. First, as is clear, the unlawfulness of the conduct pleaded against Legal Aid at paragraph 28 does not include the failure to offer the Applicant conversion to full-time employment at the expiration of the contract expiring on 3 January 2020. Moreover, as is apparent from Government Sector Employment (General) Rules 2014 conversion to full-time employment involved an application with ongoing employment. There was no need whatsoever for Legal Aid to convert the Applicant's expiring temporary contract of employment to ongoing employment which was not to be performed.
The Applicant's approach appears to be that because there were other jobs and positions within Legal Aid, some of which could be performed by the applicant because of her experience, Legal Aid was obliged to offer her employment. Legal Aid was under no such duty.
The Applicant argued that the only way that Legal Aid could argue that the Applicant's pregnancy or carer's responsibilities were not factors in the decision not to offer her the funeral services work is if there was no choice but to appoint Ms Pikett based on clear transparent criteria that do not include discriminatory conduct. We reject that submission. There were, in our view, sound reasons to allow the two fully funded employees to continue to perform the work.
Ms Osborne in her evidence made clear that when Mr Moratelli wanted to work part-time it was a position that could not be backfilled by the Applicant. The Applicant was a temporary employee. Two fully funded permanent employees who were sharing that role at the time. Ms Osborne said that she could not understand why she would put a temporary employee, unfunded, into the part-time position. We accept the force of that view by Ms Osborne. The Applicant was also in another role at that time.
In circumstances where the Applicant's pleaded case does not extend to the position as at July 2019 Legal Aid cannot be criticised for not expanding on the evidence about the ending of the Applicant's temporary role in funeral services.
In our view, no Jones v Dunkel principle applies.
It was then argued that there was no evidence as to why Mr Moratelli was not paid redundancy or, in the alternative, why he could not be offered work elsewhere. The relevance of this submissions is obscure. The submission does not assist the Applicant's case when there were, and we accept, sound reasons to relocate Mr Moratelli as part of his funded position and grade to perform the work as part of his funded role. Ms Osborne said in evidence that Mr Moratelli owned the grade, Grade V in the Civil Law Division and she was able to move resources around depending on business and operational needs which she did. It was not necessary for Legal Aid to provide evidence that this is the only work for which he was qualified in the organisation.
The Applicant's submissions also disclose the underlying assumption or premise that once the Applicant disclosed her pregnancy Legal Aid was obliged to accommodate her and find her employment. We do not accept that premise.

[34]

Comparative Assessment

The Applicant then appears to rely on applications made by the Applicant for positions within Legal Aid between 30 January 2018 to 24 May 2021, some eight positions. The Applicant argues that in five out of eight applications the Applicant was placed in a talent pool. In one, no one was recommended for the position and in the other two the Applicant was assessed as having insufficient experience relating to migration and insurance respectively. It is said that this evidence reinforced the Applicant's case that she was qualified across a wide range of positions in Legal Aid. The evidence is to the contrary. The Applicant was unsuccessful in her applications. Being placed in a talent pool recognised her experience but until a position was identified which was suitable and the Applicant was available to do the work her qualifications did not create an entitlement to any position.
It was then argued that "importantly" it showed that the Applicant was rejected for four positions at the end of 2019 when she was seeking long term employment covering her maternity leave. It is said that two of those positions would have had her employed up to around July/August 2020. However, the Applicant was comparatively assessed for these positions which she applied for and was unsuccessful. The argument that in those circumstances the positions for which she was unsuccessful would have given her employment until mid-July 2022 is illogical.
The Applicant then argues that there is no evidence from Legal Aid as to who made the decisions rejecting the Applicant for employment at the relevant times. That is not an accurate reflection of the documents which clearly detail in a number of respects the reasons for the recommendation as to the successful candidate together with a review by the relevant Business Partner.
There is no evidence at all in our view that the Applicant's pregnancy or future carer's responsibilities in any way played a role in any of the comparative assessments for the roles.
The suggestion that Legal Aid ought to have led evidence in relation to this process should be rejected. The comparative assessment report is, in our view, a business record upon which we can rely and there is nothing to suggest any consideration being given to the Applicant's pregnancy or carer's responsibility. Further, even if Legal Aid could have offered the position applied for, the Applicant had no intention of working until at least September 2020 and in fact until the beginning of 2021.
In our view, an assessment of the documents indicated a rigorous process with the successful candidates being assessed as performing higher on a merits basis than the Applicant in each case. As Legal Aid points out in its written submissions, that conclusion can be illustrated by reference to successful applicants having far more experience and presented better than the Applicant.
The Applicant suggested in submissions that the Tribunal could not rely on the face of the documents. We reject that submission. The Applicant does not identify a single matter in any of the applications which is wrong, or could in any way be linked to her pregnancy, requests for leave, or carer's responsibilities.
There is no pleading that Legal Aid discriminated against the Applicant by reason of her being unsuccessful for any of the positions which are now relied upon.
Legal Aid also argues that the entire process arose because of the Applicant's managers treated her in the same way as they had previously, attempting to accommodate her by finding a future role although here unsuccessfully. We accept that submission as it is borne out by the evidence.
Legal Aid draws attention to the fact that these are all new matters that are not expressly pleaded and draws attention to the fact that the conclusions urged upon the Tribunal rely on inferences said to be available from the lack of evidence directly addressing these contentions on the part of Legal Aid. Legal Aid argues that it is not an appropriate approach given the new emergence of these matters. We agree with that submission. It will be a denial of procedural fairness to Legal Aid to introduce these claims as unlawful conduct when not expressly pleaded as such.

[35]

Indirect Discrimination

By her Further Amended Points of Claim, the Applicant identified what was said to be two conditions which amount to indirect discrimination. The first was pleaded as a condition or requirement on the Applicant, "that she not take leave related to pregnancy or caring for children in order to receive offers of temporary employment covering periods of time around and immediately after giving birth, or becoming a carer" including between the Fifth and Sixth Contract and after the Eighth Contract (paragraph 31).
The second requirement pleaded is the requirement placed on the Applicant was said to be "that she not take parental leave in order to be offered further temporary contracts" after the Fifth Contract and/or in order to continue during her temporary contract of employment the subject of the Eighth Contract (paragraph 40).
The conditions or requirements as framed are, in our view, flawed. There was no requirement that the Applicant "not take leave" related to pregnancy or caring for her children. There was no requirement that the Applicant not take leave related to pregnancy or caring for children in order to receive offers of temporary employment covering periods of time around and immediately after giving birth. After the Applicant's contracts expired by operation of their terms the Applicant was not employed. She would thereafter not be on "leave". Legal Aid did not impose on the Applicant any requirement about leave, nor that the Applicant not take "leave", in effect, not being employed, Legal Aid accepted that the Applicant would not be available to enter into employment again to perform the duties required of a new role until some time into the future.
Legal Aid argues that in respect of the first condition, it is important to recognise that it involves a much more limited case than the proposition that taking leave would entirely exclude the Applicant from offers of future employment, a position that was unsustainable on the evidence. Legal Aid argues that the moment the Applicant indicated her willingness to return to seek employment the organisation took active steps to engage her. We accept that to be the case.
Legal Aid argues that the complaint is truly directed at the fact that the Applicant was not offered notional employment during periods in which she was not as far as Legal Aid knew, ready, willing, or able to perform any work. That was, it argues, unavailability rather than her taking leave per se. We accept that contention. On the Applicant's own case she was seeking notional employment to obtain an additional leave entitlement. As we point out above, the period after the expiry of the Applicant's fixed term contracts was not leave.
The Applicant pleaded in respect of the conditions or requirements they were not reasonable as Legal Aid does not impose the requirement "not to take leave related to pregnancy or carer's responsibilities on women who are not temporary employees" and there were "significant benefits to the organisation" of retaining the Applicant up until 3 January 2021, rather than have her take leave earlier in that case, and up until July 2022".
Further, Legal Aid argues that even if the condition or requirement could be established, which is challenged, the evidence supports a conclusion that they were reasonable in circumstances where Legal Aid principally uses temporary employment to backfill otherwise permanent roles, in other words, where a permanent employee is absent in circumstances where it is required to maintain service delivery and not simply to provide a benefit which is not available to everyone where an employee was not available to perform the work required.
As to the second condition, Legal Aid argues that it is unsustainable on the evidence. The Applicant was unavailable to work on both occasions after her contract and employment had expired. She was in fact offered employment with Legal Aid once she indicated her availability to return. The Applicant did not direct any closing submissions to this condition.
If the Applicant's formulation of the conditions or requirements is accepted we are of the view that they were in all the circumstances reasonable. In our view, it was a reasonable condition or requirement applying during the period between her Fifth and Sixth Contracts, or after her Eighth Contract, in circumstances where the Applicant was unavailable to work. Legal Aid would not be able to maintain service delivery. There would be little point, other than providing a benefit at a cost that is not suggested would or should be extended to a non-pregnant temporary employee, of engaging someone who is equally unavailable to provide the required services. There was no withholding of parental leave. No entitlement to such leave existed at the relevant times.
We do not accept the comparison with women who are not temporary employees. First, women who are not temporary employees are entitled to, and on the evidence, do take leave of all kinds whilst employed. It is their status as employees, in fact ongoing employees, which entitle them to leave, a status the Applicant did not have at the relevant times.
Secondly, if those women were no longer employed their absence from Legal Aid would not be "leave".
The argument of the benefit to Legal Aid of retaining the Applicant up until 3 January 2021, when she had indicated to Ms Walker in December 2019 that she was not available to work in December 2019 and January 2020, and when the Applicant was not available to enter into employment again until the end of 2020 cannot succeed. There was, in our view, in all the circumstances little, if any, benefit to Legal Aid.
The Applicant has not established the conditions or requirements pleaded. Further, if they are contrary to our finding conditions applicable to the Applicant they are in our view reasonable.

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