Trappel v Legal Aid Commission of New South Wales

NCAT Appeal Panel|2024-04-12

Introduction

Ms Trappel (the Appellant) is a solicitor who worked for the Respondent (Legal Aid) pursuant to a series of back-to-back short-term fixed contracts of employment from May 2018 to January 2020. After she had completed more than 12 months continuous service, she was entitled to 14 weeks paid maternity leave but only for so long as she was employed by Legal Aid.
When she sought and took maternity leave in late 2019, there was only 9 weeks left of her fixed term of employment. She requested that she be offered a new contract of employment at the end of her current contract which permitted her to take paid maternity leave at the commencement of such contract, further leave without pay and then to resume duties in September 2020 on a date to be agreed between the parties. Legal Aid refused this request and the Appellant's employment with Legal Aid ended.
The Appellant was offered and entered a new series of fixed term contracts of employment commencing on 23 February 2021. In September 2021, when she was pregnant a second time, she sought and took 'personal' leave from 8 October 2021. She was on leave when her employment expired in January 2022. She was not entitled to paid maternity leave as she had not completed more than 12 months continuous service.
The Appellant alleged before the Tribunal that the conduct of Legal Aid amounted to unlawful discrimination under the Anti-Discrimination Act 1997 (NSW) (the ADA). The Tribunal on 5 December 2023 dismissed the Appellant's application (the Decision). Before us is the Appellant's appeal from the Decision.
The relevant issue before us, in broad summary, can be said to be whether or not the Tribunal erred in failing to find that Legal Aid's conduct towards the Appellant amounted to indirect discrimination on the ground of either pregnancy, sex or carer's responsibilities. For the reasons which follow, we have decided to dismiss the appeal.

Background

The Appellant was employed in the Civil Law Service for Aboriginal Communities (CLSAC) within the Civil Law Division, undertaking funeral insurance work. She was initially employed from 21 May 2018 on a part-time basis, but due to an increase the volume of work in the area at the time, this was converted to a full-time basis on 16 December 2018..
The original offer of employment was on a temporary basis in accordance with the Government Sector Employment Act 2013 (NSW). The offer was accepted by the Appellant with the express condition that she understood that the offer was of temporary employment, working 28 hours per week and the contract was to end on 11 September 2018.
On 3 September 2018, the Appellant was informed that Legal Aid had approved an extension of her temporary employment from 3 September 2018 for a period up to 30 June 2019. The contract of employment contained the same endorsement that it was temporary employment, and it was with the same classification and hours of work as in the original contract of employment.
On 18 December 2018, The Appellant was offered further employment in the same classification but there was an increase in hours from 28 hours per week to 35 hours per week. Otherwise, in all other respects, the conditions of her employment and role were the same. From 24 June 2019 to 26 July 2019, the Appellant entered into a further short-term temporary employment contract with the same endorsement that the offer of employment was for temporary employment and was not to imply long-term appointment to the role.
The Tribunal found that 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: at [33].
Between 29 July 2019 to 3 January 2020, the Appellant was put on a temporary contract of employment to work full-time in the Penrith Civil Law team. Again, the contract said it was subject to conditions and that it did not imply long-term employment to the role.
During this contract, the Appellant was pregnant. The Appellant formally disclosed her pregnancy to Legal Aid in or around November 2019. At that time, she was entitled to 14 weeks paid maternity leave on the basis that Legal Aid recognised her continuity of service.
The Appellant then requested that Legal Aid offer her a further contract to allow her to take maternity leave and have a job to return to. Her request to Human Resources at Legal Aid was that she be paid maternity leave from 3 January 2019, being after the conclusion of her employment, and then be offered an equivalent position commencing in September 2020, with the exact position and date to be agreed. Legal Aid refused this request.
The Appellant went on paid parental leave on 9 December 2019 and her contract of employment terminated on 3 January 2020. She advised Legal Aid that she was interested in returning to work in early 2021.
The Appellant was then offered temporary employment as a part-time solicitor in the Penrith Civil Law team from 23 February 2021 to 8 January 2022. Her hours were increased on 21 April 2021. In May 2021, the Appellant was offered additional work in the Port Macquarie Civil Law team, which she accepted.
In July 2021, the Appellant was offered a temporary contract as a full-time solicitor in the Penrith Civil Law team from 1 September 2021 to 7 January 2022. On 8 September 2021, the Appellant advised Legal Aid that she was pregnant. When the Appellant enquired if she could take a period of leave beginning 8 October 2021, she was informed that she was not entitled to paid maternity leave but could take her 'own paid leave, REC-Flex prior to the birth of her child'. The Appellant took leave from October 2021 and did not return to work before the end of her contract.
On 10 April 2022, The Appellant unsuccessfully applied for a position as a Grade IV solicitor in Penrith. The Appellant then took up temporary work in the Blacktown Civil Law team pursuant to a temporary contract from 28 June 2022 to 7 October 2022. This was then extended to 30 May 2023.
This was the position on the last of the hearing dates on 30 March 2023 in the Tribunal below.

Relevant Legislation

The relevant provisions of the ADA 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.

Indirect Discrimination - the Appellant's case at first instance and on appeal

Whilst the Appellant put forward a case both of direct and indirect discrimination, on appeal she only challenged the Tribunal's dismissal of her case on the ground of indirect discrimination.
Relevantly, the Appellant contends Legal Aid unlawfully discriminated against her on the ground of sex, or on the ground of her responsibilities as a carer: 1. In determining not to offer her employment immediately following the expiry of her two temporary contracts of employment at the times of her pregnancies contrary to s 25(1)(b) and s 49V(1)(b) of the ADA or; 2. Subjecting the Appellant 'to any other detriment', being the failure to offer her such further employment contrary to s 25(2)(c) and s 49V(2)(d) of the ADA.
The relevant discrimination relied upon on appeal was that of indirect discrimination or discrimination contrary to s 24(1)(b) and s 49T(1)(b) of the ADA. The way in which it was put in the further amended points of claim was as follows: 1. 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 Appellant for any period including time after the birth of her children and/or after she indicated her indication to take some time off to care for her children after birth; and 2. The threshold requirements of ss 25(2) and 49V(2) of the ADA are met inclusive of the following matters: 1. Subjecting the Appellant 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: Between the fifth and sixth contract and/or At all after the eighth contract. 1. Not being paid 14 weeks maternity leave on two occasions; and 2. Not being able to return to employment with the Respondent at the conclusion of parental leave on 4 August 2020 or 18 April 2022.
The way in which the Appellant put her case on indirect discrimination is set out in the further amended statement of claim as follows: Indirect Discrimination 31. By reference to paragraphs 3 to 25 above, the Respondent imposed 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 (Requirement) including: a. between the Fifth and the Sixth Contract and/or b. after the Eighth Contract. 32. A substantially higher proportion of men, or people not pregnant and/or without caring responsibilities could comply with the Requirement. 33. The Applicant did not comply with the Requirement. 34. The Requirement was not reasonable as: a. The Respondent does not impose the Requirement on women who are not temporary employees and b. There were significant benefits to the organisation of retaining the Applicant: i. up until 3 January 2021, rather than have her take leave earlier in that case and ii. up until July 2022. Particulars iii. Conversation between the Applicant and Mr Levin on or about 18 November 2019 regarding the needs of the Human Rights team in the context of the Applicant taking leave before 3 January 2021. iv. Expert evidence to be filed on recruitment costs associated with replacing employees. … Indirect Discrimination 40. By reference to paragraphs 3 to 25 above, the Respondent imposed a condition or requirement on the Applicant that she not take parental leave: a. in order to be offered further temporary contracts after the Fifth Contract and/or b. in order to continue during her temporary contract of employment the subject of the Eighth Contract (Requirements). 41. A substantially higher proportion of men, or people not pregnant and/or without caring responsibilities could comply with the Requirements. 42. The Applicant did not comply with the Requirements. 43. The Requirements were not reasonable as: a. The Respondent did not/does not impose the Requirements on men or women who are permanent employees and b. There were significant benefits to the organisation of retaining the Applicant: i. up until 3 January 2021, rather than have her take leave earlier in that case, and ii. up until July 2022. Particulars iii. Conversation between the Applicant and Mr Levin on or about 18 November 2019 regarding the needs of the Human Rights team in the context of the Applicant taking leave before 3 January 2021.

The reasoning of the Tribunal

The Tribunal made the following findings at [107]: 107 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. 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. 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. 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.
The Tribunal found at [109], which is not in dispute, that at the time of The Appellant's first pregnancy, she had accrued an entitlement of 14 weeks paid leave. However, Legal Aid was not obliged to pay out any unused leave at the end of the temporary employment contract which was due to expire on 3 January 2020. The Appellant was granted the leave she sought from 8 December 2019 until 3 January 2020 because she was pregnant.
The Tribunal found at [111] that the Appellant was paid five weeks leave, and not 14 weeks, because the Appellant's contract terminated in accordance with its terms prior to the expiry of the 14-week period and no contractual or statutory entitlement existed for the Appellant to be paid out leave on termination of her employment on 3 January 2020. As a result, according to the Tribunal at first instance, the reason that the Appellant could not take more than five weeks paid leave was not her pregnancy or future carer responsibilities: at [111].
The Tribunal pointed out that unlike permanent employees who were employed in 'fully funded roles', the Appellant did not have a position for which Legal Aid had funding on an ongoing basis. As the Tribunal put it at [121] and [122]: 121 …. 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. 122 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.
The Tribunal determined the case of indirect discrimination at [385]-[397]: Indirect Discrimination 385 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). 386 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). 387 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. 388 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. 389 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. 390 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". 391 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. 392 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. 393 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. 394 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. 395 Secondly, if those women were no longer employed their absence from Legal Aid would not be "leave". 396 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. 397 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.

The scope and nature of appeals

To succeed in an appeal, the Appellant must demonstrate either an error on a question of law, which may be argued as of right or that permission (that is 'leave') to appeal should be granted to bring the appeal: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 80(2).
The Appeal Panel has a discretion whether to grant leave under s 80(2) of the NCAT Act.
The principles governing the application for leave to appeal under the NCAT Act are well-established and repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28 (citations omitted]: Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.

Ground 1

The Appellant relies upon two grounds (ground 1 and ground 3) in her amended grounds of appeal. To the extent any such grounds do not involve questions of law, leave to appeal is sought. It should be noted that ground 2, concerning direct discrimination was not pressed.
According to the Appellant, the primary basis for the appeal is that the Tribunal misconstrued and wrongly applied the relevant sections of the ADA. The Appellant submits this led the Tribunal to: 1. Reasoning on an incorrect basis; 2. Failing to take into account relevant considerations.
The Appellant first focussed upon ss 25(1)(b) and 49V(1)(b) of the ADA. Section 25 of the ADA focusses on discrimination against a person on the ground of sex, whilst s 49V draws attention to discrimination against a person on the ground of the person's responsibilities as a carer.
The Appellant's case to us on appeal is that she was not offered further temporary contracts once she disclosed her pregnancy in the same way she had been prior to becoming pregnant. Prior to becoming pregnant the Appellant had been employed in several back to back contracts amounting to continuous service, between 21 May 2018 and 3 January 2020. The Appellant asserts that once she disclosed she was pregnant she was in fact moved from a role that continued at least until the date of the pleadings.
As the Appellant put it, she was offered ongoing temporary contracts while she was not pregnant but once pregnant, she was removed from a contract that was ongoing and, if she had been allowed to continue in that role, she would have been entitled to take maternity leave on both occasions with no break in service and a job to return to.
Further, as the Appellant puts it, even if she had not continued in that position, her qualifications and experience were such that she was employable by the Respondent in many positions and the Respondent, who bore the burden of proof that there was no position available for her, put on no evidence as to why she could not have continued in the position the subject of the Fourth Contract or some other role.
On appeal, the Appellant referred to paragraphs 3-25 of the Points of Claim before the Tribunal to set out the matter in which the Appellant asserts she was not offered employment.
The relevant material facts relied upon included: 1. The various contracts that she was offered, including the durations of those contracts; 2. Those contracts were temporary; 3. Temporary contracts may be extended subject to funding and performance; 4. She was in continuous service on temporary contracts until she disclosed her pregnancies; 5. She asked for further employment covering the period of her maternity leave and it was refused; 6. The Appellant would have returned to work on or about 4 August 2020 and later on or about 18 April 2022; and 7. The Respondent could have but did not offer her ongoing employment.
Turning to s 25(1)(b) and s 49V(1)(b) in respect of determining who should be offered employment, the Appellant submits the Tribunal simply had to determine whether the Respondent made a determination as to whether it would offer employment to the Appellant. The Appellant submits that it was clearly pleaded that the Respondent could have offered employment to the Appellant but did not and there is no dispute that there was no employment offered for the period between the Fifth and Sixth Contract and after the Eighth Contract by reference to the Respondent's own defence.
The Appellant then in her submissions refers to paragraph [241] and [242] of the Decision as follows: 241 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. 242 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.
The Appellant contends that the Tribunal's reliance on Waters was in error. This was because Waters was a case about the test for indirect discrimination and the reference by the Tribunal to this case was at the page that concerns the test for direct discrimination. The Appellant submits that it was an error of law to determine whether the Appellant brought her claim within this provision by reference to the test for direct discrimination (which is found in s 24(1) of the ADA), rather than whether the facts and matters pleaded disclosed a decision about whether to offer the Appellant employment.
Accordingly, the Appellant submits the findings of fact were thus by reference to the wrong test for this provision.
The correct finding by reference to the pleadings and the uncontested evidence is that despite the Appellant asking for further employment, she was not offered any further employment between the Fifth and Sixth Contract and after the Eighth Contract, until she was reemployed on 28 June 2022.
The Appellant then focussed on paragraphs [243] - [249] of the Decision as follows: 243 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. 244 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 sometime in the future. 245 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. 246 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. 247 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. 248 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. 249 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.
According to the Appellant, the Tribunal was in error at [244] to find there was no determination made as to Appellant not being offered employment rather it determined not to offer the Appellant a new contract, 'when she had made clear she would not be available to take on employment again'.
According to the Appellant this discloses an error which relates to the finding that 'employment' as referred to in the ADA, is limited to being available to work, as is apparent in paragraph [248] of the Decision. According to the Appellant, the Tribunal fell into error in that it failed to appreciate that at common law, contracts of employment concern relationships of rights and obligations that mean the employment contract can be in existence and subsist even where an employee is not at work nor available to work. This can include for example periods where an employee takes leave.
In other words, as clarified in oral submissions with the Appeal Panel, the Respondent could have offered the Appellant a new employment contract at the expiry of the relevant temporary contracts with the Appellant taking leave at the commencement of that contract and with duties to be actually performed at a date to be determined subsequently. According to the Appellant, this error of law has implications for determining whether indirect discrimination was made out.
According to the Appellant, paragraphs [244] - [249] of the Decision, illustrate how the Tribunal erred by considering the test for discrimination, which can only apply after ss 25(1)(b) and 49B(1)(b) of the ADA are satisfied. According to the Appellant, the mere fact that she could not work or is not available to work for periods after the expiry of the relevant temporary contracts, did not mean that she was not seeking and could not be offered employment and further employment contracts.
The Appellant contends that in so far as the Tribunal at [246] made a finding of fact that the Appellant did not wish to take up employment (which is separate from not being available to work immediately at the end of her temporary contract) that was a finding either so unreasonable it could not be made or simply unsupported by the evidence.
As the Appellant put it, the fact that offering her another temporary contract would have resulted in her taking leave, does not mean she was not available for employment as 'employment' is inclusive of leave entitlements.
The Appellant also contends the Tribunal made an error of law or failed to make findings on the pleaded case which was that the Appellant did not have continuous employment because the Respondent could have but did not offer her work around her confinement when she had caring responsibilities for a newborn. That is, the gaps in her employment were because the Respondent did not want to employ her because she would take leave associated with her confinement and her caring responsibilities.
The Appellant submits that this also means the Tribunal took into account irrelevant considerations including whether the Appellant was later offered employment, which is an error of law. It was the Appellant's case that the Respondent determined that it would not offer her ongoing employment. That ongoing employment could have been other temporary contracts, including, but not limited to, a continuation of the funeral position given to a male employee in circumstances where there was no evidence that this had to happen. The fact that the Respondent later provided employment is not an answer to the discrimination claim pleaded.
Put in another way, according to the Appellant, the fact that a person stops discriminating against a person at a later time does not mean it did not discriminate against that person at an earlier time. Similar criticisms by the Appellant are made of the Tribunal's reasoning and conclusion at [249]. The Appellant contends the Tribunal fell into error in this paragraph again by narrowing the meaning to be given to 'employment' for the reasons previously outlined as above.
In summary, the Appellant submits that in respect of ground 1 the Tribunal erred in failing to find that within the meaning of ss 25(1)(b) and 49V(1)(b) of the ADA, there relevantly was a determination by the Respondent not to offer employment to the Appellant at the expiry of the relevant temporary contracts.

Ground 3

Ground 3 involves alleged errors on the part of the Tribunal in respect of the Appellant's case of indirect discrimination below.
Ground 3 concerns the submission that the Tribunal erred in its construction and application of ss 24(1)(b) and 49T(1)(d) of the ADA and the definitions of discrimination which are frequently referred to as 'indirect discrimination'. The Appellant submits that the Tribunal erred in failing to determine whether a 'requirement or condition' was imposed in accordance with the law.
According to the Appellant the assertion that she was not employed after the end of the relevant temporary contract does not mean the condition was not imposed at the times she sought further employment as pleaded and set out in her evidence. The two pleaded requirements or conditions alleged to be imposed by the Respondent were set out by the Tribunal at [385] and [386], which we have quoted above. The Appellant submits that the relevant requirement or condition was clear from the evidence. That is, the fact that the Appellant was unavailable to attend work at certain points in time (rather than being employed) was determinative of whether she was in fact offered work.
According to the Appellant, the Tribunal's dismissal of the indirect discrimination claims could only have been made on an incorrect application of the definition of 'employment' in ss 25 and 49V of the ADA as addressed previously by the Appellant. That is, the Tribunal supplanted the statutory test in relation to 'employment' with the concept of being available to 'work'.
According to the Appellant, the fact that when the Appellant was available to work, she was offered employment proves the Appellant's case that the only reason she was not offered further employment at the relevant times was because she was unable to work due to her confinement and caring responsibilities.
The Appellant in this regard submits that the Tribunal erred in fact and law by finding that the imposition of the requirement or condition was reasonable. The Appellant submits that it is an error of law to make the finding as to unreasonableness in circumstances where the Respondent never pleaded unjustifiable hardship or financial or another hardship: see s 49U of the ADA. The Appellant points out that such a defence is only available on the ground of caring responsibilities and not sex.
According to the Appellant, the Respondent did not plead that the requirement was reasonable, and the Respondent should be held to this pleading. Accordingly, the Appellant submits that the finding of the Tribunal as to reasonableness went beyond the case of the Respondent and the evidence available to it. In any event, the Appellant submits that there was no evidence that the Respondent was not able to deliver services as a result of the Appellant being offered further temporary contracts during which time she would take maternity leave.
According to the Appellant, the evidence of the Respondent's own witnesses was that: 1. No one at Legal Aid said that maternity leave was too expensive; 2. Paternity leave positions were backfilled when such leave was taken (and so there is no failure to deliver services); 3. Temporary employees are entitled to maternity leave as long as there is continuity of service; 4. If a temporary employee was on maternity leave, the position would be backfilled by another temporary employee whilst on such leave.
As a result, the Appellant submits that the conclusion of the Tribunal that it was reasonable not to offer the employment contended for by the Appellant in order to maintain service delivery was contrary to the evidence of the Respondent's own witnesses.
Further, the Appellant submits the Tribunal's findings as to reasonableness was a breach of procedural fairness in that it allowed the Respondent to change its case. Also, the Tribunal failed to deal with the Appellant's submissions in relation to the failure to plead to these matters.
Finally, the Appellant contends the conclusion of the Tribunal at [394] to the effect that unreasonableness could not be judged by reference to women who were full-time, involved legal error for the following two reasons: 1. The Tribunal erred by using the test for a comparator for direct discrimination to inform the assessment of reasonableness when that is no part of the test for indirect discrimination. Related to this was the fact that full-time female employees 'took all kinds of leave whilst employed' which was a factor irrelevant to determining reasonableness of the actual condition imposed which was that she not take parental leave; and 2. Failure in taking into account relevant evidence from Ms MacMillan that temporary employees with back to back contracts take maternity leave, which means that there was no cost consequences of any significance for the Respondent.

Consideration

Ground 1 focusses upon ss 25(1)(b) and 49V(1)(b) of the ADA which we have set out. We accept the broad thrust of the Appellant's submissions as to the nature of a contract of employment. In particular, we accept as the Appellant puts it that a contract of employment can exist for periods of time where an employee is not available to actually perform any duties: see Byrne v Australian Airlines Limited (1995) 185 CLR 410.
It follows that as a matter of law and in accordance with the proper construction of s 25(1)(b) and s 49V(1)(b), that it was possible for Legal Aid to offer the Appellant a contract of employment that would commence immediately upon the expiry of the relevant temporary contracts and would continue through a period of leave that the Appellant would take and then for a period of unpaid leave with a date of return to be agreed between the parties up until the mutually agree end period of the employment or pursuant to a continuous employment contract terminable upon notice by either side. We note that Legal Aid did not dispute this proposition.
We also accept that the evidence makes clear that the Appellant did seek a contract of employment of this nature commencing immediately after the conclusion of the relevant temporary contracts and that Legal Aid declined to offer such employment or contracts of employment to the Appellant.
In this regard, we are prepared to accept that the Tribunal may have erred or incorrectly understood the full breadth of the notion of 'offers of employment' that come within the statutory terms when at [248] the Tribunal stated that 'Legal Aid did not' determine 'that it would not offer temporary employment for any period as alleged in paragraph 27.a.'
However, we are not satisfied that any such error affected the ultimate result and dismissal of the complaint. This is particularly so in light of the fact that on appeal the Appellant only challenges the dismissal of her complaint on the grounds of indirect discrimination as set out in ground 3 of the appeal. To succeed on the appeal the Appellant must succeed on ground 3.
In this regard, firstly, the Appellant makes submissions on the nature of the case pleaded by the Respondent. We note that the Respondent in its defence denies all of the relevant aspects of the pleaded claim of indirect discrimination, including the allegation that the requirement or condition was unreasonable. Accordingly, it denied the assertion that the requirement or condition pleaded was unreasonable. Contrary to the thrust of the Appellant's case, in such circumstances the Appellant bore the onus of demonstrating that the alleged condition or requirement was not reasonable: see Wright v Commissioner of Police [2014] NSWCATAP 67 at [24].
Whether or not the Appellant has established that the alleged requirement or condition was unreasonable does not involve a question of law and leave to appeal the relevant findings of the Tribunal is required.
In our view, nothing arises from the mere fact that Legal Aid never pleaded 'unjustifiable hardship'. Unjustifiable hardship is a defence to carers discrimination if otherwise discrimination is established. It has nothing to do with the question of whether the requirement is 'not reasonable having regard to the circumstances': see s 49T(1)(b) of the ADA. The requirement of showing that the condition is 'not reasonable' falls on the Appellant to prove. In our view, nothing further was required in the pleading and it remained for the Appellant to demonstrate the lack of reasonableness of the relevant condition or requirement.
Further, we agree with Legal Aid's submission that no submission was made by the Appellant at first instance that somehow the question of reasonableness was not in play due to the pleadings. Accordingly, we reject the ground of appeal to the extent that it seeks to suggest otherwise.
Reasonableness was always in contention between the parties and was dealt with explicitly on the evidence lead by the parties. , We do not accept the proposition that the Appellant was surprised by the question of reasonableness, including the issue of service delivery, being treated as a live issue by the Tribunal.
In our view, the issues determined by the Tribunal in this regard were fairly open to it and were in play on the pleadings and the evidence. In this regard we note that the Appellant in fact made detailed submissions on the issue of reasonableness at [112] - [116] of her closing submission.
Ground 3 focusses upon the phrase 'to comply with a requirement or condition' ss 24(1)(b) and 49T(1)(b) of the ADA. The phrase 'to comply with a requirement or condition' imports the notion of compulsion or obligation: see Walker v State of Victoria [2011] FCA 258 at [189] - [194] per Tracey J. In addition, the requirement or condition must be explicitly exposed, or implicit in the conduct which is said to be discriminatory: see Waters v Public Transport Corporation (1991) 173 CLR 349 at 360 per Mason CJ and Gaudron J, at 393 per Dawson and Toohey JJ and at 407 per McHugh J.
The relevant requirement or condition was contained in the amended statement of points of claim at paragraphs 31 and 40 which we have quoted. The relevant findings of the Tribunal were at [387] and [389] as follows: 387 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. … 389 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.
Whether or not these findings of the Tribunal were open to it do not involve questions of law. The question is essentially one of fact - viz, whether or not in substance and in reality, on the evidence the relevant requirement or condition as pleaded was one truly imposed by the Respondent.
In our view, it was open to the Tribunal on the evidence to find that in both form and substance the Respondent was not imposing a condition or requirement to entering into a new contract of employment or to being offered a new contract of employment that the Appellant 'not take leave' on the grounds of her pregnancy or carer's responsibilities. Rather, we are satisfied on the evidence as a whole, that it was open to the Tribunal to find that the real requirement or condition being imposed was that the Appellant be ready, willing and able to perform the duties of a solicitor at the expiry of the temporary employment contracts in order to be issued with a new offer of employment and a new employment contract.
Accordingly, we are not satisfied that it is appropriate to grant leave to appeal in respect of this ground of appeal and we decline to grant such leave.
Whilst this is sufficient to dispose of the appeal as a whole, we make some brief observations on the balance of the Appellant's submissions which focus on the finding that the alleged condition or requirement was reasonable. The notion of reasonableness must take into account 'all the circumstances'. As Brennan J held in Waters at [378]: The imposition of a requirement or condition which satisfies pars (a) and (b) of s. 17(5) prima facie amounts to discrimination, but it falls into that classification only if the requirement or condition is not reasonable (38). It is not possible to determine reasonableness in the abstract; it must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which pars (a) and (b) of s. 17(5) would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.
Whether or not the findings of the Tribunal on reasonableness were open to it do not involve questions of law. We note the facts found by the Tribunal which were not in dispute on the evidence before it (see [107]-[121] parts of which we have quoted above) include: 1. The Appellant was first employed by Legal Aid on 21 May 2018, on a temporary contract. She was engaged to perform funeral insurance work in the Civil Law Service for Aboriginal Communities. 2. The Appellant's role was not funded and was outside the scope of Legal Aid's budget. Although Legal Aid was initially willing to go over budget temporarily, and extended the Appellant's contract on this basis, this was not a sustainable long-term solution. 3. By June 2019 it was apparent that the volume and complexity of the work was increasing. The unsatisfactory over-budget operation could not continue. Instead, Meredith Osborne - the relevant decision maker - reallocated existing resources by moving an existing permanent employee, John Moratelli, into the division effective July 2019. This did not involve Mr Moratelli taking the Appellant's role, but instead the reallocation of an existing permanent employee. The Appellant's role ended as a result. 4. Ms Osborne did not know that the Appellant was pregnant at that time. 5. Also around this time, the Appellant told a single employee, Jemima McCaughan, that she was pregnant, and asked her to keep it confidential. Ms McCaughan did so. She had no role in Ms Osborne's decision. 6. After this decision was made, and after Ms McCaughan was told of her pregnancy, Legal Aid extended her contract twice: 1. once from 2 July 2019 to 29 July 2019, to hand over to Mr Moratelli; and 2. after that, to 3 January 2020, working in the Human Rights Team to backfill an employee on leave. 1. The Appellant understood and accepted that her employment would end on 3 January 2020. In around November 2019, the Appellant formally disclosed her pregnancy to Legal Aid. At the time, she was entitled to 14 weeks paid maternity leave. 2. She requested that her contract be extended to allow her to take 14 weeks maternity leave from 3 January 2020. Legal Aid refused this on the basis that it did not engage people for the sole purpose of them taking leave (or have any existing practice of doing so), and instead only engaged people for the purposes of them performing necessary work. 3. The Appellant also requested that, at the commencement of her 'leave', she be offered a contract commencing in around September 2020. Legal Aid refused on the basis that it did not have a practice, and could not, offer temporary employment eight months in the future absent an identified position and available funding. 4. The Appellant also requested that her employment be converted to permanent employment under s.12 of the Government Sector Employment (General) Rules 2014. Legal Aid refused this on the basis that her role was to backfill a returning employee and thus was not eligible for conversion. 5. Ms Osborne understood the Appellant to be in substance proposing that Legal Aid create a role for her, for her to then immediately go on leave and the role remain vacant or be backfilled. Ms Osborne did not consider the arrangement to be feasible from a budgetary or operational perspective, or in the interests of Legal Aid or its clients. 6. The Appellant went on paid maternity leave on 6 December 2019. Her employment ended on 3 January 2020 by effluxion of time. 7. In February 2021, Ms Osborne - having been advised by he Appellant that she wanted to return part time in 'early 2021' - became aware of a part-time opportunity which would possibly suit the Appellant. She took steps to ensure that Legal Aid approached the Appellant directly about the role. The Appellant commenced employment on 23 February 2021. 8. Over time, the Appellant's contract was extended and her hours increased. By 1 August 2021 she was employed on a full-time basis in the Penrith Civil Law team to backfill a permanent employee on leave. Her contract ended on 7 January 2022. 9. On 8 September 2021, the Appellant advised Legal Aid that she was pregnant, and asked if she was eligible to take paid parental leave, stating that she would like to take some leave beginning 8 October and return to finish the balance of her contract. 10. Legal Aid advised the Appellant, correctly, that she had no entitlement to maternity leave under the relevant industrial instrument, but could take other forms of paid leave. 11. The Appellant took personal leave from October 2021. She did not return to work, and her employment terminated on 7/8 January 2022 according to the terms of her contract. 12. On 10 April 2022, the Appellant applied for an advertised position at Legal Aid. Following a comparative assessment, she was unsuccessful, but was placed in a talent pool and subsequently re-employed on 28 June 2022. At the time the matter was heard the Appellant remained an employee of Legal Aid, again on a temporary contract.
In this regard it is worth repeating the Tribunal's summary of Ms Osborne's evidence at [79] - [81] which the Tribunal accepted: 79 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. 80 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. 81 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.
In light of the above evidence and the Tribunal's acceptance of such evidence, it is plain to us that it was open to the Tribunal to find that it was reasonable of Legal Aid to require the Appellant to be available to work in order to have a new temporary contract bestowed upon her.
Accordingly, we decline to grant leave to appeal in respect of this ground of appeal.

Conclusion

Accordingly, leave to appeal shall be refused and the appeal shall be dismissed.
The orders of the Tribunal are: 1. Leave to appeal refused. 2. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2024

Anti-Discrimination Act 1997(NSW)

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Judgment (11 paragraphs)

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