Milica Stojanovic v The Commonwealth Club Limited [1995] IRCA 237

C A T C H W O R D S INDUSTRIAL LAW - termination of employment - employment contract - pregnancy INDUSTRIAL RELATIONS ACT 1988, ss 170DC, 170EA, 170DF(1)(f) BOWLING V. GENERAL MOTORS HOLDEN PTY LIMITED 8 ALR 197 MILICA STOJANOVIC -v- THE COMMONWEALTH CLUB LIMITED NO. ACT AI 267 OF 1994. Before : Linkenbagh JR Place: Canberra Date: 6 June 1995

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT AI 267 of 1994 MILICA STOJANOVIC - Applicant THE COMMONWEALTH CLUB LIMITED - Respondent MINUTE OF ORDER BEFORE: JUDICIAL REGISTRAR LINKENBAGH DATE: 6 JUNE 1995 PLACE: CANBERRA THE COURT ORDERS THAT: The Application be dismissed NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Court Rules.

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT AI 267 of 1994 MILICA STOJANOVIC - Applicant THE COMMONWEALTH CLUB LIMITED - Respondent BEFORE: JUDICIAL REGISTRAR LINKENBAGH DATE: 6 JUNE 1995 PLACE: CANBERRA REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 made on 29 December 1994 in respect of employment during the period 16 September 1994 to 15 December 1994, as Assistant Manager at the Respondent's premises at Yarralumla. The Respondent is a company limited by guarantee, and is a Private Social Club, having both male and female members. Both parties agreed that the work environment was very pleasant and amicable, and one witness described it as "Utopia". I find the facts which are relevant to the termination as follows: 1. The terms of the Applicant's employment are set out in a letter dated 16 September 1994. Her supervisors were Mr Dickie, the Operations Manager, and the Secretary, Mr Stowell and she worked in the dining and functions areas at the Club . 2. The agreement provides for termination of the employment arrangement by either party on four working weeks notice to the other party. 3. The Applicant fell pregnant and her pregnancy was confirmed by her Doctor in the first week of November 1994. 4. The Applicant did not inform her employer of her pregnancy until 7 December 1994. 5. On 7 December 1994, at about 11.30pm, during a conversation about her uniform, the Applicant told Mr Dickie that she would need a new uniform soon, as she was pregnant. Mr Dickie described her manner as "off the cuff". 6. On 8 December 1994, Mr Dickie informed Mr Stowell of the fact that the Applicant was pregnant and Mr Stowell arranged a meeting with her. Mr Stowell consulted the Club Treasurer and the Club's Employer Organisation before the meeting. 7. Mr Stowell's intention was to discuss options, given that the Applicant was not entitled to maternity leave, and the terms of the employment contract. 8. The Applicant's intention was that she would work up to her confinement, then have two weeks off, and return to work. Her reaction to matters raised by Mr Stowell was to raise her voice and accuse Mr Stowell of trying to "get rid of" her, and "discrimination". The Applicant mentioned that a decision not to allow her to wear trousers to work was also discriminatory. Mr Stowell attempted to continue the conversation and her response was to begin crying, interrupt him and scream at him. She asked to be able to contact her husband, and Mr Stowell offered her the use of a private room. 9. As she left the room, the Applicant lost her footing on the carpet. Mr Stowell asked his Secretary to assist her. 10. Mr Stojanovic arrived a short time later and there was a meeting between Mr Stojanovic, Mrs Stojanovic, Mr Stowell and Mr Dickie. Mr Stowell provided an informal setting, and refreshments. 11. The Applicant's husband initiated the conversation with a reference to "the Club's intention to terminate my wife" and the pregnancy, and said he would involve the media, publicity, Parliament and a man called Dennis Martin. Mr Stojanovic referred to the issue of his wife's not being allowed to wear trousers to work, and he also told Mr Stowell that he had made "the biggest mistake of your life". Mrs Stojanovic also mentioned Mr Martin's name. Mr Stowell re-stated his intention to "explore options". The Applicant and her husband were described by Mr Stowell and Mr Dickie variously as threatening, loud, agitated and aggressive. No progress was made with the discussions, and there was no outcome. 12. The Applicant's next day at work was 12 December 1994. Her manner towards Mr Stowell was angry and abrupt, and Mr Stowell sought assistance from Committee members. The Club determined to have a further meeting with the Applicant, involving Committee members, because of the apparent breakdown in her relationship with Mr Stowell and Mr Dickie. 13. On 13 December 1994, a meeting took place between the President, Mr Campbell, the two Vice-Presidents, Mr Finlayson and Mr Nattey, Mr Stowell and the Applicant and her husband. 14. The Club's view, stated by Mr Campbell at the meeting, was that it wished to "resolve the issues and get on with working". The Applicant's manner was aggressive and she responded with remarks that Mr Stowell had treated her "like a dog" and that the Club was "full of discrimination". There was discussion about the physical demands of the Applicant's job, and her ability to continue to perform her duties, and possible solutions. Mr Finlayson identified the lack of an "amicable working relationship" between the Applicant and management. Mr Campbell determined that the relationship had broken down. 15. The 13 December 1994 meeting concluded after the Club had made an offer of payment of monies to the Applicant, which her husband agreed she would consider. 16. On 14 December 1994, the Applicant came to work and was told she could take paid, rostered days off until the matter was resolved. Her response was "Are you terminating me?" 17. Before the Applicant left the workplace, her husband telephoned Mr Stowell's secretary. He mentioned having "the media and feminist groups" at the Club if Mr Stowell did not return his call, and that if his wife's job was terminated he would "take it that it was because she was pregnant". Mr Finlayson returned the call and Mr Stojanovic argued with him about the issue, but agreed to come and pick his wife up from the Club. 18. On 15 December 1994, the Club wrote to the Applicant in the following terms: "At our meeting at the Club on Tuesday, 13 December 1994 with you and your husband it became very clear indeed that there is no likelihood of there being an amicable and compatible working relationship between you and the Club management. For that reason, and that reason alone, the Club has decided to invoke the terms of your signed employment agreement and to terminate your employment on four working weeks notice. Termination will be effective from today and you will be paid four weeks wages in lieu of notice. In response to your husband's letter dated 12 December 1994 and received by the Club Secretary yesterday, I reiterate that at no time has the Club indicated to you that your employment was in jeopardy or would be terminated because of your pregnancy. What you were told is that as you would not have been employed by the Club for 12 months at the time the baby is born, you would not be entitled to maternity leave and when you left the Club's employ, by breaking your employment agreement, to have the baby, the position would not be held open." The four weeks pay in lieu of notice was paid. 20. On 19 December 1994, an article was printed in the Canberra Times, instigated by the Applicant. 21. On 20 December 1994, the Club withdrew its offer of settlement. These findings of fact are made, having considered all of the evidence. Where there are differences between the evidence of the Applicant and her witness, who was her Husband, and the witnesses for the Respondent, I prefer the latter. The evidence of the Respondent's eight witnesses was consistent. I find the Applicant and her husband prone to understatement, omission or denial of parts of the evidence which were unfavourable to her. One example is their denial of any display of anger or aggression on their part at the two meetings they both attended at the Club. Another is their denial that they made any threats, particularly the threat to involve Mr Martin. Mr Stojanovic agreed that he knew Mr Martin, but denied using his name as alleged by witnesses for the Respondent. Those witnesses had no independent knowledge of any relationship between Mr Stojanovic and Mr Martin and I accept their evidence that the only reason they knew that Mr Stojanovic knew Mr Martin, was because Mr and Mrs Stojanovic mentioned Mr Martin's name at the meeting. I accept that the threat to involve Mr Martin was made, and it follows that I accept the evidence of other threats. One of those, being to involve the media, was put into effect by the Canberra Times article. The Applicant argues that her employer breached Section 170DF(1)(f) of the Act, in that the reasons for the termination of her employment included pregnancy. The onus is placed on the employer to prove to the satisfaction of the Court that the pregnancy was not such a reason. The civil standard applies. Counsel for the Respondent referred me to Bowling v. General Motors Holden Pty Limited 8 ALR 197 and I follow the opinion of Smithers and Evatt JJ, at page 200, that for a factor to operate as a reason which motivated the employer, the factor must be a substantial and operative factor actuating the action of the employer. I am not satisfied on the balance of probability that the Applicant's pregnancy was a substantial and operative factor in the termination of this employment contract. There is no doubt that in the perception of the Applicant and her husband, her employment was terminated because of her pregnancy. Her immediate reaction to the raising of the issue of the necessary disruption to her ability to perform her employment contract by Mr Stowell, on 8 December 1994, was in terms of getting rid of her, and discrimination. Her husband's initial contact on 8 December 1994, was in terms of terminating the employment, and the pregnancy, a perception which he gained from the Applicant's initial reporting to him of her first conversation with Mr Stowell. In paragraph 2 of his Affidavit, Mr Stojanovic reports that his wife "told me my job is in jeopardy because I am pregnant." This perception induced the threats and aggressive attitudes of the Applicant and her husband on 8 December 1994. Mr Stojanovic's letters of 12 and 15 December 1994, repeat his perception of his wife's employment being in jeopardy because of her pregnancy, as does the conduct of Mr and Mrs Stojanovic at the meeting on 13 December 1994. I find that the perceptions of Mr and Mrs Stojanovic were not reasonably based, and caused them to be unable to appreciate the matters and options which Mr Stowell and the Board members attempted to put to them. Their perceptions led to their becoming frustrated and angry, and their exhibitions of anger and aggression towards Mr Stowell and the Board members gave rise to the opinion formed by Mr Campbell and Mr Finlayson on 13 December 1994, that the relationship between the Applicant and management, had broken down. Further consideration of any option which included continuation of the employment contract was thereafter precluded. That opinion was the reason expressed in the Club's letter of 15 December 1994, for the termination of the employment contract, and I accept that that was the only reason for the termination of the employment. It is true that the fact of the pregnancy was the catalyst for the concern of the Club about the Applicant's ability to perform her employment contract, and that the events of 7 December 1994 to date, would not have occurred but for the Applicant's informing Mr Dickie of her pregnancy on 7 December 1994. It was reasonable for the Club to consider the consequences for it of any inability of the Applicant to attend to her duties, whatever the reason for such inability. The Club did so promptly and attempted to involve the Applicant in discussions about the implications of her pregnancy for her employment relationship. The conduct of the Applicant, which includes the conduct of her husband, caused the matter to take a course which ultimately led to the breakdown in the relationship between the parties. It is noted that the Club maintained its attempt to deal with the situation in an amicable fashion by the offer of money to the Applicant. That offer was withdrawn only after the Applicant caused the publication of the article in the Canberra Times, which evidences the perceptions of the Application and the total breakdown in her relationship with the Club. The Applicant also alleges a breach of Section 170DC of the Act, in that she was not given the opportunity to defend herself "against Mr Stowell's allegations". I do not agree. The Applicant had every opportunity to be informed of the concerns of her employer but her preconceptions inhibited her from considering in a reasonable manner, the matters which were put to her by Mr Stowell. His attempts to engage her in discussion of available options on 8 December 1994, fell on deaf ears, as did the Committee's efforts at the meeting on 13 December 1994. For these reasons, I do not find any breach of the Act by the Respondent, and I dismiss the application. It is therefore not necessary for me to refer to the evidence as to an appropriate remedy. I certify that this and the preceding 9 pages are a true copy of my reasons for judgment. Judicial Registrar Linkenbagh. Date: Solicitor for the Applicant:Ms.T. Kyprianou Pamela Coward and Associates Counsel for the Respondent: Mr. F.J. Purnell Representative of the Respondent: Confederation of A.C.T. Industry Date of hearing: 9 May 1995 Date of judgment: 6 June 1995