Milica Stojanovic v The Commonwealth Club Limited [1995] IRCA 652

CATCHWORDS INDUSTRIAL LAW - termination of employment - review of decision of Judicial Registrar - whether employee dismissed because of pregnancy - whether employer established that pregnancy was not a reason. Industrial Relations Act 1988 - s170DF(1)(f), and s170EDA(2) Bowling v General Motors Holden Pty Ltd (1975) 8 ALR 194 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 No. AI267R of 1994 MILICA STOJANOVIC v THE COMMONWEALTH CLUB LIMITED MOORE J CANBERRA 8 DECEMBER 1995

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. AI367R of 1994 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: MILICA STOJANOVIC Applicant AND: THE COMMONWEALTH CLUB LIMITED Respondent JUDGE: Moore J PLACE: Canberra DATE: 8 December 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The order of the Judicial Registrar dismissing the application under s170EA be set aside. 2. The respondent pay the applicant the sum of $8,500. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. AI367R of 1994 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: MILICA STOJANOVIC Applicant AND: THE COMMONWEALTH CLUB LIMITED Respondent JUDGE: Moore J PLACE: Canberra DATE: 8 December 1995 REASONS FOR JUDGMENT Introduction On 6 June 1995 a Judicial Registrar dismissed an application brought under s170EA of the Industrial Relations Act 1988 ("the Act") by Mrs Milica Stojanovic ("the applicant") who claimed the termination of her employment by The Commonwealth Club Limited ("the Club") contravened a number of provisions of Division 3 of Part VIA of the Act. Mrs Stojanovic has sought a review under s377 of the Act of the determination of the Judicial Registrar.

The nature of the present review A review is a hearing de novo: Association of Professional Engineers, Scientists and Managers Australia v Deniliquin Council (1995) 129 ALR 418 and Gibson v Bosmac Pty Ltd (1995) 130 ALR 245. In appropriate circumstances, the review may be conducted on the basis that all evidence is called afresh and findings of fact made by the Judge without regard to the evidence led before the Judicial Registrar or findings made by the Judicial Registrar. In the present case the review was not conducted on that basis. In the hearing before the Judicial Registrar extensive affidavit evidence was adduced and oral testimony given. The Judicial Registrar made various findings of fact based on her assessment of the credibility of the witnesses and she did not accept some of the evidence of the applicant and her husband. In this review it was accepted by both parties that the review should be determined by reference to the affidavits and transcript before the Judicial Registrar. It was conceded by the applicant that I should accept the Judicial Registrar's adverse findings on her credit and that of her husband. In substance, I was invited by the applicant to deal with her application by reference to the Club's evidence at its highest at least in so far as it constituted proof of primary facts. That is, I am to accept the evidence of the Club's witnesses both in their affidavits and oral testimony and then proceed to determine whether on the primary facts they establish, the termination of the applicant's employment was in contravention of the Act. However I am not precluded from determining what inferences might reasonably be drawn from those facts: see e.g. Rennie v The Commonwealth Full Court of the Federal Court, 17 November 1995, unreported. The circumstances leading to the termination The following emerges from the evidence approached in the way I have just discussed. I have not endeavoured to record all the evidence but rather those parts of it I view as material. The Club is a private social club. The applicant was an assistant manager at the Club. Her duties included supervising the dining room and various functions held at the Club, rostering staff for the functions in the dining room, organising and overseeing functions at the Club and preparing accounts for both the functions and the members accounts for the dining room. On 16 September 1994 the applicant signed an employment contract with the Club which set out the terms and conditions of her employment. It read: "16 September 1994 Ms M Stojanovic 27 Hallen Close Swinger Hill ACT 2606 Dear Milica, Thank you for accepting our offer of Assistant Manager for The Commonwealth Club. It is with much pleasure I confirm the following terms and conditions of your employment. POSITION: Assistant Manager DEPARTMENT: Operations SALARY: $26,500 gross per annum, paid weekly into a bank account of your choice. Salary review is annual. HOURS OF WORK: Five day roster as determined by the Operations Manager. SUPERANNUATION: Contribution of 4% calculated on your gross weekly salary will be deposited into the Club Plus Scheme by the Club. You can make additional contributions if you wish. UNIFORMS: Prior to commencement we will outfit you with two new suits and accessories at the expense of the Club. These will be laundered at the Club's expense. MEALS: A complimentary staff meal is provided while you are on duty. Complimentary soft drinks are also provided. Meals may only be taken in the designated staff room. TERMINATION: In the event that either party should seek to terminate this employment arrangement, either party will give the other party four working weeks notice of their intentions. COMMENCE DATE: To be confirmed, subject to notice with current employer. Please advise us at your earliest convenience. It would be appreciated if you could sign the enclosed copy of this letter and return it to me as acknowledgment that you accept these terms. Please also find attached a copy of the current job description for your position to assist in understanding the responsibilities of your role. We are looking forward to you joining our team and making a contribution towards the continued improvements to the standards of service at The Commonwealth Club. Please do not hesitate to contact me personally should you have any inquiries about your appointment. Yours sincerely, (signature) (signature) Hugh Stowell Milica Stojanovic Secretary (Date 6/9/1994) It is to be noted that the letter provides for termination at the instance of either party on four weeks notice. The applicant commenced work at the Club on 20 September 1994. Her regular working hours were 3.00pm to 11.00pm. The applicant, it seems, fell pregnant prior to her commencing employment with the Club. However, she was not aware that she was pregnant until the beginning of November 1994 when her pregnancy was confirmed by her doctor. There is no evidence of any complaints or observations prior to 7 December 1995 of the applicant performing her duties incompetently or manifesting a hostile or aggressive manner at work. On 7 December 1994, at approximately 11.30pm the applicant visited her immediate supervisor Mr Dickie, the Operations Manager, to discuss the purchase of a second uniform for her. This was consistent with a term of her employment contract. During this discussion the applicant revealed she was pregnant. This was the occasion on which the Club was first given notice of her pregnancy. Her pregnancy emerged when Mr Dickie told the applicant the suit she had chosen was too expensive, and she said words to the effect: "I am going to need a new uniform - I am pregnant. I will start showing soon." Mr Dickie described the applicant's demeanour as "off-hand" at the time of this revelation. At 10.00am on Thursday, 8 December 1995 Mr Dickie informed Mr Stowell, the Club's Secretary, that the applicant was pregnant. Mr Stowell then immediately sought advice from the Confederation of ACT Industry "as to the legal and award obligations of the Club in order the explore the employee's options in light of the forthcoming confinement." Mr Stowell was advised by the Confederation that as there was a compulsory period of confinement, the applicant would have to take six weeks off work. This advice, in my view, is of some significance. It played a major role in causing Mr Stowell to make certain assumptions that moulded much of what he and others representing the Club did from that point on. In the review, counsel for the applicant asserted that the advice that the applicant would have to take six weeks off was wrong and this assertion was not put in issue by counsel for the Club. That assertion is, on the material before me, correct. Parental leave is a common feature of federal awards and a component of the standard maternity leave clause is that if maternity leave is taken then six weeks leave must be taken at the time of confinement: see Parental Leave Case (1991) 36 IR 1 at pp 10, 11 and 18 (clause A(3)). There is no evidence to suggest that the applicant's employment was regulated by a federal award. However the matter is dealt with by legislation of general application. Both s170KA together with Schedule 14 of the Act and the Parental Leave (Private Sector Employees) Act 1992 (ACT) ("the ACT Act") contain provisions of general application in the Australian Capital Territory concerning maternity leave. However neither would have applied to the applicant as each require, as a condition precedent to the entitlement to maternity leave, twelve months service. The ACT Act renders applicable to employment in the Territory the standard federal maternity leave award provision. As just discussed, if an employee is entitled to maternity leave, and takes it, the employee would be obliged to take six weeks leave at the time of confinement. Mr Stowell also sought advice from the Club's Treasurer, Mr Ledger. Mr Stowell, through Mr Dickie, then arranged a meeting with the applicant at the commencement of her shift that day. Mr Stowell intended the meeting to be an informal discussion of "the options" up until the period of confinement. He had three concerns prior to the meeting. First, that in being pregnant, the applicant would not be able to keep up with the physical demands of her job. Second, that the applicant was not entitled to maternity leave as she had not been in the Club's employ for at least twelve months and by leaving to have her baby she would be breaching the terms of her contract of employment. Lastly, he was concerned that the Club could not afford to have the applicant off for six weeks. At the commencement of the meeting with the applicant, Mr Stowell acknowledged that he had recently been made aware of the applicant's pregnancy. The applicant then stated words to the effect: "Yes, I am pregnant and I intend to keep working until the time of having the baby." In his affidavit Mr Stowell recounts their conversation in these terms: "I replied: "That's alright. I need to discuss the options available to you. When you leave to have your baby we will be unable to hold the position open for you." Mrs Stojanovic replied: "Why?" I said words to the effect: "When you go off to have the baby you will be breaking the terms of your employment. Milica, you are not entitled to maternity leave because you've only been here for three months and you have to be employed for a year before you are entitled to any maternity leave". I also expressed concern that the job requirements entailed her to spend a good deal of time on her feet, and there is always some physical demands such as moving tables and furniture. Ms Stojanovic said words to the effect that: "I will only have two weeks off to have the baby and I don't see what the problem is - there are no worker's compensation issues here." I reminded her that there is an obligatory post confinement period of six weeks. She then said in a raised voice, words to the effect that: "Your just trying to get rid of me - this is discrimination!" I asked Ms Stojanovic if she had been discriminated against. She said: "No, but I think I should have been able to wear tailored business pants to work." I said: "Milica, I'm just trying to make you aware of your rights as an employee." I then said words to the effect that: "I am concerned that I found out about this following a casual discussion with James (Dickie) over uniforms at 11.30pm last night?" Ms Stojanovic who was becoming increasingly aggressive replied, (screaming): "So, you found out - what's your problem! I could have left it." I asked Ms Stojanovic not to scream at me. I then said words to the effect: "Your job has a lot of physical demands. Maybe you could work up to say February/March and the Club could offer you a payment equal to the time you would have worked?". At this point Ms Stojanovic began crying and said: "I'm not saying anything unless my solicitor is here." I said: "That's not necessary." It was common ground that the applicant was visibly distressed and upset. Mr Stowell briefly left his office at her request to enable her to compose herself. When Mr Stowell came back the applicant asked to make a phone call and proceeded to rise from her chair to leave the room however, she twisted her foot and fell onto the floor. Mr Stowell went to his office door and asked Mrs Sullivan, his secretary, to assist her. In his evidence Mr Stowell said, and I must accept that: