Legal Services Division CITATION: Johnstone -V- N S W Tafe Commission (Hunter Institute Of Technology) (No. 1) [1996] ADT COMPLAINANT: Amanda Johnstone RESPONDENT: N S W TAFE Commission (Hunter Institute of Technology) Ms Narelle Bell ( Judicial Member ) TRIBUNAL: Mr N Lacey Mr N Rogan GROUNDS OF COMPLAINT: Discrimination on the ground of sex (pregnancy) in the area of education DATE OF JUDGMENT: 11/26/1996 Complainant: Andrew Thorpe Solicitors (Solicitors) Ms F Davis (Counsel) LEGAL REPRESENTATIVES: Respondent: State Crown Solicitor's Office (Solicitors) Mr M Dicker (Counsel) The Tribunal has decided to grant the Respondent's application and our reasons are as follows. The Respondent has made an application to the Tribunal to dismiss the Complainant's complaint under section 111 of the Anti-Discrimination Act 1977. The Respondent submits that the complaint is misconceived or lacking in substance. Section 111(1) provides: "where at any stage of an inquiry the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance or that for any other reason the complaint should not be entertained it may dismiss the complaint." The Tribunal has had regard to a number of decisions, some cited by counsel for the Complainant, some not. Those cited by counsel for the Complainant included Yarran & Anor v Westpac Banking Corporation 1992 EOC 92 440, Sam Barakas v CSIRO 1992 EOC 92 411, Duggan v Shore Inn 1992 EOC 92 457 and Hill v University of New England 1990 EOC 92 291. The Tribunal has also noted the submission by counsel for the Respondent, that an application under section 111 should be likened to an application to strike out and that the relevant question to consider in such an application is whether the Complainant has presented any evidence which, if accepted and not later controverted, could establish a prima facie case. The Tribunal has also had regard to the decision of the President of the Human Rights and Equal Opportunity Tribunal, Sir Ronald Wilson, in Assal v Department of Health, Housing and Community Services 1992 EOC 92 409, in which he said, in relation to similar provisions in the Racial Discrimination Act 1975, "It is unwise to postulate any rules intended to guard the exercise of the power in question. That exercise must be governed by the words of the statute itself and the content of the particular circumstances of the case." In that case, as in this one, all of the Complainant's evidence had been heard and the President suggested, "It may sometimes be sufficient once the Complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer by the Respondent." It is noted that pursuant to the amended points of claim the Complainant complains that the Respondent: (a) terminate the Complainant's employment on the grounds of her pregnancy; (b) imposed a requirement or condition on the Complainant that she not be pregnant in order to continue her employment; and (c) imposed requirements or conditions that the Complainant be classified as a casual worker on the grounds of her pregnancy and that her job classification be changed on the grounds of her pregnancy. It appears to the Tribunal that the last two of these points of claim are intended to be framed as indirect discrimination. However, as drafted, they appear to fit more comfortably within the direct discrimination provisions of the Act. The Tribunal has, however, carefully considered both the direct and indirect discrimination provisions of the Act in the context of the Complainant's evidence. The Tribunal in reaching its decision has, for the purpose of this application, accepted the Complainant's evidence in full. That evidence in summary is: The Complainant had worked as a clerical officer employed by the Respondent since 1989. She took maternity leave in 1990 for the birth of her first child and returned to her duties - continuing a job share arrangement with another employee. A number of hours to be worked by the Complainant was limited to 910 per year but the number of hours to be worked in any fortnight could vary according to the officers' demands on her time. The Complainant's hours worked in any fortnight were checked and approved by the Complainant's supervisor, the Head Teacher. From 1989 to early 1991 the Complainant's supervisor was Mr Malone. From that time Mr Gresham replaced Mr Malone. In about April 1992 Mr Webster became the Complainant's supervisor with Mr Lee. In March 1992 the Complainant became pregnant with twins following treatment on the IVF program. That treatment had caused her some illness. The Complainant told a number of teachers, including her then supervisor, Mr Gresham, and Mr Lee about her pregnancy. Mr Lee said to the Complainant, after she had told him she intended to take a break to have the baby, "You won't be back. You won't have time to work." In May the Complainant attended the administration office of the Respondent and asked a Ms Bristoe to work out her holidays. The Complainant said, "What about maternity leave?" The Complainant does not know whether Ms Bristoe answered her question but she heard a voice say, "No." She does not know whose voice it was. The Complainant then said, "Don't worry, I have got plenty of holidays and what about sick leave?" She was told by Ms Bristoe that she could use her sick leave as long as she has a doctor's certificate. A few weeks later the Complainant was advised by Ms Bristoe's replacement that she was classified as a seasonal employee and ineligible to take and accrued holidays. She spoke to her job counter-part, who, after some inquiries, advised the Complainant that the reclassification meant that the Complainant would get more money. On or about 13 October 1992 the Complainant was told by Mr Webster, her then supervisor, that she had used too many hours, that he had to obtain a further 51 hours from another course and that the Complainant would have to finish on 15 October. The Complainant left on 15 October, having received on that day a letter from Mr Dark, human resources officer, noting the reclassification of the position. On 16 October 1992 the Complainant was advised by her job counter-part that neither she nor any other employee was required to re-apply for their job. On 11 December 1992 the Complainant was asked by Mr Webster to return her key and he again stated that she had misused her hours. On 28 December 1992 the Complainant was advised by Mr Dark, Human Resources Officer, that her employment had been terminated because she had misused her hours. This advice was confirmed by Ms Bosch, Human Resources Officer, on 29 December 1992. After seeing an advertisement on 22 January 1993 for "TAFE temporary clerical staff part-time/full-time" the Complainant applied for a position. After obtaining some temporary work with the TAFE Inquiries Hot Line the Complainant met with Ms Bosch, who advised the Complainant that she was no longer suitable for the position and that circumstances had changed. The Complainant was later interviewed for a position and was also later advised that she had been placed on an eligibility list. On learning that another person was given her previous job she inquired of Ms Bosch and was told by her that this person was ahead of the Complainant on the list of eligible applicants. The Complainant was later offered two positions by TAFE, which she was unable to take up because of child care difficulties. Mr Meehan, who was Registrar of the Hamilton College of TAFE from 1989 to 1994 gave evidence for the Complainant, that in 1990 when the Complainant was pregnant with her first child, Mr Malone, her then supervisor, told him that the Complainant was pregnant and would not be available to work and that he wanted to organise a replacement. When Mr Meehan suggested that the Complainant may be entitled to maternity leave, Mr Malone indicated that he wanted to replace the Complainant. The Complainant's evidence was that Mr Malone returned in early 1993 as the supervisor of the position previously held by her. Prior to that he had not been the position supervisor for some time. We turn now to the relevant provisions of the Act. Section 24(1) of the Anti Discrimination Act, as it was at the time of the conduct complained of, provides that unlawful discrimination on the ground of sex occurs when a person is treated less favourably than a person of the opposite sex in the same or materially the same circumstances on the ground of the person's sex or on the ground of a characteristic that appertains generally to the person's sex. Section 24(1)A has the affect of recognising pregnancy as a characteristic that appertains generally to women, and section 24(2) qualifies the impact of a woman's pregnancy on the issue of whether the circumstances of the person discriminated against are the same or materially the same as those of a real or notional comparable man. Section 24(3) deals with indirect discrimination and provides that discrimination occurs when a requirement is imposed on a person: (a) with which a substantially high proportion of persons of the opposite sex comply or are able to comply; (b) which is not reasonable in the circumstances; and (c) with which the Complainant does not comply or is not able to comply. Section 25 of the Act proscribes discrimination on the ground of sex in certain aspects of work, including offers of employment, terms and conditions of employment and dismissal. The detriment complained of by the Complainant is that she was made to leave work one week earlier than she had planned, that she was made to apply for her job and that her position was reclassified. It is inherent in her claim that she was made to suffer these detriments on the ground of her sex and in particular her pregnancy. As to her termination one week before she was due to leave, the Complainant has offered as evidence of discriminatory motive only the single comment of Mr Lee to the effect that she won't be back because she won't have time to work. She has also provided evidence that she was told on a number of occasions by her supervisor, Mr Webster, and by Human Resources Officers, Mr Dark and Ms Bosch, that her employment was terminated because she had worked more than the hours necessary; that is, that she had misused her hours. The Complainant denied this misuse of hours but agreed that for the remaining 10 weeks of the year she had left only 67 hours; that is an average of 6.7 hours per week. As to being required to re-apply for her job, the Complainant has presented no evidence that this requirement was imposed, as alleged in her points of claim, on the ground of her sex. It was her evidence that in January 1993 she saw an advertisement for "TAFE temporary clerical staff part-time/full-time". This suggests that a number of positions were advertised to be filled. It was not suggested by the Complainant that the previous incumbents of all of these positions were pregnant. As to the reclassification of her position, the Tribunal notes that in cross-examination the Complainant accepted that the reclassification was appropriate and resulted in higher pay. This acceptance by the Complainant may not have applied to that aspect of the reclassification that rendered the position seasonal or casual. Again, the Complainant has offered no evidence to support her claim that this action was taken by the Respondent on the ground of her pregnancy. The Tribunal notes that the Complainant exhibited to her affidavit of 7 March 1996 a letter from Mr Dark dated 15 October 1992, which advised the Complainant that the position she held had been reclassified, that her salary had been increased from 28 May 1992 and that the organisation's "staffing profile" was being restructured. No evidence of any alternative reason for reclassification has been produced by the Complainant. In the Tribunal's view the evidence produced by the Complainant fails to show a causal link between the Complainant's gender, and in particular her pregnancy, and the conduct by the Respondent which she complains of. If it is the case that the Complainant is alleging indirect discrimination on the part of the Respondent by imposing requirements or conditions on her, she has on her evidence failed to indicate that those requirements or conditions were in existence, were unable to be complied with or were not complied with by the Complainant, were unreasonable in the circumstances and were such that a substantially high proportion of persons of the opposite sex complied or were able to comply. The Tribunal, therefore, finds the complaint to be lacking in substance and dismisses the complaint pursuant to section 111(1) of the Act. 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