Cook v Commanding Communications Pty Ltd and Ors [2013] QCAT 24

CITATION: Cook v Commanding Communications Pty Ltd and Ors [2013] QCAT 24 PARTIES: Lisa Jean Cook v Commanding Communications Pty Ltd Karen Maree Davies Stanley Joshua Rushton APPLICATION NUMBER: ADL020-12 MATTER TYPE: Anti-discrimination matters HEARING DATE: 30 November 2012 HEARD AT: Townsville DECISION OF: Wayne Pennell, Member DELIVERED ON: 23 January 2013 DELIVERED AT: Townsville ORDERS MADE: The application is dismissed. CATCHWORDS: Discrimination – Pregnancy – Dismissal – Unfavourable Treatment – Direct Discrimination APPEARANCES and REPRESENTATION: APPLICANT: Lisa Jean Cook – self represented RESPONDENT: First Respondent – represented by second and third respondents Second Respondent – self represented Third Respondents – self represented REASONS FOR DECISION The parties [1] The applicant is Lisa Jean Cook (“Ms Cook”). The respondents are Commanding Communications Pty Ltd (“the company”), Karen Maree Davies (“Ms Davies”) and Stanley Joshua Rushton (“Mr Rushton”). [2] The company operates a business in Townsville and trades under the name of Business Technology Centre. Ms Davies and Mr Rushton are Directors of the company. -- 1 of 11 -- 2 [3] Ms Cook was employed on a casual basis by the company from 31 October 2010 until 15 June 2011. The complaint [4] Ms Cook alleges direct discrimination against her pursuant to section 15(1) of the Anti-Discrimination Act 1991 (“the Act”) and that each of the respondents breached the Act on 15 June 2011 by dismissing her because of her pregnancy. [5] On 31 August 2010 Ms Cook commenced working for the company. She was employed as a casual employee and her position was described as a Telesales Person. She was responsible for many different duties including sales support, sales appointment making, reception duties and filing. During her employment, Ms Cook‟s hours of work changed regularly to accommodate public holidays and other staff absences, as well as to suit her family situation. [6] On 31 May 2011 Ms Cook went to the Townsville Hospital with pregnancy related complications. When she returned to work on 2 June 2011 Ms Davies and Mr Rushton told her to “take it easy”. [7] Later that day she spoke with a customer and became upset because of the way the customer spoke to her. She reported this to Mr Rushton. Ms Cook alleges that Mr Rushton “brushed off” the incident and said that there was no reason for Ms Cook to be concerned about the customer. [8] On 3 June 2011 Ms Cook experienced an incident with a fellow staff member that reduced her to tears. Because of her emotional state, she was advised by Ms Davies to go home and take the rest of the day off. [9] On 7 June 2011 Ms Cook alleges that a conversation took place between herself and Ms Davies where she was told that there would be a reduction in her work days due to a concern that work was placing stress on her pregnancy. [10] On 7 June 2011 discussions took place between Ms Cook and Ms Davies about the reduction of the number of hours of work that were available for Ms Cook. An agreement was reached that Ms Cook would work three days per week and if Ms Cook felt stressed in the workplace she would advise Ms Davies of this and her working days would be reduced down to two days per week. [11] On the afternoon of 14 June 2011 Ms Cook had a discussion with Mr Ian Moss (“Mr Moss”), the company‟s Sales Manager. They spoke about relocating Ms Cook and the computer on her desk to another position within the office to make way for new staff that were due to commence work in the very near future. [12] Ms Cook was upset that she was being moved from the desk which she had occupied the previous 10 months to make way for the new staff. Ms -- 2 of 11 -- 3 Cook asked Mr Moss if he could let her know when she was being moved so that she could prepare herself emotionally for the move. [13] When Ms Cook arrived for work the following morning (15 June 2011), she discovered that the computer that she had been using had been moved to the front office reception desk. She almost immediately broke down in tears. [14] None of her personal items had been moved from her desk and she went to retrieve them. In an emotional state, with tears streaming down her face she gathered her personal belongings and in doing so slammed the drawer on her desk. [15] Shortly afterwards she was spoken to by Ms Davies and Mr Rushton. Her employment with the company ended on this day. [16] On 22 June 2011 the company advertised a full time position within the Sales Support Team of the company. [17] Ms Cook lodged a complaint with the Anti-Discrimination Commission on 11 July 2011 and the matter proceeded to a hearing on 30 November 2012. The Act [18] The Act prohibits discrimination on the basis of a number of listed attributes. Relevant to this proceeding, section 7(1)(c) of the Act provides as follows: 7(1) The Act prohibits discrimination on the basis of the following attributes: (c) pregnancy. [19] The Act further expands and explains at section 8 the manner in which the Act comprehends discrimination on a prohibited basis. It reads as follows: 8. Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of- (a) a characteristic that a person with any of the attributes has; or (b) a characteristic that is often imputed to a person with any of the attributes; or (c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or (d) an attribute that a person had, even if the person did not have it at the time of the discrimination. [20] Direct discrimination is explained in section 10, which reads: -- 3 of 11 -- 4 10(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. 10(2) It is not necessary that the person who discriminates considers the treatment is less favourable. 10(3) The person's motive for discriminating is irrelevant. 10(4) If there are two or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. [21] Apart from being prohibited on certain grounds, discrimination is prohibited in certain areas of activity. That is, to be unlawful, discrimination must be on the basis of one of the attributes set out in section 7 of the Act; must be either direct or indirect discrimination; and must take place in one of a number of defined areas of activity. [22] The Act also makes provisions for certain exemptions that make activity otherwise prohibited not unlawful if a respondent can establish that one of the exemptions is applicable. [23] For the purposes of this particular matter, the relevant area of activity applicable to the applicant‟s complaint falls within the definition of section 13(1) of the Act. Following this, section 15(1)(c) of the Act is also relied upon for the complaint. 15(1) A person must not discriminate – (c) in dismissing a worker. [24] The Tribunal is guided by a number of provisions of the Act relevant to how the Tribunal is to approach its task of determining complaints. Section 204 provides guidance relating to the provisions of the burden of proof. 204. It is for the complainant to prove, on the balance of probabilities, that the respondent contravened the Act, subject to the requirements in sections 205 and 206. [25] The Tribunal has broad discretion in the way in which it is to inform itself with regard to the factual matters raised by the applicant. Section 208 provides as follows: 208(1) The Tribunal is not bound by the rules of evidence and - (a) may inform itself on any matter as it considers appropriate; and (b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form. -- 4 of 11 -- 5 [26] The Act provides that the tribunal has to determine whether or not the applicant has proved her case to the requisite standard, and reasonably satisfied the tribunal that the respondents contravened the Act, subject to the requirements of sections 205 and 206. [27] The definition of “reasonable satisfaction” was discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 by Rich J that1 – The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, a close examination of facts proved as a basis of inference in a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. Dismissal because of Pregnancy [28] Ms Cook told the tribunal – Mr Rushton and Ms Davies claim that throughout the course of my employment and on the day of my termination, that no comments were made to me in relation to my pregnancy by either of them except to congratulate me. If that were true, I would not be sitting before you today. This comment will be revisited later in this judgement. [29] From the evidence presented to the tribunal, the only people privy to any conversation surrounding why Ms Cook‟s employment with the company was terminated were Ms Cook, Ms Davies and Mr Rushton. [30] Apart from their evidence, the tribunal was significantly assisted by the evidence of Ms Vicki Caldwell (“Ms Caldwell”). Ms Caldwell [31] Ms Caldwell is a former employee of the company and was employed at the same time as Ms Cook. [32] Ms Caldwell recalled the morning of 15 June 2011. She (Ms Caldwell) was already at work when Ms Cook arrived at work. The computer that Ms Cook had been using in the course of her duties had been moved sometime during the previous night to a new location within the reception area. [33] Ms Caldwell recalled that Ms Cook was a “little upset” because her computer had been moved and she “wasn't happy” about having to move from one office to another. She said that she (Ms Caldwell) went about her normal duties as things were “pretty busy” on that morning. [34] Ms Caldwell remembered Ms Cook retrieving her personal items from her old desk and moving them to the new desk, but she (Ms Caldwell) denied the suggestion put to her by the respondents that there was a commotion 1 At p 350. -- 5 of 11 -- 6 caused by Ms Cook because she (Ms Cook) was slamming drawers and dropped an arm full of material onto a table. [35] Having consideration to the description that Ms Caldwell gave about how busy it was that morning, it is possible that she (Ms Caldwell) may not have witnessed what Ms Davies described about Ms Cook‟s behaviour and it does not rule out that Ms Cook may have reacted in the manner as described by Ms Davies given her emotional condition when she discovered that „her‟ computer had been moved without being properly consulted. [36] Ms Caldwell recalled Ms Davies calling Ms Cook into her (Ms Davies‟) office, and a short time later Ms Cook came out and said to her (Ms Caldwell) “I‟ve just been sacked”. She recalled that Ms Cook was crying and upset when she said this. There is no suggestion by either Ms Caldwell or Ms Cook that Ms Cook said anything about being told by Ms Davies that she was dismissed because she was pregnant. [37] Ms Caldwell also gave evidence of later seeing an advertisement soon after Ms Cook‟s dismissal for a “full-time” position within the company. She concluded that the advertisement was for the same position that Ms Cook had occupied during her employment and she later provided this information to Ms Cook. [38] Ms Caldwell said that with regard to her own role within the company she was not privy to everything that was happening within the office but was aware that during her employment there had been a significant turnover of staff. [39] Ms Caldwell and Ms Cook are close friends and it was Ms Caldwell who provided Ms Cook with evidence in the form of emails to support the application, that is, the company‟s organisational chart and the e-mail sent by Mr Moss on the morning of 15 June 2011. [40] Because of that close association between them, Ms Cook contacted Ms Caldwell on 27 January 2012 by email titled “Termination information”. In that email Ms Cook requested assistance from Ms Caldwell in providing evidence against the respondents. [41] It appears from the contents of the opening paragraph of that email that there had been some prior discussion between them about Ms Cook's application because she (Ms Cook) commented “As you know I have lodged paperwork for a discrimination case against Karen and Josh”. [42] The email response by Ms Caldwell to Ms Cook is significant with regard to Ms Cook‟s application that she was dismissed because she was pregnant. In reading Ms Caldwell‟s response to Ms Cook there is no mention or suggestion that she was discriminated against when she was dismissed, and there is certainly no mention or suggestion that Ms Cook was dismissed because she was pregnant. -- 6 of 11 -- 7 [43] It seems that Ms Caldwell‟s recollection of the relationship between the respondents and Ms Cook is different to that which Ms Cook suggested that it was. In her response to Ms Cook, Ms Caldwell wrote in her email – My recollection of the morning was, it was very busy prior to you coming in approx 30 mins after me (you started at 9am), I at 8:30. You came behind my desk, I then noticed your PC there, you seemed upset and said that you knew they would move you without discussing it. The events at the start of the sort out you (sic) paperwork and arrange the desk. At this time you were crying and yes, talking quietly about being unhappy the way things were moved without consultation. Karen then asked to talk to you. When you came out of the office and said you had been sacked, I was surprised and upset for you. I had not expected this as Josh and Karen had said constantly that you were a great asset and worker. I also remember that the week before, Josh had assured you that you would be welcome to work until you are ready to go on maternity leave. [44] At the hearing, Ms Davies, under cross-examination from Ms Cook, said2 – You were not sacked, Lisa, because there was no work for you. I wanted to reduce your work to two days a week for a few weeks because there wasn’t enough work, but that’s not why you were sacked. I still needed a sales support person, and that’s when this ad was placed. I’ve already gone to great lengths to explain why we decided to change the position, so I don’t understand the relevance of why I didn’t word it a little bit differently. [45] Ms Davies went on the further say – I will explain it to you again. I wanted to reduce your hours to two days a week until the new salespeople that came on board were able to go to appointments which would have made work for you. That was going to take time. A lot of them weren’t even – there was one. When you were let go there was actually one on board. There were another four to come over the next five weeks, and they were going to take two to three weeks minimum before they were able to go out there on sales. So we’re looking at six weeks before I’ve got anyone going on outbound sales, any number of people where I would require you to make appointments for those people. Now, you were let go the next day because of your bad attitude and the way you carried on, not because there was not enough work. That was not why you were let go. I still needed someone to do your job. The reason this was advertised almost immediately was I then needed to train somebody to do that job, because you were gone and all of your expertise in that area was gone, so not only am I training the salespeople to get them up to speed, I needed to train the sales support person. [46] It appears from the evidence of Ms Davies that there were discussions a short time prior to 15 June 2011 between her and Ms Cook that Ms Cook would continue to work for the company. This factor is uncontested by Ms 2 Transcript at pp 113-114. -- 7 of 11 -- 8 Cook and it also uncontested that Ms Davies was well aware of Ms Cook‟s pregnancy at that time. [47] Weighing against Ms Cook‟s allegations that the respondents intended to dismiss her because of her pregnancy are the uncontested facts that discussions were entered into between her and her employer to the contrary. [48] Returning now to paragraph [28] and the comments by Ms Cook. It is unclear as to why Ms Cook relies upon that particular statement as she accepted during the hearing that the respondents did not say to her, or indicate in any other way or means that her employment with the company was terminated because she was pregnant. [49] Ms Cook was cross examined by both Mr Rushton and Ms Davies about her allegation that she was dismissed because she was pregnant. In an exchange between Ms Cook and Mr Rushton, it was said3 – MR RUSHTON: Do you recall any conversation about what would happen after you obviously took leave and had the baby, and you were at a time when you would be looking to return to the workforce, that we had, you and I had? MS COOK: Yes. Originally when I first told you all that I was pregnant, and obviously before all of this happened, you were both very happy for me. You went on to say that you thought I was a great worker, that in future after I had my baby that you’d very much like me to return to work for you. MR RUSHTON: Okay. At any time did I personally say that you were being terminated because you were pregnant? MS COOK: No, you didn’t say that, but you did make mention of it. MR RUSHTON: Sorry, what I’m asking you is: Did I at any time speak to you about your termination and say it was because you were pregnant? MS COOK: No, you didn’t. [50] Ms Cook was later cross examined by Ms Davies where she was asked4 – MS DAVIES: In that conversation when you were let go, in that office between you and I, did I mention at any stage your pregnancy? MS COOK: No, you didn’t. I haven’t put anything in there that you did mention my pregnancy. [51] When weighing up her answers given under cross examination it is apparent that she accepts that neither Mr Rushton nor Ms Davies told her that she was being dismissed because she was pregnant. 3 Transcript at pp 16-17. 4 Transcript at p 50. -- 8 of 11 -- 9 [52] Ms Cook‟s hypothesis as to her being „sacked‟ because of her pregnancy is clearly at odds with the evidence of Ms Caldwell, who wrote in an email to Ms Cook that – …… Josh and Karen had said constantly that you were a great asset and worker. I also remember that the week before, Josh had assured you that you would be welcome to work until you are ready to go on maternity leave. [53] On the balance of probabilities, Ms Cook has failed to establish to the tribunal that she was dismissed because she was pregnant. Unfavourable treatment [54] Ms Cook alleged that she had been subjected to unfavourable treatment. To support this she relied upon – (a) the evidence of Mr Arron Darlington (“Mr Darlington”); and (b) the company placing an advertisement for a position vacant. Mr Darlington [55] Mr Darlington was a former employee of the company and held the position of customer service engineer. In giving his evidence, it was apparent that the relationship between himself and Mr Rushton was at times acrimonious, and he (Mr Darlington) had occasionally approached Mr Rushton and said that he was resigning from the company. [56] The uncontested evidence was that no formal written resignation was ever tendered to the company by Mr Darlington, and inevitably the differences between them (Darlington and Rushton) were discussed, dealt with and settled. This usually resulted in Mr Darlington deciding to continue his employment within the company. [57] Mr Darlington was not an impressive witness. He harboured a significant amount of resentment towards the respondents and he appeared to be motivated by this resentment to support Ms Cook's case. The tribunal places very little weight upon his evidence. [58] Miss Cook sought to rely upon Mr Darlington‟s evidence to support her assertion that she was treated differently to the way in which Mr Darlington was treated when he resigned. Mr Darlington was employed on a full-time basis and it was upon his initiative that he resigned from the company on a number of occasions. Ultimately it was his decision not to resign on a formal basis and continue in his employment after discussions with Mr Rushton. [59] The most distinguishing feature between the terminations of Ms Cook's employment to Mr Darlington's resignations is that when Mr Darlington verbally resigned from the company this was done on a voluntary basis, and clearly upon his own initiative. It was only after discussions with Mr Rushton that he (Mr Darlington) would continue working for the company. -- 9 of 11 -- 10 [60] This is different to what occurred with regards to the termination of Ms Cook‟s employment. It cannot be said that her termination of employment was voluntary, or that such termination was something that she had any control over. Advertised position [61] The position that Ms Cook held within the company was a Telesales Person on a casual basis. A full time position did not suit her for a number of reasons, including personal family reasons. [62] Sometime during her employment the signature on the bottom of her email was altered so that it appeared that she held the position of „Sales Support‟. There was no evidence presented by Ms Cook to the tribunal as to who was responsible for changing her (Ms Cook‟s) email signature, or indeed when, or why it was changed. [63] Ms Cook asserted that an email generated by Mr Moss on 15 June 2011 is further evidence that her employment was unfairly terminated. The email was addressed by Mr Moss to Amy Rich and Vicki Caldwell. Notably neither the sender, nor the recipients of the email are currently employed by the company. [64] It is Ms Cook‟s argument that at some time between when she left work on the afternoon of 14 June 2011 and when this email was sent, there must have been some discussion between Mr Rushton and Mr Moss about terminating her employment. [65] The sole reason for Ms Cook‟s belief on this is because she (her email address) was not included as a recipient of the email from Mr Moss. Mr Moss did not attend the hearing to give an explanation about the email, and there has been no tangible evidence presented by Ms Cook to substantiate anything in support of her suggestions about why she was not included in the email. [66] Ms Cook alleged that soon after her termination from the company, the respondents advertised a vacancy at the company, which was the very same position that she held with the company. [67] In cross-examination by Mr Rushton5, Ms Cook acknowledged that her former position within the company was as a casual employee, and that she was unable to work on a full time basis because her son had special needs. She further accepted that the advertisement placed by the company was for a full-time employee. [68] Having regard to the evidence given, the tribunal is not persuaded that Ms Cook‟s assertion about the advertised position. The tribunal is of the view that Mr Darlington‟s circumstances do not support her hypothesis that she received unfavourable treatment from the respondents. 5 Transcript at pp 55-56. -- 10 of 11 -- 11 Conclusion [69] Ms Cook went to considerable lengths in her allegations to say that the respondents conducted themselves in a manner of underhandedness and subtle intimidation to get rid of her from the workplace. [70] She also alleges that this was carried out by a number of means, including telling her that she could not take a lunch break outside the office, moving the computer that she used from one location to another within the office, blaming her for poor evaluation of the business (mystery shopper) and deliberately causing Mr Moss to leave her name off an email on the morning that she was dismissed. [71] Ms Cook‟s belief is that the computer that she was using was moved overnight as a deliberate act by the respondents to elicit an emotional response from her so that they could dismiss her. The tribunal rejects this conclusion, as there was no evidence to support it. [72] Clearly Ms Caldwell‟s evidence contradicts Ms Cook‟s allegations because the evidence shows that in a short period of time leading up to her (Ms Cook‟s) dismissal from the company, Ms Davies and Mr Rushton thought highly of her as an employee. [73] Ms Cook‟s perception has no factual basis on the tribunal‟s assessment of the evidence that Ms Davies and Mr Rushton planned to dismiss her. [74] The evidence presented to the tribunal was consistent with an emotional employee who was very unhappy when she was not consulted about being moved from one part of the office to another and she over reacted in such a manner that her employers considered her position with the company was untenable. [75] It is the tribunal‟s finding that – (a) Ms Cook‟s employment was not terminated by the respondents because of her pregnancy; and (b) Ms Cook was not subjected to unfavourable treatment by the respondents. ORDER [1] It is the tribunal‟s order that the applicant‟s application be dismissed. -- 11 of 11 --