Duncan v Mitsuo Ueda [1991] HREOCA 13 (31 December 1991)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984

BETWEEN:

EDWINA DUNCAN

Complainant

AND:

MITSUO UEDA

First Respondent

AND:

M.T.M. CONSTRUCTIONS PTY. LIMITED

Second Respondent

REASONS FOR DECISION OF MS. S.M. KIEFEL Q.C.

HEARING COMMISSIONER

Hearing: 22 November 1991

Background and Complaint

Ms. Duncan commenced employment as a Receptionist/bookkeeper at M.T.M. Constructions Pty. Limited on 16 October 1989 following interviews with Mr. Ueda, a Director of that company. At the interview she had been asked if she had any plans to commence a family to which she replied that she had not. Ms. Duncan herself says that she gave a commitment to remain in employment for at least 12 months.

On 7 December 1989 she advised Mr. Ueda that she had found that she was pregnant and that she would like to continue working until March 1990. Mr. Ueda was initially quite supportive. She says he congratulated her and even discussed whether she might wish to return to work after the birth of the child.

Ms. Duncan says that Mr. Ueda however approached her on 15 December 1989 and told her that she would not be returning to her employment after Christmas; and that she was "sacked". He went on to say that it was "company policy" not to keep pregnant women on staff. Ms. Duncan wrote a letter of complaint to the Human Rights Commission that day.

Mr. Ueda does not agree with that version of events. he says he was unhappy with Ms. Duncan's work and advised her she would have to leave. He says she agreed to do so. He then made enquiries about how she would fare but was assured by Ms. Duncan that her boyfriend would assist her.

Mr. Ueda's (and I take it the company's) solicitors responded to the complaint by letter to the Commission dated 22 February 1990. They pointed out that Ms. Duncan had a considerable amount of time off work in the two months in which she was employed (5.5 days), that she would sometimes leave the office early and without notification to her employer and that generally her standard of work or application was not acceptable. The letter concluded:

".. Our client advises that the reason for Ms. Duncan's dismissal was not the fact alone that she was pregnant but, in addition, the fact that she deceived the company by not telling of her pregnancy when she was interviewed and when she commenced working for our clients. Our client also feels that Ms. Duncan had far too much time off work and that her work was unsatisfactory".

The Sex Discrimination Act

The relevant provisions of the Act are as follows:

S.7(1) For the purposes of this Act, a person (in this sub-section referred to as the "discriminator") discriminates against another person (in this sub-section referred to as the "aggrieved person") on the ground of the pregnancy of the aggrieved person if -

(a) by reason of -

(i) the pregnancy of the aggrieved person;

(ii) a characteristic that appertains generally to persons who are pregnant; or

(iii) a characteristic that is generally imputed to persons who are pregnant, the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who is not pregnant;

and;

(b) the less favourable treatment is not reasonable in the circumstances.

...

s. 8 A reference in sub-section 5(1), 6(1) or 7(1) to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.

s.14(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status or pregnancy -

(a) in the terms or conditions of employment that 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;

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment.

..."

Both parties appeared in person and questioned each other. Ms. Duncan gave evidence that the only reason attributed by Mr. Ueda to her dismissal was the fact of her pregnancy. No other mention was then made of dissatisfaction with her work, nor indeed had any one previously made adverse comment as to her work. Mr. Ueda also gave evidence. He did not suggest that complaints had been made about her work but says that Ms. Duncan was told of this dissatisfaction on her dismissal. Mr. Ueda was unable to explain the terms of the Solicitor's letter I have referred to. There seems no reason to doubt that it was written on information given by Mr. Ueda to the Solicitors.

I find that a reason, and probably the sole reason, that Ms. Duncan was dismissed was because of her pregnancy. In addition to own evidence, the complainant is supported by the terms of her complaint to the Commission the same day. Most telling however was the Respondents' solicitor's letter from which it is clear that at least at that time Mr. Ueda had instructed them that Ms. Duncan's pregnancy was at least a factor. Whilst Section 8 of the Act does not require the pregnancy to be even a dominant or substantial factor I find in this case it was.

I find the complaint substantiated. Pursuant to Section 81(1)(b)(iv) I may make a declaration that the Respondents should pay the complainant damages by way of compensation for any loss or damage suffered by reason of their conduct.

As I have said, Ms. Duncan wished to work through to the end of March 1990 earning approximately $255.00 net per week. Ms. Duncan received an additional week's salary on termination of her employment. It appears that Ms. Duncan could have worked for that period. Additionally she suffered hurt and upset as a consequence of her dismissal and compensation ought to take that into account.

(a) I declare that the Respondents acted unlawfully in dismissing the complainant on the ground that she was pregnant; and

(b) I declare that the Respondents should pay to the complainant damages by way of compensation in the sum of $3,500.00.

DATED this 31st day of DECEMBER 1991.