Kelly v De Mestre [1993] HREOCA 9 (14 April 1993)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984

No. H93/6

Between:

Elizabeth Kelly

Complainant

and

Paul De Mestre

Respondent

Reasons for Decision

of the President, Sir Ronald Wilson

Inquiry Commissioner

Hearing: Sydney, New South Wales

Date: Friday, 19 March 1993

Introduction

This is an inquiry, pursuant to s.59(1) of the Sex Discrimination Act 1984 ("the Act") into a complaint referred to it under s.57(1) of the Act. The complainant alleges that the respondent acted unlawfully when contrary to s.14(2)(c) of the Act, he discriminated against her on the ground of her pregnancy by dismissing her from her employment. The relevant provisions of the Act include the following:

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) ...

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

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.

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)....

(b)....

(c) by dismissing the employee; or

(d)....

The Evidence

I do not propose to embark on a detailed discussion of the evidence. It suffices to say that I have given careful consideration to it and given such weight as I think appropriate to the testimony of the different witnesses. There is considerable conflict between the evidence called for the complainant and that called for the respondent and my task has been rendered more complex by questions of credibility. I do not suggest that the witnesses have not done their best to assist the Commission with an honest recollection of the events which they describe; but I recognise that the accuracy of the recollection of each witness may have been affected, probably unconsciously, by a natural sympathy for one or other of the parties. None of the witnesses could be described as truly independent.

Findings

1. The complainant commenced employment with the respondent as a legal secretary on 26 August 1991. Her salary was negotiated at $500.00 per week gross. There was to be a three-month period of probation. Notwithstanding that the respondent was a partner with one other in a small legal firm, the engagement of the complainant was undertaken by him personally. For all practical purposes, the relationship was akin to that of a sole practitioner and his secretary, normally a situation which called for a close, mutually-supportive relationship in which the practitioner would be considerate of his secretary and the latter would reciprocate with total loyalty and the unreserved contribution of her secretarial skills and initiatives for the benefit of the practice.

2. The complainant claimed to be an experienced legal secretary. Her work record prior to starting with the respondent would appear to lend some support to that representation. However, I am satisfied that, regrettably, this apparent competence was not borne out by the reality. This finding finds support in the evidence of both the complainant and the respondent. The respondent testified that he was disappointed from the outset that she displayed little understanding of the role of a legal secretary and required to be trained in every aspect of the work. Again, according to the respondent, her typing was unreliable, with frequent errors of spelling and sentence formation. I asked him why he did not terminate the engagement at the end of the trial period, namely, 26 November 1991. I accept his explanation that he did not want to do that with the approach of Christmas and he hoped for improvement. He was also irritated by the fact that the complainant lived at Bowen mountain, which required that she spend 1.5 hours each way on the train between Richmond and Wynyard with more travelling beyond Richmond. This tended to limit the flexibility of her working hours. On the other hand this travelling imposed considerable physical burdens on the complainant and did not help the relationship. For her part, the complainant rejected the respondent's criticisms of her work performance. She said that she did all that was required of her. However she also said that she had no independent responsibility. If by that statement she means that she had no freedom to exercise initiative I am unable to accept it. She agreed she had seen the Legal Secretaries Handbook published by the Law Society of New South Wales but said she had not read it. In all the circumstances, I find this astonishing. She agreed that she was responsible for follow-up procedures in litigation work (which constituted about 80% of the respondent's practice) but admitted that she had not set up such a system.

I find corroboration of the respondent's assessment of her competence in two pieces of documentary evidence. The first is the memorandum of 22 November 1991. The respondent said it was an expression of his dissatisfaction and represented a warning to the complainant that her performance was unsatisfactory. He said also that he accompanied the memorandum with an oral warning. The complainant denied that there was any oral expression of dissatisfaction and claimed that the memorandum represented an expansion of her responsibilities without carrying any implication of incompetence. In my opinion, the memorandum, as a communication between a lawyer and his legal secretary, is extraordinary. That it had to be written at all is indicative of the difficulty in the relationship. It outlines the basic role of a legal secretary in terms that would be appropriate if addressed to a young person without practical experience. It might be understandable if it was given to the complainant on her first day to help the familiarisation process. That the complainant should have interpreted it as an expansion of her responsibilities speaks volumes of her lack of experience. On the other hand, I do not understand how the respondent could think it would be received as a warning that her performance was unsatisfactory. It is expressed in sweet tones such as would be used if addressed to a young person. This leads me to accept the complainant's evidence that prior to December his demeanour was always very pleasant and that the memorandum of 22 November was not accompanied by any oral warning that she must improve. The picture emerges of an employer whose very softness of nature renders him inept in his handling of staff relations. In this case his lack of frankness, while intended to be kind, was unfair to the complainant.

The second piece of documentary evidence which is relevant in this regard is the bundle of letters extracted from the files to the respondent. I am satisfied that, whether or not the communications ever actually left the office in the form expressed in the material submitted to me, the complainant's work at times was shoddy and fails to reflect that accuracy of grammar and spelling and conformity to legal practice that was to be expected.

3. On 5 December 1991, the complainant learned that she was pregnant. The next day she informed the respondent. She told him the baby was due in August 1992 and that she would stay at work as near to the birth as possible and return to work as soon as possible after the birth. She said the respondent congratulated her and asked if the pregnancy had been planned. She replied that it had not. She further said that about fifteen minutes later he called her back into his office and said "I am not at all happy about the pregnancy. I think it will cause problems. If I could sack you I would but it is against the law." The complainant said that she was upset by the remarks and that she was comforted by Ms Hudson, who was secretary to the respondent's partner. She said that Ms Hudson said to her "I heard what Paul said to you and I don't think it is fair". Ms Hudson was called as a witness by the complainant. She had attended at the office of the Human Rights and Equal Opportunity Commission on 7 September 1992. A statement was then prepared by the Commission recording the answers Ms Hudson had given to questions put to her. Ms Hudson described in evidence the difficult situation in which she was placed by reason of her employer not wishing her to become involved. She did not sign and return the statement to the Commission until 28 January 1993. She had made a number of alterations, and added a notation at the end which read as follows:

Please note that these statements were answers to a series of questions asked by Ms Shilling.

I have also deleted any statements which I feel were opinions of the interviewer which arose in general discussion during the course of the interview.

I really do believe that Paul did not fire Elizabeth because she was pregnant.

Having regard to the importance of the issue, I set out, verbatim, the relevant passage from Ms Hudson's statement:

With regard to Elizabeth's pregnancy, I remember overhearing through the office wall the conversation when Elizabeth told Mr de Mestre she was pregnant. I remember that before going into Mr de Mestre's office, Elizabeth said to me something like "Listen to this". I then overheard (because the walls were very thin) Elizabeth tell Mr de Mestre she was pregnant and he said "Congratulations" and also "How far pregnant are you". At some point in that conversation he also said something like "Well, I can't fire you anyway" but the tone in which he said it was in no way threatening. [The words "was in no way threatening" were written into the statement in Ms Hudson's own handwriting, in place of the typed words "I took it to mean that he had no intention of firing her".]

Following this conversation, I recall that Elizabeth asked me "Did you hear that?" and then she told me that she didn't think what Mr de Mestre said to her was very fair and asked me what I thought about what he'd said to her. I didn't really want to get involved in her business.

Ms Hudson stopped the sentence after the word "business" and put a line through the remaining words in the paragraph, which read "but I did say something like 'Well, no, I guess it wasn't very fair' but I don't remember what else I said".

The only evidence given by the respondent touching the conversation on 6 December is contained in two paragraphs of the respondent's affidavit, which read as follows:

46. I do not remember the precise terms of the conversation of 6 December 1991 referred to in paragraph 17 of the Complainant's affidavit. I have no recollection of saying the words: "If I could sack you I would but it is against the law" or anything of the kind. I did not know at that time that it was against the law to dismiss a woman because she was pregnant under the Sex Discrimination Act. However, morally I did not regard pregnancy as a valid ground for dismissal.

47. I totally deny that I dismissed the Complainant because she had told me she was pregnant or that my knowledge that she was pregnant played any part in my decision-making. The only reason I dismissed her was because she was incompetent and unable to perform the duties I required of her as a legal secretary.

There was no cross-examination of the respondent on the subject. I accept that the respondent did not exactly welcome the news of the complainant's pregnancy and that his congratulations were perfunctory. I accept also that he said, either seriously or in a jocular manner, something to the effect that he could not fire her because it was against the law. That he should make such a statement to her in those circumstances and that, before hand, as I accept, the complainant specifically asked Ms Hudson to listen to the conversation, is eloquent testimony to the fact that, contrary to what the complainant has said, the relationship was already breaking down by reason of the complainant's inadequate performance. The complainant must have expected trouble, else why would she have asked Ms Hudson to listen to the conversation?

4. Apparently, the question of the complainant's pregnancy was never raised again. I find it surprising that the respondent did not ask her how she was or engage in some pleasantries to identify with her in her anticipated happiness. The explanation can only be, in my opinion, that the relationship continued only at a formal level, with the respondent experiencing a growing irritation and sense of self-pity that he was trapped. The problems associated with efficiency were now compounded with those of an impending maternity leave and engagement of a temporary secretary.

5. Further sources of irritation were to be found in the respondent's dissatisfaction with minor matters which in ordinary circumstances would not have disturbed an otherwise good relationship. I refer to the alleged extended holiday over the Christmas - New Year period, the question of personal telephone calls and faxes and an alleged growing backlog of work. The final straw came when the complainant returned to work on Thursday 9 January 1992. Before Christmas, she had been working on a complex bill of costs. She resumed the task on her return and was again engaged in transcribing tapes related to it on Friday 10 January. She had not completed the tapes when at the usual time of 4.45 pm she asked the respondent if she might leave to catch her train. The respondent complained because the work on the bill had been delayed and he said he had been working on it as well - as he put it "doing your work". She offered to stay back provided he got her home safely, but he told her to go. She returned to her office, switched off the computer and left. Unfortunately, in a manner I do not profess to understand, the work which the respondent had been doing on his computer terminal, described as a "dumb" terminal because of its dependence in some way on the complainant's computer, was lost. On Monday morning, 13 January, the respondent protested to the complainant about the loss of his work, implying that it was her fault. She simply replied that she was sorry and left it at that. Yet in her oral testimony at the hearing, she asserted that it was not possible for her by switching off her computer to have lost the work the respondent had been doing on his terminal, thereby implying that it was the respondent's own fault for not having saved the work. If that was so, it is a pity that she did not make such a defence at the time she was accused of having caused his work to be lost. As it was, whatever the rights and wrongs of the dispute, the respondent was left believing that the complainant was responsible for the lost work. At 4.45 pm on Tuesday 14 January 1992, the employment was terminated, the respondent giving as the reason that the work was not up to date. The complainant disputed the truth of the assertion but he simply said "I have made my decision, there is nothing more to be said".

6. It remains now for me to evaluate the evidence having regard to the complaint of unlawful conduct. To what extent, if any, did the fact of the complainant's pregnancy contribute to the decision of the respondent to terminate the employment? I am satisfied that, at least from November 1991, the relationship had deteriorated so as to become little more than a formal one. I find the reason for this deterioration was the respondent's growing dissatisfaction with the complainant's level of experience and competence and also a growing irritation with aspects of her work practices. In this context, it is not surprising the news of the complainant's pregnancy was received by the respondent without any show of enthusiasm and the subject was never referred to again.

The dissatisfaction and irritation to which I referred continued to grow, coming to a head with the complainant's return from leave on Thursday 9 January 1992 and the crisis over the bill of costs. I find the respondent believed the complainant, while leaving him to battle on alone at 4.45 pm on Friday 10 January, had switched off the computer and thereby destroyed his work.

There is no doubt in my mind that the immediate and primary cause of the dismissal of the complaint was very poor work performance. It was not due to her pregnancy. In this regard, however, it is important to have regard to the operation of s.8 of the Act. In its application to the present case, that section declares that, if the pregnancy was one of the reasons for the dismissal, it does not matter that it was not the dominant or substantial reason.

I must therefore consider whether the evidence establishes to my satisfaction that the complainant's pregnancy was one of the grounds motivating the respondent to dismiss her. It certainly was not the dominant or substantial reason. On the evidence, I am not persuaded it played any part at all in the decision. The formal manner in which the news was received by the respondent and the fact the subject was never adverted to again, encourages me to conclude that, in the context of the relationship existing at the time, it was simply a non-event, a fact which played no part at all in the events, including the dismissal , which followed.

Conclusion

The complaint has not been substantiated and must be dismissed.

Dated this 14th day of April 1993 in Perth

Signed

Ronald Wilson

President