Edwards v TT Line Tasmania Pty Ltd [1997] HREOCA 49 (25 August 1997)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Sex Discrimination Act 1984 (Cth)

In Matter H97/30

Between:

NGAIRE ANNE EDWARDS

Complainant

And:

TT LINE TASMANIA PTY. LTD.

Respondent

REASONS FOR DECISION OF THE INQUIRY

COMMISSIONER MR CHRISTOPHER WEBSTER

Hearing: Devonport

Dates: 14 and 15 July 1997

Date of Decision: 25 August 1997

Appearances S. Hall of Friend & Jones instructed by Complainant

D. Bessell of Page Seager instructed by Respondent

1. INTRODUCTION

On 15 January 1997 the Sex Discrimination Commissioner referred a complaint by Ngaire Edwards ("Ms Edwards") against TT Line Company Pty. Ltd. ("the Company") to the Human Rights and Equal Opportunity Commission ("the Commission") for an inquiry in accordance with s57(1)(b) of the Sex Discrimination Act 1984 ("the Act").

The complaint of Ms Edwards is that in February 1995 she applied for a position of Systems and Training Officer advertised by the Company. At the time of her application Ms Edwards was already in employment with the Company, but had indicated her intention to take maternity leave as she was approximately seven months pregnant. She was interviewed for the position, but was unsuccessful. Ms Edwards alleges that she was unsuccessful in her application because she was pregnant. Her belief that she failed to obtain the position due to her pregnancy arises as the result of a discussion she had subsequent to the interview with one of the persons who interviewed her. Ms Edwards alleged that in that discussion she was advised that she was unsuccessful as she was, "........ going on maternity leave and we want continuity and feel that having to train a relief person in the position for only 12 months and then train you would be too much fuss."

The Company denied any discrimination and maintained that the selection process for the new position which Ms Edwards sought was based on merit and that Ms Edwards was unsuccessful solely because she was not the best candidate. The company maintained that a scoring system was used to rate the candidates and that the person who had scored highest had been appointed to the position.

2. THE LAW

The relevant law is contained in s14(2); s7(1); and s8 of the Act.

Section 14(2) states:-

"S14(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."

"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;

(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."

"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."

3. THE EVIDENCE

3.1 THE COMPLAINANT'S EVIDENCE

The complainant and her husband, Bruce Sydney Edwards ("Mr Edwards"), gave evidence on behalf of Ms Edwards.

No medical evidence was adduced as to the effects of the alleged discrimination upon Ms Edwards.

Much of Ms Edwards' evidence was uncontroversial.

The following evidence was not disputed:-

(a) Ms Edwards is aged 28.

(b) She was employed by the Company in June 1993.

(c) In January 1994 Ms Edwards was promoted to the position of Staff Training Officer.

(d) In February 1995 Ms Edwards was advised that as a result of a restructuring of staffing by the Company, the positions of Staff Trainer and Systems Officer would be amalgamated to form a new position.

(e) The new position was advertised and applications were invited.

(f) At this time Ms Edwards was pregnant. She approached Ms Miranda Foster ("Ms Foster"), who was listed as the contact for inquiries concerning the new position and advised Ms Foster that she was pregnant. Ms Foster made it clear to her that the best applicant for the job would be chosen; if Ms Edwards was the best person for the job she would be appointed and when she went on maternity leave, the position would be filled by someone else on a relief basis.

(g) Ms Edwards submitted an application for the new position and was subsequently interviewed by Ms Foster and Mr Brian Maguire ("Mr Maguire") on 13 March 1995.

(h) On 14 March 1995, Ms Edwards was advised that she was unsuccessful in her application.

(i) Subsequent to receiving advice that she was unsuccessful in her application, Ms Edwards approached Ms Foster and discussed with her the reasons why she was unsuccessful with her application. The precise words used in that discussion is a matter of dispute. Ms Edwards alleges that she asked Ms Foster why she was unsuccessful in her application and that Ms Foster replied, "well, do you want me to be completely honest about this? ... well, you're going on maternity leave and it would mean having to train someone for twelve months to fill the position on a relief basis and update you when you come back to get you back into the flow of things and overall it was just too much fuss to have to do it."

(j) On the same day Ms Edwards lodged a complaint with the Commission.

(k) The following day Ms Edwards attended work. She consulted a doctor that evening and was certified unfit for work for two weeks due to high blood pressure and an injured foot. Following that two weeks off work, Ms Edwards commenced her annual leave and then her scheduled maternity leave.

(l) It was intended that following her maternity leave that Ms Edwards would return to work to a position at the same pay level as her former position, but not the same position which she previously held, as this position had been abolished by the restructure. However Ms Edwards believed that the position to which she was to return was not of the same status as her pre-maternity position. This apparent loss of status caused her to become upset.

(m) Ms Edwards was due to return to work in March 1996. She became nervous about returning to work as she would have to work with the people who justified the failure of the Company to promote her to the newly created position of Staff Trainer and Systems Officer. On 27 February 1996 Ms Edwards resigned from the company because of her "absolute dread and fear about having to go back into that environment".

(n) Shortly after her resignation Ms Edwards was offered employment as a travel consultant at a local travel agency. However she did not accept the job offer because she did not feel confident, after her experience with the Company, that she could satisfactorily perform the job.

(o) In August 1996, Ms Edwards obtained employment as a part-time office manager at a child care centre.

3.2 THE RESPONDENT'S EVIDENCE

Three persons gave evidence on behalf of the Respondent.

Ms Miranda Hudson-Foster ("Ms Foster") and Mr Brian Maguire ("Mr Maguire") gave evidence as to the selection process and interview process for the amalgamated position of Staff Trainer and Systems Officer

Ms Foster's evidence was as follows:-

(a) The selection panel consisted of Mr Maguire and Ms Foster;

(b) There were sixty applicants for the position. Of these applicants, six were chosen to be interviewed by Mr Maguire and Ms Foster.

(c) Prior to the interviews a selection criteria was prepared and broken into various areas and scores were attached to each area. During the interviews the candidates were scored against these criteria. Each of the interviewers marked their own "score sheets". These "score sheets" were compared after the interviews and the successful candidate was chosen solely on the basis of their performance on the score sheets.

(d) During the interview of Ms Edwards, she advised that she was pregnant.

(e) At the end of the interview process both interviewers had scored a candidate, other than Ms Edwards, as the preferred candidate. Ms Edwards was rated second by Ms Foster and Mr Maguire had rated Ms Edwards the third highest scoring candidate.

(f) The fact of Ms Edwards' pregnancy was not relevant to the decision making process of the selection panel.

(g) On 14 March 1995, subsequent to Ms Edwards being advised that her application was unsuccessful, there was a discussion between Ms Edwards and Ms Foster. Ms Foster's version of that discussion differs from that of Ms Edwards. Ms Foster's version of that discussion is as follows:-

"She asked also if it had had an influence as well and I said that from a personal level, while it hadn't been part of the decision-making process that she was pregnant, obviously it had some effect on me in that I ran a small area, a department of three people only, and from a personal perspective, it would be difficult operationally with a twelve month maternity leave."

Mr Maguire's evidence was essentially a repetition of Ms Foster's evidence as to the selection process, save that Mr Maguire stated that the successful candidate was chosen not only on the basis of the score achieved on the scoring sheets used during the interview. The following exchange took place during his evidence:-

"Mr Maquire: Yes, well, its not just the scoring sheet..... that determine whether or not somebody is going to be appointed to the position. It would be a number of different factors that would come into play with that.

The Commissioner: So you're saying the scoring wasn't the be all and end all?

Mr Maguire: No, not at all, not at all. I mean, I think that's going to be with any interview process. You're not going to base your total decision on whether you're going to hire somebody, whether they're an internal or external applicant, based on only the interview."

Later he said:

"........... we try to take into consideration what their experience is, their work history, and even if somebody is an external applicant and they're successful through the interview process, we still follow up with their references and make sure that the references are in order and any of these processes could fall down and that person wouldn't be successful in that position."

4. FINDINGS OF FACT

Much of the evidence given at this inquiry was uncontroversial.

The two areas of controversy in the evidence were:-

(a) the substance of the discussion between Ms Foster and Ms Edwards on the 14 March 1995 following the advice that she was unsuccessful in her application; and

(b) whether or not the successful candidate was appointed solely on the basis of their score during the interview.

I am satisfied on the basis of the evidence of Mr Maguire, that the successful candidate was not chosen purely on the basis of their performance at the interview and the score that person obtained at the interview. I find that although the interview process played a major part, other factors such as perception as to how a candidate was performing at their existing position also played a part.

I consider that contrary to the respondent's argument that the successful candidate was chosen purely on an "objective" scoring system, (so that extraneous factors such as pregnancy could play no part), other factors played a part in the choice of the successful candidate.

I accept Ms Foster's version of the conversation between her and Ms Edwards of 14 March 1995. That is, that she said that while Ms Edwards' pregnancy, "hadn't been part of the decision-making process......., obviously it had some effect on me........".

In any event, I do not consider that there is a substantial difference in the versions of the participants to the discussion. Both versions essentially mean the same thing.

5. APPLICATION OF THE LAW

I have found as a fact that matters extraneous to the interview were taken into account in determining the successful candidate.

I have also accepted Ms Foster's evidence that Ms Edwards' pregnancy had an affect on her.

The natural meaning of Ms Foster's statement, is that somehow Ms Edwards' pregnancy had an adverse effect on her application and that her pregnancy was a factor, which at least in Ms Foster's mind, weighed against Ms Edwards in the selection process.

In my opinion, to consider pregnancy and its effect as an adverse factor which should be weighed against a candidate for transfer, is to discriminate against that employee contrary to s14(2)(b) of the Act.

The discrimination by one member of a selection panel affects the whole selection process.

In the present case, Ms Edwards' access to transfer was limited due to her pregnancy being treated as an adverse factor. That is, she was treated less favourably than a person who was not pregnant.

In accordance with s8 of the Act, it does not matter that her pregnancy was only one reason why she was treated less favourably, or was not the dominant reason.

I turn now to the matter of damages.

No medical evidence was adduced on behalf of Ms Edwards to show she suffered any adverse medical effects as the result of the discrimination. The effects were essentially one of distress and annoyance.

The evidence is that the position for which Ms Edwards applied was not a promotion (in terms of level or salary) but a transfer; that she was entitled to return to be employed with the Company at the position she had immediately prior to the unsuccessful interview. Her failure to obtain the transfer did not therefore directly result in any financial loss. I note that even if there had been no discrimination, Ms Edwards would not necessarily have been successful. However, there is no need for me to consider what chances she had of obtaining the position or what damages attach to the lost chance for reasons I discuss later.

I do not accept that Ms Edwards was not able to return to her former employment due to any affects suffered by the discrimination. I do not accept her evidence that she was incapable of accepting the position of a travel consultant, with another employer, which was offered to her shortly after February 1996.

It is my view, upon the evidence presented, that Ms Edwards has failed to mitigate her damages by either returning to work with the Company at the expiration of her maternity leave, or accepting the alternative position offered to her by another prospective employer.

I award nothing under the head of damages of loss of earning capacity.

So far as pain, suffering and loss of social amenity is concerned, Ms Edwards was minimally affected as the result of the discrimination and therefore she is entitled to only minimal damages under that head.

Her evidence as to the affect of the discrimination can be summarised as:-

(a) That on the day following the rejection of her application she attended work but was quite distressed about what had taken place and felt uncomfortable.

(b) There is no evidence of further distress until the Company responded to Ms Edwards' complaint to the Commission.

(c) Following the response she became extremely upset again. She stormed around the home and became so distraught she had to be calmed down by others.

(d) In February 1996, in the period leading up to her return to work, she was "sick to her stomach" and nervous about having to go back to work.

Mr Edwards was only able to point to two occasions when his wife was particularly upset as the result of the discrimination:-

(a) The afternoon following the advice that she was unsuccessful when "she was really distressed and crying and shaking"; and

(b) When she received the response to the complaint to the Commission when "she was shaking and crying, upset, and her mum and dad was [sic] there and her dad sort of had to yell at her a bit to try and calm her down."

I award $1,000.00 damages under this Head.

6. FINDINGS

The complaint of sexual discrimination under Section 14(2) of the Act is proved and an award of $1,000.00 made for the complainant against the respondent.

DATED at Hobart this 25 day of August, 1997.

Signed:

............................................................................................

CHRISTOPHER WEBSTER

Hearing Commissioner