[2008] WASAT 145 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : PARSONS and STONE TRADERS PTY LTD [2008] WASAT 145 MEMBER : MS J TOOHEY (SENIOR MEMBER) MR J MANSVELD (MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER) HEARD : 25 AND 26 FEBRUARY 2008 DELIVERED : 25 JUNE 2008 FILE NO/S : EOA 48 of 2007 BETWEEN : MARIKA PARSONS Applicant AND STONE TRADERS PTY LTD Respondent Catchwords: Discrimination - Pregnancy - Maternity leave - Termination of employment - Whether complainant dismissed on ground of pregnancy or for poor performance - Complaint made out - Respondent to pay compensation and provide statement of service Legislation: Equal Opportunity Act 1984 (WA), s 10, s 11, s 93(1)(b) Page 1 [2008] WASAT 145 Result: The complaint is made out. Respondent to pay compensation and provide a statement of service Category: B Representation: Counsel: Applicant : Mr Allan McDonald Respondent : Mr Archie Beer Solicitors: Applicant : Commissioner for Equal Opportunity Respondent : Self-represented Case(s) referred to in decision(s): Briginshaw v Briginshaw (1938) 60 CLR 336 Dare v Hurley [2005] FMCA 844 Department of Health v Arumugam [1988] VR 319 HREOC v Mt Isa Mines Ltd (1993) 46 FCR 301 Mooney v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 189 Waters v Public Transport Corporation (1991) EOC 92-390 Page 2 [2008] WASAT 145 REASONS FOR DECISION OF THE TRIBUNAL: Summary of Tribunal's decision The applicant claimed her employer unlawfully discriminated against 1 her on the ground of pregnancy by terminating her employment. She said she was dismissed because of the sick leave she took while pregnant and to prevent her becoming entitled to 12 months unpaid maternity leave. The respondent said her employment was terminated because of her poor performance. Approximately two weeks before she would have become entitled to 2 12 months unpaid maternity leave, the applicant was given a written warning about her performance. A standard form notice specified the ways in which her performance was wanting and indicated it was the first of a possible four (including a final) warnings. The Tribunal accepted the applicant took immediate steps to improve the matters referred to in the notice. One week later, the respondent dismissed the complainant for 3 reasons set out in the notice of termination that were different from those stated in the warning notice. The Tribunal accepted that the respondent had some concerns about 4 the applicant's work but it found the real reasons for dismissing her were the sick leave she had taken after she became pregnant and her impending entitlement to maternity leave. The Tribunal was satisfied that the respondent had treated the 5 applicant less favourably than it would have treated another person in the same, or similar, circumstances, who was not pregnant. The respondent's conduct was not reasonable in the circumstances and constituted unlawful discrimination on the ground of pregnancy. The Tribunal accepted the applicant's evidence that she had intended 6 working until she was 34 weeks pregnant and awarded her $7869.80 for lost earnings. It accepted she had suffered distress and humiliation over her termination but found this to be at the lower end of the scale and awarded her $2500. The Tribunal also ordered the respondent to provide the applicant with a statement of service. Background The applicant, Marika Parsons, claims the respondent, her former 7 employer, Stone Traders Pty Ltd, discriminated against her unlawfully on Page 3 [2008] WASAT 145 the ground of her pregnancy contrary to s 10 and s 11 of the Equal Opportunity Act 1984 (WA) (EO Act). Ms Parsons commenced full-time work as an accounts assistant with 8 the respondent on 3 July 2006. Around the end of January 2007, she learned she was pregnant. Her baby was due on 5 October 2007. In mid-February 2007, Ms Parsons told the respondent she was 9 pregnant. At this point, her plans were not settled, and depended on her husband's employment and when would be the most advantageous time for them financially for her to stop work. In the months before becoming pregnant, Ms Parsons had taken 10 occasional sick leave. Once she was pregnant, however, she was off work on several occasions to the point that, by mid-April, she had used all her sick leave entitlements. With the respondent's agreement, she took further sick leave from her annual leave entitlement. On 8 June, Ms Parsons was given a written warning about her work 11 performance. One week later, on 15 June, she was told that her employment was being terminated with immediate effect. On 3 July, Ms Parsons would have completed 12 months continuous 12 service with the respondent and become entitled by law to 12 months unpaid maternity leave. She claims that both the written warning and her termination happened without warning and for reasons that had not been brought to her attention previously. Ms Parsons claims the real reasons for her termination were the sick 13 leave she had to take as a result of her pregnancy and her impending entitlement to maternity leave. She says that, in terminating her employment, the respondent unlawfully discriminated against her by treating her less favourably, on the ground of her pregnancy, or on the ground of a characteristic that appertains generally to persons who are pregnant, than the respondent would have treated, a person who was not pregnant. The respondent maintains that Ms Parsons' employment was 14 terminated solely on account of her poor work performance and that this had been brought to her attention before she was formally warned and subsequently dismissed. On 26 June, Ms Parsons lodged a complaint of unlawful 15 discrimination with the Commissioner for Equal Opportunity. The Page 4 [2008] WASAT 145 Commissioner investigated and attempted to conciliate the complaint without success. On 17 September 2007, the Commissioner referred the complaint to the Tribunal pursuant to s 93(1)(b) of the EO Act. The applicant's claims and evidence Ms Parsons' duties included attending to accounts payable and 16 accounts receivable (debtors), invoices, delivery dockets and data entry. Before working for the respondent she had about five years experience in accounts and administrative positions but limited experience with debtors. She maintains she told Peter Laurier, the respondent's accountant, about this when he interviewed her for the position. Mr Laurier disputes this but nothing really turns on it. In October 2006, at the end of a three-month probation period, Ms 17 Parsons was made a permanent employee. Ms Parsons worked at the respondent's administration office in 18 Forrestfield and spent one day each week at the Canning Vale office. There were two other employees in the accounts section at the Forrestfield office, Jessica Parry and Christine Hammond. At the Canning Vale office, Ms Parsons generally worked by herself but was in contact with staff of the head office at Wattle Grove, including Ms Diana Riciutti, the accounts manager, who gave evidence before the Tribunal. Mr Laurier, who was Ms Parsons' direct supervisor, was based at the 19 head office. He would generally visit the Forrestfield office once a week, sometimes every couple of weeks, depending on his work schedule. In late January 2007, Ms Parsons learned she was pregnant and that 20 her baby was due on 5 October. She discussed with her husband when she should tell her employer. He wanted her to wait until 12 weeks had passed and she was out of the "danger period", but she decided to tell her employer before then. There is some divergence in the evidence as to whom at the office 21 she told first about the pregnancy, but nothing turns on this. It is common ground that she told Mr Laurier in mid-February. Ms Parsons says Mr Laurier congratulated her and asked what she 22 planned to do about her job; she said she would like to take maternity leave and then return to work either full- or part-time. He asked her how long she planned to work before the baby was due; she said for as long as she could but she had not given it much thought. Mr Laurier then began Page 5 [2008] WASAT 145 to calculate aloud when he would need to start looking for someone to take over from her, allowing time for recruitment and training. The conversation went no further. On 23 February, Ms Parsons had to leave work after she developed a 23 migraine headache. She had told either Mr Laurier or Mr Beer when she applied for the job, and the respondent does not dispute, that she suffered from migraines for which she took medication. On her doctor's advice, evidenced by a medical certificate to this effect, she could not take the medication during pregnancy. Approximately two weeks later, Ms Parsons says she arrived at work 24 to find a new employee, Rebekah Clarke, waiting for her. The marketing manager, Kevin Healey, told her Ms Clarke had been brought in to take over from her; Ms Parsons said she was surprised someone had come in so early in her pregnancy, and asked him if her job was safe, to which he replied it was. Later the same day, Mr Laurier told her Ms Clarke was her replacement and she would have to train her so she could take over easily. Mr Healey and Mr Laurier give slightly, but not substantially, different accounts of these conversations. In any event, Ms Clarke started working in the office one day each week from then. On 9 March, Ms Parsons had another migraine and her husband rang 25 the office to say she was sick and would not be in. On 22 March, she had to leave work because glue from recently-laid carpets in the office made her ill. She was still ill the following day and her husband rang to say she would not be in. On 26 March, she had to go home at lunchtime because she had morning sickness. On 27 March, Ms Parsons had an early appointment for an 26 ultrasound, and arrived at work at 10.30 am, having previously told Mr Laurier she would be in late. On 16 April, she again had a migraine and stayed home. She was off work with a viral infection for part of 19 April and all the following day. She was still off work with the infection on 23 and 24 April. Ms Parsons had a further day off sick on 27 April. On 7 and 27 17 May, she had time off during the day to attend antenatal appointments. On 18 May, she had another migraine and her husband rang to say she would not be in. By 23 April, Ms Parsons had used all her sick leave entitlements. 28 She offered to make up the hours but Mr Laurier declined, giving her the option of taking further leave as annual leave because he knew she did not Page 6 [2008] WASAT 145 want to lose pay. Mr Laurier agrees with her account and says he did not think it would "do her any good" to work longer hours. Ms Parsons claims, and Mr Laurier has not disputed, that he said words to the effect "Call me old-fashioned but you shouldn't be doing this". Ms Parsons would give her medical certificates for her sick leave to 29 Mr Laurier, if he was in the office, or to the Human Resources Manager. Archie Beer, who presented the case for the respondent at the hearing, was the Human Resources Manager up to late February 2007 or early March, when Rob McClure took over the position. Around the last week of May, Mr McClure told Ms Parsons she was 30 to start recording her attendance on timesheets. She questioned this because it had not previously been a requirement. He said all employees were being required to complete timesheets. Ms Parsons says that, despite asking Mr McClure several times for a timesheet, he did not give her one. In the last week of May, Mr McClure asked Ms Parsons when she 31 would be finishing work to go on maternity leave as she had to give four weeks written notice of her intention to do so. She said she would know by the end of June once she and her husband knew more about changes to his employment and their effect on their family tax benefits; depending on that, she would stop work on 31 July or some time later; she would give him written notice as she was certain of the date. Ms Parsons says, and it is not disputed, that she also had a conversation around this time with Mr Laurier about when she would be going on maternity leave. On Thursday 7 June, Ms Parsons attended hospital for an ultrasound 32 and arrived at work around 9.30am. She does not specifically recall telling Mr Laurier about the appointment but believes she would have done so because it was her habit to tell him about all her appointments. Later that day Mr McClure told Ms Parsons her use of the internet 33 and telephone had been monitored and she had been using both for personal reasons. She did not deny using either for personal use; she said she did not think her use of either was excessive but, if it was a problem, she would stop doing it. She told Mr McClure no one had raised these matters with her previously and she had observed other staff using phones and the internet for personal use. Mr McClure also said she had been coming late to work. She did not 34 deny being late on occasions but said she was, at most, five or 10 minutes late and it had become more frequent during her pregnancy because she was sometimes unwell in the morning. Page 7 [2008] WASAT 145 Ms Parsons questions how Mr McClure knew she was coming in late 35 as he did not give her a timesheet to complete and he was rarely in the office when she arrived; nor did he know that she would make up the time at the end of the day, a claim that has not been disputed by the respondent. Warning notice On Friday 8 June, Mr McClure gave Ms Parsons a written notice 36 about her performance. A copy is before the Tribunal. It is headed: Stonetraders Pty Ltd 1st/2nd/3rd & Final Disciplinary Notice (Please circle appropriate notice) "1st" is circled. The standard form document identifies eight "Types 37 of Violations" for which warning might be given. Ms Parsons' notice specifies "Lateness" and "Other - Internet/phone usage". Under the heading "Details of incidents and relevant facts", it 38 records: Excessive use of [Internet and telephone] for personal use. Also addressed the issue of being late for work. After investigation … it was determined that a number of chat rooms and forums had been accessed on 07/06/07 from Marika's workstation. Under "Warnings And/Or Disciplinary action explained to the 39 employee and instructions given", it records: Marika had been using the Internet for … chat rooms and forums … of a personal nature ... Personal phone calls had also been identified as an issue of concern (length and frequency). … lateness was also addressed. It records that "it was established" that the internet was for business 40 use only; personal phone calls should be kept to a minimum length and occurrence; and Ms Parsons was to commence work at 8.30 am through to 4.30 pm on Monday to Friday, with the exception of extenuating circumstances. Finally, it notes that these issues had "been addressed to her" by 41 Mr McClure on 7 June 2007 and, in bold, that "This is Marika's first warning relating to the above violations". Page 8 [2008] WASAT 145 Ms Parsons signed the form, recording "No comment" to whether she 42 accepted or disagreed with its contents. She says Mr McClure advised her she had to write a comment; when she did not know what to write, he advised her to put "no comment". Ms Parsons felt stunned and confused by the notice because she had 43 no prior warning about the matters raised in it. She says she stopped using the internet for personal reasons and deleted any personal data she had saved on the computer system and made a conscious effort to be on time each day. She says, and the respondent has not disputed, that she could not use the computer the following week because the server was down. On Monday 11 June, Ms Parsons had trouble walking; she saw her 44 physiotherapist who diagnosed a torn ligament and certified her unfit for work that day and the next. She returned to work on Wednesday 13 June. Termination On the afternoon of Friday 15 June, Mr McClure told Ms Parsons the 45 company had decided to terminate her employment on account of her "unsatisfactory work performance". He said he had notified Mr Laurier of her termination one hour earlier. Mr McClure said other staff had complained they could not get their 46 work done on time because Ms Parsons was behind with hers; she asked whether Ms Parry or Mr Healey had complained and he said it was neither of them; when she asked again, he did not reply. When Ms Parsons questioned how her performance was 47 unsatisfactory, Mr McClure cited delay in the bank reconciliation for May and June. She explained the delay, which she says had to do with the accounting software, and said she had discussed it with Mr Laurier who had told her to leave it and he would see what he could do. She asked Mr McClure for other examples but he did not give her any. Mr McClure then said she had had almost two weeks off in the 48 previous nine weeks and her attendance was unreliable. She asked why no-one had spoken to her about this if it was a problem but he did not reply. Ms Parsons declined Mr McClure's offer to allow her to resign and 49 declined to sign a document headed "Employment Termination Advice". Page 9 [2008] WASAT 145 On Monday 16 June, Ms Parsons went to Mr McClure's office where 50 she signed the "Employment Termination Advice". It records the reason for her termination as "Work performance - Behind in workload. Reliability of attendance". It does not refer to internet and telephone use or being late for work. Ms Parsons maintains that the first time any concerns about her 51 performance were brought to her attention was on Friday 7 June when Mr McClure gave her the warning notice. She does not dispute that Mr Laurier talked to her about falling behind with the accounts, but denies that he reprimanded her. Ms Parsons claims her employment was terminated because she had 52 taken too much sick leave and because, on 2 July, she would have completed 12 months employment with the respondent and become entitled to 12 months maternity leave. She says she was treated less favourably on the ground of her 53 pregnancy or, alternatively, on the ground of characteristics that appertain generally to people who are pregnant, being sick leave and maternity leave. She says there is no other plausible explanation for her termination, notwithstanding what the respondent says. Loss claimed Ms Parsons claims she had planned to work until she was 34 weeks 54 pregnant, that is, to 24 August. She claims $7,869.80 for loss of earnings plus superannuation for the period 15 June to 24 August. She also wants a Statement of Service so that she has a complete record of her service when she returns to work. Ms Parsons claims general damages for distress and humiliation. 55 She says she was "not depressed" but "not far from it"; she felt worthless and lost self-esteem, and was stressed at the thought of the effects on her unborn baby. She says her experience has left her with a sense of mistrust of employers which she did not have previously. Ms Parsons saw a clinical psychologist on two occasions for 56 counselling after her employment was terminated. A report dated 19 February 2008 from a counselling psychologist states that Ms Parsons saw the psychologist 13 times in the previous 18 months for various reasons, on 18 and 26 July 2007 in relation to her dismissal, and on 18 January 2007 [sic] to cope with her fears and concerns about the pending Tribunal proceedings. Page 10 [2008] WASAT 145 The respondent's claims and evidence The respondent says the sole reason for terminating Ms Parsons' 57 employment was her unsatisfactory work. Mr Beer presented the case for the respondent at the hearing. Oral 58 evidence was given by Mr Laurier, Mr Healey and Ms Riciutti each of whom also provided a written statement of evidence. Mr Laurier's evidence Mr Laurier is the accountant for the respondent. He gave evidence 59 that, although he understood from her interview that Ms Parsons had extensive experience with debtors, after about two months, it became clear that she was behind in her work and, when he spoke to her, it became clear what little experience she actually had. He showed her what she needed to do and things improved "marginally". After that, he would come to the office each Friday and they would go through the accounts. There is no evidence that he took any other measures to improve her performance. At the end of her three-month probationary period, Ms Parsons was 60 made a permanent employee. She did not receive a pay increase; Mr Laurier told her it would be "left up in the air" and they would see later on how she was going. According to Mr Laurier, however, things did not seem to improve; she was continually late with the accounts and always behind with filing, and in the last three months, her attitude changed to one of "I don't care I'm leaving soon". Mr Laurier concedes that, despite these problems, he had no concerns about making Ms Parsons responsible for training Ms Clarke. Mr Laurier had no part in the warning notice issued by Mr McClure 61 and the Tribunal hearing was the first time he had seen it. He told the Tribunal he knew nothing about Ms Parsons' use of the internet but he had been told her telephone calls seemed to take a long time. At some point, he and Mr McClure discussed the number of days she had off but this does not appear to have come to anything from Mr Laurier's point of view. He knew from others that she usually came in late. He questioned her about being late "a couple of times" but she assured him that she made up the time at the end of the day. Mr Laurier was not involved in preparing Ms Parsons' termination 62 notice or the termination itself. He could not explain why the grounds in the warning notice were different from those in the termination notice as Page 11 [2008] WASAT 145 that had been a matter for Mr McClure. He was not aware of anything that occurred between the warning and the termination notice that would warrant Ms Parsons' termination other than "her overall performance". Mr Laurier agreed that Ms Parsons did not at any time say she had 63 made a final decision about when she would take maternity leave but she did say she would probably work to the end of July. Mr Healey's evidence Mr Healey started work with the respondent in December 2006 as 64 the marketing manager. He spent time at the various offices but was based at Forrestfield. He was usually there on four days each week; he would arrive at different times and stay as little as two, and up to ten, hours. Mr Healey provided a written statement in the form of answers to 65 questions prepared by Mr Beer. The questions were largely self-serving and the responses Mr Healey's opinions. They asked, for instance, whether Ms Parsons' use of the internet was serious enough to warrant a disciplinary notice and whether the respondent only issues disciplinary notices when an employee has had a number of opportunities to correct poor performance (answer to both: yes). In his written statement, Mr Healey said that Ms Parsons was 66 constantly late, creating "a lot of conflict" with other staff; on many occasions, she would not come in at all and would not contact anyone in the office to let them know; she was reprimanded about this on several occasions; she spent "an inordinate amount of time" on personal calls and made excessive use of the internet; her work was never up-to-date, and he received complaints about this from customers and staff as well as about her failure to return telephone calls; she was offered help with her filing on many occasions but "never made good"; one day, he had to use her computer and noticed horoscope websites and "personal internet forums" had been accessed that day and previous days, and he reported this to Mr McClure. He maintained that she was spoken to on "numerous occasions" about being late and failing to call in when sick, and about her telephone and internet use. In oral evidence, Mr Healey said he alerted Mr Laurier about 67 Ms Parsons' lateness "probably once or twice"; he probably told Mr McClure about her punctuality about three times; he would have referred the customers' complaints to either Mr Laurier or Mr McClure. He conceded that much of what he knew came from other staff, as did Page 12 [2008] WASAT 145 what he knew about Ms Parsons being behind with her filing, and other staff told him she was on the internet "all day". Ms Parsons disputes that there was conflict with other staff and, if 68 there was, she was not aware of it. She also disputes Mr Healey's claims about failing to return telephone calls, not coming to work, failing to tell anyone she would not be in and, in particular, that she was ever reprimanded about her performance before 8 June. Ms Riciutti's evidence Ms Riciutti is the accounts manager for the respondent. She works at 69 the Wattle Grove office but would attend the Forrestfield office most days to drop off or pick up paperwork. Her written statement was in the same format as Mr Healey's and gave similar responses. Ms Riciutti maintained that Ms Parsons was dismissed "for the 70 simple reason that she had become extremely lazy"; she was "bone lazy" and "could not be bothered coming to work"; when she did, she did nothing; she was late for work from her first week and was never up-to-date. She was not in a position to observe Ms Parsons directly at work but she got "a lot of feedback" from Ms Parry who rang her "on a weekly basis" about Ms Parsons being late for work; she would ring Ms Parsons herself "on quite a few occasions" and she would not be there. Ms Riciutti claims she told Mr Laurier "at least a dozen times" about Ms Parsons' lateness. Ms Riciutti claimed clients would ring "constantly" complaining 71 about Ms Parsons not returning their calls. She says she told Ms Parsons about the complaints but Ms Parsons disputes this. Ms Riciutti said she knew Ms Parsons was using the internet for 72 personal use because, on one occasion, she saw Ms Parsons and Ms Clarke looking at wedding sites. In Ms Riciutti's opinion, however, only Ms Parsons was in breach of company policy because was she was showing Ms Clarke what to do. Ms Riciutti said she knew Ms Parsons used the telephone for personal use because Ms Parsons would tell her sometimes that her husband, who suffered from depression, had called her. In oral evidence (and contrary to Mr Beer's opening remarks and her 73 own evidence) Ms Riciutti said that, in the beginning, Ms Parsons was "really good", and she made a point of saying to Mr Laurier that he "chose well" in employing her; however, towards the end of the financial year, Page 13 [2008] WASAT 145 she started to get "slack"; she left behind three months worth of unfinished work; there were "piles of filing all over the place" and "a whole heap of filing" in the wrong files. Ms Riciutti claims she told Mr Laurier that Ms Parsons was getting 74 behind with her filing. As with other matters said to have brought to his attention repeatedly, this are difficult to reconcile with Mr Laurier's apparent lack of concern or action. Did Ms Parsons intend resigning or taking maternity leave We heard evidence, some of which was disputed, about whether 75 Ms Parsons had said she intended resigning or taking maternity leave. We accept her evidence on this point and are satisfied her intention was to take maternity leave and that others believed that is what she intended. It is evident, from her conversation with Mr McClure in late May about the requirement to give four weeks written notice, that he believed that is what she intended doing. Ms Riciutti confirmed this when she said that everyone assumed Ms Parsons would be taking maternity leave. Other matters 76 There were a number of matters, some of them the subject of 77 evidence, some of submissions, that in our view are not relevant other than to underline the respondent's attempts to undermine Ms Parsons' credibility. We note them here for completeness: (i) The respondent made a good deal of Ms Parsons' lack of experience with debtors accounts, implying an attempt to mislead, apparently to support its claim that she was terminated for poor performance. We find no evidence of dishonesty on her part. (ii) The respondent asserted that Ms Parsons did not give 10 weeks written notice of the date of her confinement as required by statute. We accept she was not aware of this requirement and, equally, the respondent did not tell her. The respondent contrasted this with the fact that she found out how to lodge a discrimination complaint but that is an unfair comparison. (iii) The respondent also asserted that Ms Parsons failed to give four weeks written notice of her intention to take maternity leave as required by statute. We note, however, Page 14 [2008] WASAT 145 that at the time of her termination, she had still not decided when she would leave. (iv) Ms Parsons' final pay included an overpayment for annual leave of $232.79. The respondent put this to her at the hearing with the implication that she had knowingly accepted an overpayment. However, there was no evidence that she was aware of it or that the respondent brought it to her attention or tried to recover it. (v) We heard evidence about a complaint by a particular customer about their account. Ms Parsons and Ms Riciutti disagreed strongly about this incident and who was responsible. It is irrelevant here, because the complaint letter is dated 4 July 2007, after Ms Parsons was terminated, and could not have formed part of the reason for her termination. The issues for determination The Tribunal must determine: (i) whether Ms Parsons' employment was terminated on the ground of her poor performance or on the ground of her pregnancy (or a combination of both); (ii) if the termination was on the ground of her pregnancy, did the respondent's conduct constitute unlawful discrimination within the meaning of the EO Act; (iii) if the respondent's conduct constituted unlawful discrimination, did Ms Parsons suffer any loss as a result; (iv) if Ms Parsons did suffer any loss as a result of the respondent's unlawful conduct what order, if any, should the Tribunal make. Relevant legislation and law Section 10(1) of the EO Act provides that a person (the 78 discriminator) discriminates against another person (the aggrieved person) on the ground of the pregnancy if - "(a) on the ground of - (i) the pregnancy of the aggrieved person; Page 15 [2008] WASAT 145 (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 was not pregnant; and (b) the less favourable treatment is not reasonable in the circumstances." Section 11(2) of the EO Act provides that it is unlawful for an 79 employer to discriminate against an employee on the ground of the employee's 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." It is for Ms Parsons to make out her case on the balance of 80 probabilities. The standard of proof is the Briginshaw test: "The seriousness of an allegation made, the inherent unlikelihood of 81 an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved": Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. In circumstances such as this, where there is no direct evidence of 82 discrimination, it is open to the Tribunal to determine that there are objective facts from which an inference of discrimination, or otherwise, can be drawn: Page 16 [2008] WASAT 145 "If the facts before explanation contain no direct proof of 83 discrimination …[the Tribunal] may still be able to draw an inference of discrimination of the kind charged; if the proper inference in the absence of explanation is discrimination of the kind charged, and there is either no explanation or an unacceptable explanation, then the inference of discrimination of the kind charged will mean the complaint succeeds": Department of Health v Arumugam [1988] VR 319. An intention to discriminate is not necessary but those forms of 84 words import a causal connection: a deliberate act done with the knowledge of the characteristic of the complainant on which the discriminatory act is performed: Waters v Public Transport Corporation (1991) EOC 92-390. It is settled that taking maternity leave is a characteristic that pertains 85 generally to persons who are pregnant: HREOC v Mt Isa Mines Ltd (1993) 46 FCR 301. Findings and reasons We found Ms Parsons to be a credible and reliable witness who gave 86 her evidence frankly. We found Mr Laurier to be generally credible although he appeared to have reassessed Ms Parsons' performance since she was dismissed and to take a much harsher view now than he did at the time. His assessment now is difficult to reconcile with his lack of action at the time. We place less weight on Mr Healey's evidence. Much of what he 87 claimed about Ms Parsons' performance was based on hearsay and much is difficult to reconcile with Mr Laurier's lack of action at the time. We think he too has exaggerated the extent of the problem with her performance after the event and in light of these proceedings. We did not find Ms Riciutti a reliable witness. Her descriptions of 88 Ms Parsons' performance were in our view exaggerated and calculated to support the respondent's defence in these proceedings. Her evidence was in parts contradictory, for instance as to whether Ms Parsons intended resigning or taking maternity leave. In contrast to her claim that Ms Parsons was late from the time she started her employment and was never up-to-date with her work, she told Mr Laurier early on that he "chose well' in selecting Ms Parsons. Her comments that Ms Parsons was "bone lazy" and "did nothing" when she came to work are not borne out by Mr Laurier, nor is her claim that she told Mr Laurier "at least a dozen times" about Ms Parsons being late for work borne out by his evidence. Page 17 [2008] WASAT 145 Moreover, most of her observations were based on comments she says were made to her by other staff who have not given evidence. We do not accept Ms Riciutti's claims that she was "constantly" 89 receiving complaints from customers about Ms Parsons. If she did receive any calls, they are not reflected in any steps taken by Mr Laurier or in the warning or termination notices. (i) What was the reason for terminating Ms Parsons' employment We are not satisfied that the respondent genuinely considered 90 Ms Parsons' performance so unsatisfactory as to warrant termination. We find the real reason for her termination was the amount of sick leave she took once pregnant which, added to some concerns about her performance, made her, at least in Mr McClure's view, a troublesome employee and rather than have her become entitled to maternity leave, he moved quickly to terminate her employment. We accept that Mr Laurier became concerned about Ms Parsons' 91 work after the first couple of months when it became clear she was not as experienced with debtors accounts as he had believed. We accept he spoke to her once he learned she was having problems with the accounts. She does not dispute this. We also accept that there was only marginal improvement, and that, for a good part of the time she was employed, she was behind with her work, including her filing. However, the respondent's claims about the extent of Ms Parson's 92 poor performance cannot be reconciled with the lack of action by Mr Laurier or anyone else before Mr McClure stepped in on 7 June. We find much of the respondent's claims exaggerated. It is relevant that Ms Parsons was made a permanent employee after 93 three months despite the respondent's claims about her poor performance from very early in her employment. We note that she did not receive a pay increase at the end of the probation period, but are not satisfied this reflects anything more than some degree of concern about her performance and, presumably, confidence it would improve. We do not accept that Ms Parsons' performance was as bad as 94 Ms Riciutti and Mr Healey made out. Ms Riciutti in particular was not in a position directly to supervise or scrutinise her. Mr Healey was in a better position because he spent more time in the same office but we find much of his evidence exaggerated, including that Ms Parsons would not come to work at all and would not let anyone else know, and that she was Page 18 [2008] WASAT 145 spoken to on numerous occasions about being late, failing to call in when sick and excessive personal use of the telephone and internet. Although both claimed to have brought matters to Mr Laurier's attention, Mr Laurier apparently did little other than to talk to her and, in fact, help her. Ms Parsons concedes being five to ten minutes late on occasions but 95 denies that she was spoken to about this and Mr Laurier's evidence was that he accepted her assurance that she made up the time at the end of the day. We accept her evidence about these matters and we accept that none was brought to her attention until the warning notice from Mr McClure. We accept that Ms Parsons left work undone when she was 96 terminated, but we do not accept Ms Riciutti's account of the extent of filing and work left undone by Ms Parsons. Her claims that three months' worth of filing was left behind, documents incorrectly filed and "piles of filing all over the place" cannot be reconciled with Mr Laurier's apparent lack of concern and lack of action or with the failure of Mr McClure to refer to this in the warning notice. We note that the termination notice refers to "behind in workload" but, without the benefit of hearing from Mr McClure, is not clear what that means. We do not accept, on the evidence before us, that the respondent 97 genuinely considered Ms Parsons' performance sufficiently serious to warrant termination. Turning to the termination process itself. 98 As no one other than Mr McClure was involved in dismissing Ms 99 Parsons, we have only her evidence and the evidence of the written notices about what happened. The fact that the warning notice refers only to personal use of the telephone and internet and lateness (which we take to mean lateness for work) is difficult to reconcile with the claims by the respondent's witnesses about the extent of Ms Parsons' poor performance in her actual duties. What "behind in workload" in the termination notice actually refers to is not clear, and the difference in the grounds between the two notices only confuses matters. On its face, the first warning notice was just that. The form clearly 100 envisages up to four warnings. Obviously there will be cases that warrant dismissal after only one or two warnings or no warning at all. However, one would expect a clear failure to remedy the problems identified in the first notice, or something itself warranting summary dismissal, before that would occur. Page 19 [2008] WASAT 145 Ms Parsons claims she took immediate steps to rectify the problems 101 identified in the warning notice and there is no evidence to the contrary. There must therefore be some other explanation for Mr McClure's decision to move directly to dismiss her as he did. We find the most probable explanation was that Ms Parsons' work 102 had been somewhat wanting but not enough to warrant disciplinary action. However, her pregnancy led to her taking additional sick leave (and there is no suggestion by the respondent that she was not actually sick on any of those days) which made her, in the respondent's view, "unreliable", and provided an opportunity or excuse to dismiss her. Ms Parsons would become entitled to 12 months unpaid maternity 103 leave on 3 July 2007. She had indicated she might leave around the end of July or August. The respondent was faced with the prospect of her shortly becoming entitled to maternity leave and returning after up to 12 months. The evidence does not support the view that her performance was so 104 bad as to warrant termination. The fact that it occurred just over two weeks before her entitlement to maternity leave accrued, and the apparent haste with which Mr McClure moved to dismiss her can, in our view, only plausibly be explained by her impending entitlement to maternity leave. (ii) If the termination was on the ground of her pregnancy, did 105 the respondent's conduct constitute unlawful discrimination within the meaning of s10(1)(a)(i) and s10(1)(a)(ii) and s11 (2) of the EO Act We are satisfied, on the evidence we have heard, that the additional 106 sick leave Ms Parsons took once she was pregnant made her, in the respondent's eyes, unreliable. It does not matter that some of that leave, for instance when she had to see a physiotherapist, was not directly related to her pregnancy. We accept Ms Parsons' evidence about the comments made about her absences, by Mr Laurier and Mr McClure. We are satisfied that entitlement to maternity leave is a characteristic 107 that appertains generally to persons who are pregnant. We are further satisfied that, in terminating her employment in the 108 circumstances it did, the respondent treated Ms Parsons less favourably than it would have treated a person who was not pregnant. "Less favourable treatment" necessarily involves another person by 109 comparison with whom Ms Parsons can say her treatment was less Page 20 [2008] WASAT 145 favourable. That person must be in "circumstances" which are "the same" or "not materially different": s 10(1) of the EO Act. The identification of what is commonly called a "comparator" is an 110 essential element of the statutory formula of direct discrimination. There will not always be an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is necessarily hypothetical: see, for example, Dare v Hurley [2005] FMCA 844; Mooney v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 189 93 - 81. We are satisfied that the respondent would not have treated 111 Ms Parsons in the way that it did, that is, to take the opportunity to terminate her employment under the guise of poor performance, if the opportunity presented by her pregnancy had not arisen. We are further satisfied that the respondent's less favourable conduct 112 was not reasonable in the circumstances. Ms Parsons provided medical certificates for her sick leave and there is no suggestion it was not genuine. She had a lawful entitlement to maternity leave after 12 months employment. We accept the respondent had some grounds for concern about her work but not to the extent that warranted termination. Moreover, it was unreasonable to put her on notice about her performance and then dismiss her one week later when she says, and the respondent does not dispute, she had taken immediate steps to rectify the problems she had been warned about. (iii) If the respondent's conduct constituted unlawful discrimination, did Ms Parsons suffer any loss as a result We accept Ms Parsons' evidence, which is not in dispute, that she 113 was left distressed by the events surrounding her termination and that she sought counselling in relation to it. We note her evidence that she was not depressed but "not far from it" for a period. We have limited information about the extent of distress or how long it lasted. We find the damage she suffered in this regard to be at the lower end of the scale. (iv) If Ms Parsons did suffer any loss as a result of the respondent's conduct, what order, if any, should the Tribunal make We accept Ms Parsons' evidence that she had intended to keep 114 working until she was 34 weeks pregnant. We see no reason to doubt her claim. We award her $7869.80 for loss of earnings for the period between Page 21 [2008] WASAT 145 her termination and 24 August 2007. We award her $2500 general damages. The respondent must provide Ms Parsons with a Statement of 115 Service within 21 days of the date of this order. Orders 1. The respondent is ordered within 28 days of the date of this order to: (i) pay to the applicant $7869.80 for loss of earnings and superannuation; (ii) pay to the applicant $2500.00 for general damage; and (iii) provide the applicant with a Statement of Service for the period she was employed by the respondent. I certify that this and the preceding [115] paragraphs comprise the reasons for decision of the State Administrative Tribunal. ___________________________________ MS J TOOHEY, SENIOR MEMBER Page 22