FEDERAL CIRCUIT COURT OF AUSTRALIA
ZAHRA v PHARMACY MANAGEMENT AVOCA BEACH PTY LTD	[2015] FCCA 1511	

Catchwords: 
INDUSTRIAL LAW – Fair Work – adverse action – whether the respondent engaged in adverse action on the grounds of disability discrimination – application dismissed.  	

Legislation:  
Disability Discrimination Act 1992
Fair Work Act 2009 ss.336, 340, 351, 361	

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32	

Applicant:	NICOLE ZAHRA	

Respondent:	PHARMACY MANAGEMENT AVOCA BEACH PTY LTD	

File Number:	SYG 38 of 2014	

Judgment of:	Judge Street	

Hearing date:	2 June 2015	

Date of Last Submission:	2 June 2015	

Delivered at:	Sydney	

Delivered on:	2 June 2015	

REPRESENTATION
Counsel for the Applicant:	Mr R. de Meyrick	

Solicitors for the Applicant:	CBD Law	

Counsel for the Respondent:	Ms M. Linkenbagh	

Solicitors for the Respondent:	Dina Lawyers	

ORDERS
(1)	The application be dismissed. 
(2)	The applicant pay the first respondent’s costs fixed in the sum of $5000.

FEDERAL CIRCUIT COURT OF AUSTRALIA 
AT sydney	
SYG 38 of 2014
nicole zahra	
Applicant

And

pharmacy management avoca beach pty ltd	
Respondent

REASONS FOR JUDGMENT
1.	This is an application within the Court's jurisdiction under s.566 of the Fair Work Act 2009 for alleged contravention of s.340 and s.351 of the Act.  The applicant was a pharmacist's assistant who had been working part time at the Avoca Beach Pharmacy since 6 April 2011 which was taken over on 2 September 2013 by the respondent. The respondent is a corporate entity that was at all material times controlled by a Mr Admir Megaly.  Mr Megaly is an experienced pharmacist who had obtained his degree from the University of Cairo. He arrived in Australia in 2008 and commenced practising as a pharmacist in Australia after having fulfilled the requirements necessary for practicing in Australia.
2.	The applicant's case is advanced on the basis that there were communications between the applicant and Mr Megaly concerning proposed surgery by a Dr Meek. It is alleged Mr Megaly was informed by the applicant that the operation was to take place on 17 October 2013.   Dr Meek provided a report indicating that the applicant had first consulted him on 6 September 2013 in relation to suffering from varicose veins, which condition was identified as one she had suffered from over the past 25 years.
3.	The applicant said she first noticed the veins at the age of 18 and that they became worse following two pregnancies when she was 23 and 25.  Dr Meek noted that the applicant claimed both her right and left legs were equally affected and complained of aching legs, especially when standing upright, with a degree of swelling around the ankles.  Dr Megaly identified that the applicant underwent a duplex scanning on her veins on 19 September 2013 which was a preliminary procedure necessary to be performed before fixing as a matter of certainty the operative procedure.
4.	Dr Meek identified that it was his staff that booked the Gosford Private Hospital and I accept that there was a tentative booking made on 6 September 2013 for 17 October 2013 by the staff of Dr Meek.  On 10 October 2013 the applicant was dismissed by Mr Megaly on behalf of the respondent. On 17 October 2013 the applicant had surgery carried out at the Gosford Private Hospital  The applicant also gave evidence of an alleged conversation with Mr Megaly during the first week of his commencement as the responsible pharmacist and employer of the applicant in which the issue of the applicant going on a cruise at the end of November was raised.  
5.	There was a conflict between the evidence of the applicant and that of Mr Megaly in relation to the conversations concerning the proposed cruise and shortly thereafter an alleged conversation concerning the intended operation by the applicant on the varicose veins in her legs. There was also a material conflict between the evidence of the applicant and Mr Megaly in relation to the way in which the applicant was interacting with Mr Megaly in the pharmacy as her employer.  There was also a conflict as to the circumstances surrounding what Mr Megaly said was the private conversation on the afternoon of 10 October giving rise to the dismissal of the applicant.
6.	In relation to the application of ss.340 and 351 I take into account the object identified in s.336 of part 3.1 of chapter 3:
	Objects of this Part
	 (1)  The objects of this Part are as follows:
	 (a)  to protect workplace rights;
	 (b)  to protect freedom of association by ensuring that persons are:
	 (i)  free to become, or not become, members of industrial associations; and
	 (ii)  free to be represented, or not represented, by industrial associations; and
	 (iii)  free to participate, or not participate, in lawful industrial activities;
	 (c)  to provide protection from workplace discrimination;
	 (d)  to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.
	 (2)  The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise). 
7.	In relation to the application of both ss.340 and 351 I take into account the legislative framework and principles identified in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 relevantly at [5], [15], [21], [41]-[45] and [127]-[129].
8.	In relation to the application of s.351 I take into account the definition of "disability" in s.4(a) and (e) of the Disability Discrimination Act 1992 which are as follows:
	"disability " , in relation to a person, means:
	 (a)  total or partial loss of the person's bodily or mental functions; or
	…
	 (e)  the malfunction, malformation or disfigurement of a part of the person's body; or
9.	In relation to s.351 I do not accept that the applicant had a partial loss of body function within the meaning of s.4(a) so as to constitute a disability or a malfunction, malformation or disfigurement of part of a person's body falling within s.4(a).  I take into account that the applicant denied that she had any disability and I do not regard the temporary period of recovery of an operation in relation to varicose veins as giving rise to a disability within the meaning of s.4 of the Disability Discrimination Act 1992.
10.	Even if contrary to the finding I have made that the applicant did not have a disability within s.4 of the Disability Discrimination Act and was properly characterised as a person who had a disability within the meaning of s.351 I find that the respondent did not take any adverse action against the applicant because of any alleged disability.  In that regard it was accepted by both counsel that there was in essence a credit conflict in this case at the heart of the allegations in respect of the alleged contravention.
11.	I do not accept the applicant as a credible witness and in respect of the conflict between the applicant's evidence and that of Mr Megaly I prefer Mr Megaly's evidence.  In making those adverse findings I take into account that the applicant's emphatic denial of being rude and abrupt to Mr Megaly which does not sit with the evidence that I accept from Mr Megaly, Mr Hudson and Mr Lewis as to the existence of a serious conflict in the working relationship, between the applicant and Mr Megaly.
12.	I take into account in that regard the applicant's denial of conversations put to her by counsel for the respondent of her own version of the conversation in her affidavit at para.20 and I take into account in relation to the adverse credit finding of the applicant her own evidence that she cannot recall dates which I regard as consistent with the unreliability of her evidence.  In relation to the alleged conversation with Mr Megaly concerning the operation the applicant conceded in cross-examination that it may be the position it was only a tentative booking that occurred on 6 September 2013.
13.	I accept Mr Megaly's evidence that the manner and presentation of both the booking for the cruise and the information relating to a potential operation was presented in a dictatorial manner of instruction rather than presented in a precatory manner or one in which there was any discussion or compromise or polite consultation.
14.	The recounting of the conversation as to reasons for departure between the applicant and her niece Ms Emerson is also a matter that I take into account in relation to the assessment of the applicant's credit.  The applicant initially gave evidence identifying a criticism of Mr Megaly conveyed by her niece that he was incompetent and getting confused and changing procedures and that her niece was frustrated.  Ms Emerson, who was called to give evidence, was asked about why she was leaving, was asked about whether she explained reasons for why she was leaving with her aunt and said that she did not.
15.	That conflict, with the applicant's evidence, is in my assessment of greater significance given the assertion by the applicant of a good working relationship with Mr Megaly up until the time that she left.  That evidence, together with the proposition that the applicant maintained that in essence she was a cooperative and good employee, flies in the face of the evidence of Mr Megaly, Mr Lewis and Ms Hudson, and is also inconsistent with the evidence of the applicant as to the reasons for departure by Ms Emerson which I find makes clear that there was a significant conflict and dysfunctionality in the working relationship between the applicant and Mr Megaly. I find that this conflict and dysfunctionality was primarily due to the inappropriate conduct of the applicant.
16.	The applicant's demeanour in the witness box and response to the questions put was entirely consistent with a dictatorial manner in dealing with Mr Megaly.  On the other hand, Mr Megaly impressed me as a witness of truth. I regard the alleged inconsistencies in his affidavit as to the description of Ms Emerson as a niece as being of no materiality and when the affidavit is read as a whole I accept the explanation by Mr Megaly that he was trying to recreate the effect of the conversation and that his reference to "niece" was descriptive and not an admission of some inconsistency in the version of the events he was seeking to recount. 
17.	I also accept Mr Megaly's assertion that he felt pressured by the applicant in relation to the taking on of Ms Emerson and his evidence is corroborated in that regard by the email correspondence annexed to his affidavit.  I find that the applicant did inform, by way of a dictatorial communication, Mr Megaly that she was going to have a cruise at the end of November consistent with the evidence of Mr Megaly. I find after 6 September 2013 that there was a conversation between the applicant and Mr Megaly in which she told, by way of instruction, Mr Megaly that she was taking a month off at the end of November 2013 to go on a cruise and that she was going to have a cosmetic varicose vein operation in a month or two, when she would need to take a week off work.
18.	I accept from Mr Megaly that the date of the operation was not mentioned and I accept that Mr Megaly replied to the effect he would like her to give him 10 to 15 days' notice of the date of the operation so he could make arrangements to cover for her absence and that the applicant agreed to do so.  I reject the applicant's version of the conversation and I reject the evidence of Ms Emerson that she was present at that conversation.  I find that Ms Emerson was not a reliable witness and I accept the respondent's submission that the almost identical conversations between the applicant and her niece with Mr Megaly, given the manner in which Ms Emerson's affidavit was taken, is a material concern in relation to the credibility of Ms Emerson.
19.	I do not accept that Ms Emerson was present at any conversation in which Mr Megaly and the applicant discussed the operation in relation to the applicant's varicose veins.  I accept Mr Megaly's evidence that by the end of September it become apparent to him that there was a serious relationship problem in working with the applicant and that the applicant's manner of interaction with him was inappropriate, rude and discourteous and contrary to an effective working relationship as pharmacist and pharmacist's assistant. To the extent necessary I find that the conduct of the applicant in that regard was sufficiently serious to justify summary dismissal of the applicant.
20.	I accept Mr Megaly's evidence that on 10 October 2013, in the afternoon, he took the applicant aside for a private conversation in which he said to her words to the effect:
	 "We can't continue with each other" and I accept in that conversation he said words to the effect, "I'll have to let you go.  We can't continue.  At least I'll pay you for two weeks but don't come in on Monday".
21.	There was criticism of Mr Megaly in relation to his version of the conversation in relation to the identification of the proposition, "We can't continue with each other".  It is clear from the response filed that there was contended by the respondent a serious breakdown in the relationship between the applicant and Mr Megaly.  The applicant identified in the response at paragraph 4:
	4. As to paragraph 2.11, I did have conversations with Mr Lo to the effect that Mr Megaly suggests however, there were also disagreements between the Respondent and the previous owners about which party should meet the costs of a number of orders. It was when finalising these matters that I was used as a go-between. Mr Megaly said to me words to the effect of:
	'It's easier if you talk to Mr Lo. '
22.	The applicant contended that the reference to the operation and having booked the cruise were operative reasons for the dismissal of the applicant and that the operation was accordingly a prohibitive reason.  I reject the applicant's construction of para.4 and I reject the contention that there was any prohibitive reason in the dismissal of the applicant by the respondent.  I find that the respondent dismissed the applicant by reason of the breakdown in the relationship between the pharmacist and the pharmacist's assistant and by reason of the business financial situation.
23.	The applicant sent a letter at 17:41 on 10 October 2013 to the respondent requesting a termination letter and referring to the conversation that had occurred at 3 pm earlier giving the applicant two weeks' notice of termination.  That letter identified alleged entitlements of the applicant and relevantly referring to notice in annexed material by reference obtained from the Fair Work Commission site.  All those entitlements were paid by the respondent before the commencement of these proceedings.
24.	In response to that email the first respondent sent a letter relevantly as follows:
	I am sorry to inform you that your employment has been terminated taking effect from date 11/10/2013. The reason behind this termination is due to business financial situation. 
	As a new owner I have some financial issues and can’t afford to pay higher wages as yours specially after your salary been increased as per your request. 
	As per law, you will be getting paid for all your entitlements holidays with loading notice of termination. 
	Plus two weeks notice of termination, plus extra one week for being over 45 years old. 
25.	I accept Mr Megaly's explanation that he did not wish to inflame the situation with the applicant by explaining more fulsomely the breakdown of the working relationship with the applicant.  I do not regard Mr Megaly's evidence in this regard to lack credibility because of the failure to refer to the first part of the conversation, which I accept took place, "We can't continue with each other".  In this regard I note that Mr Megaly had said in his first affidavit filed on 8 April 2014 that there was a private conversation and he had identified in his response that he had not set all the reasons and the respondent in its response identified that all the reasons had not been set out which was also deposed in the affidavit. Nor was Mr Megaly directly cross examined on the meaning of that private conversation.
26.	I have taken into account s.361 and I find that the respondent has proved that there was no prohibitive reason in the action taken to dismiss the applicant.  I find that there was no contravention of s.351 or s.340 of the Act.  I find that the respondent's reasons for dismissing the applicant were the breakdown in the working relationship between the pharmacist and the applicant as the assistant pharmacist and the financial situation of the business of the respondent.
27.	I note that even if contrary to the view that I have expressed as to there being no disability within s.4 is wrong and that there was a disability within s.4, I find that any such disability was not a reason for the adverse action allegedly taken by the respondent.  I find that the applicant's varicose veins and her intended operation and her intended leave for the purpose of that operation were no part of the reasons of the respondent in dismissing the applicant.  I find that the applicant's varicose veins, operation and intended leave were not reasons for the alleged adverse action under ss.340 or 351.  
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate:  

Date:  4 June 2015