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Where am I now? Lawlink > Anti-Discrimination Board > Publications > Carers’ Responsibilities and the question of ‘reasonableness’ - Equal Time, March 2004
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Carers’ Responsibilities and the question of ‘reasonableness’ - Equal Time, March 2004
 Introduction
What were the arguments?
The Appeal
Introduction
A recent decision of the appeal bench of the Administrative Appeals Tribunal has shed further light on the question of “reasonableness” in relation to carer’s responsibilities.
The case had been the first to be decided under the carer’s responsibility provisions contained in the NSW Anti-Discrimination Act, 1977. It involved a WorkCover manager who argued that, rather than relocate to the Central Coast, she could remain in Sydney and work from Sydney based Workcover offices. She said that the amount of travelling between her home and the Central Coast would prevent her from caring properly for her children in that she would have very restricted time to see them on the days she travelled to Gosford.
She argued that requiring her to move her office to Gosford was indirect discrimination on the ground of carer’s responsibilities.
The definition of indirect discrimination is if the employer “requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.” (49T1(a) ADA).
Along with a high proportion of other people with carers’ responsibilities, the applicant could not, she said, comply with the requirement to relocate to the new offices. Indeed, all of the managers who did not have specific, direct carers responsibilities, as defined by the legislation, were men. All of them could comply with the requirement. Both of the women managers had specific, direct carers’ duties and neither was able to relocate.
The applicant claimed that the discrimination was unlawful, because it was not a reasonable requirement. 
The applicant said that she hadn’t known the proposed move would affect her when she accepted her position. She said that she hadn’t taken up the offer of another job, or help with relocation, because she was hoping to stay in Sydney in her present position.
WorkCover tried to negotiate a compromise arrangement, offering her the opportunity to work more flexible hours. The applicant claimed, however, that despite flexible hours, the extra travelling meant that she could not care for her children.
The tribunal dismissed the application because, it said, she had the onus of proving that the requirement to work five days per fortnight at Gosford was “not reasonable having regard to the circumstances”. She hadn’t proved the requirement was unreasonable.
The Tribunal stated that, to decide whether the requirment was reasonable, it had to balance the nature and extent of its discriminatory effect against:
- The reasons for the requirement, including commercial considerations;
- Whether the requirement is appropriate, adapted to its purpose, and has a logical and understandable basis; and
- Whether there is a less discriminatory option, accommodating the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition.
It accepted that Workcover had good management reasons for the move to Gosford, and the applicant had known about it for some time. Workcover had made a serious attempt to find an accommodation that would allow the applicant to fulfill her caring responsibilities, including reducing the number days she had to work in Gosford.
The applicant appealed. The appeal
Before the appeal bench, it was argued on behalf of the applicant that the tribunal had imposed the wrong test. It wasn’t a question of “balancing” the arguments for and against the requirement, it was claimed. Rather, the tribunal should have “weighed” the arguments. The appeal bench did not find this argument very strong.
It also rejected the applicant’s argument that the tribunal had not taken into account the right considerations in reaching its conclusions.
The applicant’s legal representative produced a list of considerations that should be taken into account. These included the nature of the employer, the job, the requirement and it’s rationale. Other relevant considerations listed included the effect of the requirement on the applicant, the interests of third parties, financial implications, the employer’s EEO policies, the availability of less discriminatory options.
The appeal bench noted that there is no list of considerations contained in the Act but that the tribunal had considered most of the factors listed anyway. It stated that the tribunal had found that there “was no disproportion between imposition of the requirement …and the efficient and effective performance of the activity in which [WorkCover] was engaged.
The appeal was dismissed.
Gardiner v NSW Workcover Authority [2003] NSWADT 184 911 August, 2003;
Gardiner v WorkCover Authority of NSW (EOD) [2004] NSWADTAP 1.
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