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Age discrimination - café seeking “young team” discriminated against older applicant
The Queensland Anti-Discrimination Tribunal found that a café discriminated against a chef when he replied to an advertisement for someone to join a “young team”.
The 46-year-old man said that when he rang the café, a director of the company that owned the café asked him how old he was. When he said he was over 21, she told him to drop his resume in to the cafe.
He said that when he went to the café he had a further conversation with the director in which he told her he was 46 and she said she only had a young team. She said she would set up a trial but he did not hear from her again.
At the hearing, the director said the advertisement used the words “young team” because some older workers did not like working with young people. She said she had terminated the original phone call because she did not like the man’s attitude, and she denied asking him to drop in his resume or speaking to him in person at all. However the Tribunal found that her evidence was “evasive and unhelpful”.
The Tribunal ordered $2,500 in damages for hurt and humiliation, but denied the man compensation for lost wages.
Gardener v Norcott [2004] QADT 39
Age discrimination – provision of insurance
This case was an unsuccessful complaint of age discrimination in the provision of goods and services lodged by a barrister against the Barrister’s Sickness and Accident Fund Pty Ltd.
The Fund had informed the complainant that it would not extend its insurance cover to clients over the age of 70. Although there is an exception to the age discrimination provisions in section 492YT of the Anti-Discrimination Act 1977 (NSW), relating to the terms on which annuities, life assurance policies and accident or insurance policies are offered or may be obtained, the complainant argued that the exception did not apply in this instance.
The complainant argued that the exception did not provide a defence to the unlawful act of refusal because the exception is confined to ‘the terms’ on which insurance could be offered and not to a ‘refusal’ to provide insurance.
The complainant sought to rely on the High Court decision of AMP v Goulden as authority for the proposition that there is a distinction between ‘refusing to provide goods and services’ and the ‘terms on which the other person [was] provided with the goods and services’. Accordingly, he argued that the exception would be limited to discrimination ‘with respect to the terms’ on which the relevant policy was offered and not permit an outright refusal to offer life insurance.
However, the Tribunal found that Goulden’s case was not relevant to the complainant’s case. Instead the Tribunal referred to Rose v Secretary, Department of Social Security. This case noted that exceptions in beneficial legislation should not necessarily be interpreted narrowly in favour of the intended beneficiary. Rather, the court held that attention should be paid to the purpose of the provision. This means that if the provision was construed narrowly, that is, to limit it to ‘terms’ and not ‘refusal’, then the intention of the provision would be destroyed.
Following this reasoning, the Tribunal found that the Barrister’s Sickness and Accident Fund had satisfied the relevant provisions of section 49ZYT. It found that the respondent fund’s decision to refuse cover, although based on the applicant’s age, was also based on relevant actuarial or statistical data and was reasonable having regard to the data available and to the mutual nature, size and financial viability of the fund and therefore its actions were not unlawful.
The complaint was therefore dismissed.
Leslie v Barristers’ Sickness and Accident Fund Pty Ltd [2003] NSWADT 216Age discrimination - Virgin Blue face $80,000 damages for age discrimination
The Queensland Anti-Discrimination Tribunal determined substantial damages against Virgin Blue following a Tribunal decision that it had discriminated against eight women over the age of 36 who applied for flight attendants’ jobs but were rejected because of their age.
The case involved a group of experienced flight attendants, aged between 36 and 56, who applied for positions with Virgin but were rejected after attending the group assessment stage of its recruitment process.
In determining the damages Tribunal member Douglas Savage SC said the rejected flight attendants had ‘at least as much chance as any other person displaying the requisite behavioural competencies and other matters necessary to obtain employment’.
‘It is manifestly unlikely that the complainants, all of whom were trained flight attendants, would fail basic training in the skill in which each had been performing for many, many years.’
‘Further, their life experience and maturity probably would have seen them do well in the situation of a personal interview.
‘In my view, each would have been more likely to obtain employment than a ‘newcomer’,‘’ he said.
While Virgin Blue had actively sought out former Ansett staff because of their qualifications and experience they ‘did nothing to address the concern that its recruitment process for a very significant period did not employ any one over 36 years of age, although the selection process was professedly age neutral and there were substantial number of older applicants for employment after Ansett collapsed’ Tribunal Member Savage said.
Tribunal member Savage found that while the initial discrimination was unintentional, the system of assessment was deficient and ‘too cursory to properly test behavioural competence, rather than irrelevant personal features such as age’. He found that Virgin Blue’s recruitment processes for cabin crew was not merit based, and ‘treated older people differently than younger people in similar circumstances’.
Tribunal member Savage criticised the airline’s argument that any general damages should be nominal, and that the injury the attendants had suffered was ‘not great’. He said this trivialised Virgin’s ‘significant contravention’ of the State Anti-Discrimination Act.
He said the airline’s action in ‘very publicly’ arguing there was no basis for the complaints had ‘exacerbated the affront’ to the applicants and justified a greater amount of damages.
Tribunal member Savage awarded between $7,000 to $12,000 in total damages to each of the former flight attendants, plus interest. The women also won costs.
Hopper and others v Virgin Blue Airlines Pty Ltd [2006] QADT 9 (29 March 2006)
C
Carer’s responsibilities and disability discrimination
A man who worked for a large bank made a complaint of carers’ responsibilities and disability discrimination after his duties were changed as part of a restructure while he was on parental leave. He thought that his position was the only one that had been changed.
In the process of investigating the complaint evidence was presented that the restructure had been discussed before the man went on parental leave, including the changes to the man’s position. It was also revealed that the duties of many positions had been altered.
The complaint was resolved when the man accepted this evidence. The employer also acknowledged that greater transparency in dealing with restructuring could have prevented the problem.
Carer’s responsibilities discrimination
The complainant cares for her frail and elderly mother. This requires her to take time off work to take her mother to various medical appointments. She tries to organise the appointments so that they occur on the same day. She alleged that her employer directly discriminated against her because of her responsibilities as a carer when it refused to allow her to take a combination of leave in order to have every Friday off.
The employer asserted that it had provided the complainant with a variety of other options including the option of working part-time so as to enable her to balance carer’s responsibilities and her work. This included the offer of working part-time on a permanent basis, which the complainant had rejected. The respondent asserted that it could not allow the utilisation of leave in this manner as an ongoing and infinite arrangement. The matter was resolved when the woman was granted permission to continue to take a variety of leave to cover the absences for a fixed period of time.
Carers’ responsibilities – case dismissed
This case is the first decision that the Administrative Decisions Tribunal made in relation to an alleged breach of the carers’ responsibilities provisions of the Anti-Discrimination Act 1977 (NSW) (ADA), which came into effect on 1 March 2001.
The complainant was employed as a senior manager by the respondent. She alleged that her employer discriminated against her on the basis of her carers’ responsibilities and her sex when they required her to be based in Gosford from 21 October 2002, and attend that office for around five days per fortnight, along with the majority of employees previously working at the organisation’s head office in Sydney. The complainant said that she could not comply with the requirement because of her responsibilities for the care of her two youngest children, who were aged six and eight.
The respondent submitted that the complainant was not a person who had
responsibilities as a carer as defined by the ADA, and had failed to identify any specific responsibilities that had been affected by the requirement to be based in Gosford. It argued that it could never accommodate the requirements of a parent who has 24-hour responsibility for the needs of their child.
However, the Tribunal supported a broad interpretation of the meaning of carers’
responsibilities, saying that ‘there is no basis… for confining the responsibilities to care for and support another person to particular categories of care and support’, such as dropping off, picking up or attending to a person who is sick. The Tribunal found that the complainant has responsibilities to care for and support her two youngest children.
The Tribunal accepted that the employer had imposed a requirement on the complainant to work in Gosford at least part of the time. It found that the complainant could not comply with this requirement because of her carers’ responsibilities, and that this was indirectly discriminatory because a higher proportion of men or people without carers’ responsibilities would be able to comply with it.
However, the Tribunal found that the requirement was reasonable in all the circumstances. The Tribunal accepted that it was more efficient and effective from a management point of view for the complainant to be based in Gosford, to meet and interact with staff, colleagues and supervisors. The Tribunal also considered that the respondent had made a serious attempt to accommodate the complainant’s carers’ responsibilities. Options canvassed included changes to core working time, changes to meeting times and discretion in regard to requirements to attend particular meetings. Eventually the complainant was directed to work at Gosford for five days per fortnight.
In addition, the Tribunal found that the complainant had known since February 1999 that she may be required to move to Gosford, and had in fact known this when she applied for that particular job, even though she was not told directly that her position would be moving until June 2001. All employees whose positions were to be relocated were given other options such as consideration for relocation and assistance to find another position in the public or private sector. The Tribunal found that the complainant did not take up any of these options before being told specifically that her position would be moving, as she was hoping to convince management to keep her at the city office. The complainant’s case was therefore dismissed. The decision has been appealed.
Gardiner v NSW Workcover Authority [2003] NSWADT 184
Carers’ responsibilities - changes to hours not unfair
The Australian Industrial Relations Commission ruled that a small copying business did not dismiss a woman unfairly when it changed her working hours.
The woman was initially employed to work from 9.30am to 4.30pm, to enable her to take her daughter to and from school. Later she was promoted to managing a branch store and her hours were changed to 8am to 5.30pm.
After a day off sick she received a message to report to another, more distant store the following week. She said that when she spoke to the employer about the fact that she could not get there on time he was “uninterested and dismissive”. She went to the new store but arrived late and received a warning.
After she went home feeling anxious and unwell, she was told to bring back her keys, and she understood that she had been fired. The employer disputed this, arguing that she had abandoned her employment.
The Commission concluded that the company had initiated the termination, but found that as hours of work were crucial to such a small business, this was not harsh, unjust or unreasonable. However Commissioner Hingley said that the woman’s needs could have been handled more sympathetically. The company was ordered to pay the woman one week’s pay in lieu of notice.
Philpott v Zip Copies Trust Pty Ltd c/o Zip Copies PR953788
Carers’ responsibilities - part-time work
The Administrative Decisions Tribunal found that a transport company discriminated against a woman on the grounds of carers’ responsibilities by imposing a requirement that its employees work full time.
The woman had asked to work three days per week for a period of time as she had been unable to find suitable child care but had arranged to take her daughter to her mother’s place 25 kilometres away.
The company had refused on the basis that they needed the woman to work full-time as she was a manager, and they believed her proposal was unworkable. The woman subsequently resigned.
The Tribunal found in the circumstances the requirement to work full-time was unreasonable. It found that the company had failed to properly consider the woman’s proposal and had responded to it in a “knee-jerk” way. The company was ordered to pay the woman $16,000.
Reddy v International Cargo Express [2004] NSWADT 218Carers' responsibilities - refusal to allow part-time return to work discriminatory
The NSW Administrative Decisions Tribunal partially upheld a claim that the TravelSpirit Group Pty Ltd unlawfully discriminated against a new mother on the basis of her caring responsibilities.
The company refused her request to return to work part-time following maternity leave. They offered her alternative jobs that were part-time, however they weren’t as well paid or as convenient. They also discriminated against her when they banned her from speaking Arabic at work.
The Tribunal found that the company failed to give full and proper consideration to whether the travel consultant could perform her role part-time on the basis she proposed, or a variation on her proposal.
The company also discriminated against the consultant on the basis of race when it directed her not to speak in Arabic at work, the Tribunal found.
It ordered the employer to pay the consultant $5,000 in damages.
Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 (15 December 2005)
D
Disability discrimination
The complainant had worked as a storeman for a major chain store for over 30 years. He had badly injured his shoulder while on holidays, and requested light duties upon his return. He alleged that the company told him he could only come back when he was fully fit, and as a result he had used up all his leave and was now in a difficult situation.
The company said that they had discussed with the man what work he could do and the only work they thought suitable was as a cashier, but he had rejected this. The man later explained that he was very unsure about handling money and was not confident that he would be able to do the job and might even be sacked.
By the time of the conciliation conference several months later, the man was back at work on other light duties. At conciliation, the company accepted that there had been some problems with the man’s medical certificates and their handling of them, particularly as the man’s condition improved and the range of work he could do increased.
The complaint was resolved when the company agreed to pay the man compensation of $2000, provide a letter of regret, and return him to his previous job as soon as he was fit to do so. The store also agreed to ensure that the man’s supervisor was sympathetic to his situation.
Disability - anti-bullying HR policy upheld
The Federal Court found that Goldman Sachs JB Were Services Pty Ltd breached a financial advisor’s employment contract when it failed to adhere to its own HR policies.
The employee developed a depressive disorder and his employment was subsequently terminated by the company. His depression developed after a long dispute over the method of allocating clients to advisors.
The Federal Court’s ruling is a clear indication to employer’s that HR policies are legally binding as parts of employment contracts.
The company’s Working With Us (WWU) policy set out grievance handling procedures, the company’s goals in providing a healthy and safe working environment, strict policies against bullying and harassment of staff, and a code of conduct dealing with ‘integrity’. Justice Wilcox ruled that the provisions of the WWU were binding on employer and employee. Despite contrary arguments by the company, he said that Company managers and employees all considered the WWU binding. Mangers were expected to adhere to the policy when dealing with staff and employees could be disciplined for breaching it.
The court found that the company breached the policy in three important ways. It failed to provide a healthy and safe workplace; it didn’t prevent the employee from being bullied and harassed; and it did not follow grievance procedures as set out in the policy.
Justice Wilcox ordered damages of $515,000 for past and future loss of income and general damages for breach of contract. Unusually, the award contained a provision that if there wasn’t an appeal, then damages would be reduced by $50,000. Justice Wilcox reasoned that, while the company had a right to appeal, an appeal would delay the worker’s return to work and recovery; this would therefore justify the extra damages.
Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 (23 June 2006)
Disability discrimination - casual worker succeeds in disability claim
The Victorian Civil and Administrative Tribunal (VCAT) found that a casual worker was discriminated against after his employer discovered he had previously lodged a Workcover claim.
The company was ordered to pay $12,500 with VCAT finding the employer discriminated against the casual worker on the grounds of impairment after it had stopped offering work to him. The man had been working casually for the company when he went for an interview for a fulltime position. He was unsuccessful, then found his casual work petered out.
He alleged that in the interview, he’d told the panel he had a preexisting injury. The Tribunal made no finding on that point. However it accepted evidence from an AMWU official that the HR manager had inadvertently told her that the man had been put off because he had a previous WorkCover claim.
The Tribunal concluded that the substantial reason the Complainant’s name was removed from the list of casual employees was because of his previous WorkCover claim.
Because of the discriminatory behaviour by the HR manager, VCAT ruled that PrixCar was vicariously liable and ordered $7,500 compensation for lost wages, and $5,000 for pain and suffering.
Ronald Lester Dekretser and PrixCar Services Pty Ltd [2005]VCAT738 [22 April 2005]Disability discrimination – colour-blind man wins right to drive ambulance
The Administrative Decisions Tribunal found that the NSW Ambulance Service contravened the NSW Anti-Discrimination Act by refusing to employ a man with a mild form of colour blindness.
The man is a trainee nurse and has had a commercial driving licence since 1995. He previously spent some years driving in underground mines where he was required to follow complex light systems and perform other tasks involving colour reference and identification.
The tribunal held that there is no evidence that people with protanopia (who can distinguish all colours except subtle differences between red and brown) are not safe drivers. It rejected the Service’s claim that the man was unable to perform the inherent requirements of the job due to his disability, and recommended that further tests be conducted in work-like circumstances to determine his suitability for employment.
Browne v NSW Ambulance service [2004] NSWADT 192 revised 10 September 2004
Disability discrimination - colour blindness not a barrier
The NSW Administrative Decisions Tribunal found that the Ambulance Service of NSW discriminated against a colourblind man who applied for employment as a trainee ambulance officer.
Mr Clunes was required to undergo a series of steps in the process of successfully becoming a trainee officer. He was up to stage five which involved a health assessment. As part of the assessment he had to undergo some vision tests; he was assessed as failing the Service’s colour vision standard (he registered as red/green colourblind). The Service indicated it was reviewing its standard but, in the meantime, said that Mr Clunes had not been successful in obtaining a trainee position in the basis he could not perform one of the inherent requirements of the position.
The Tribunal noted that the complaint of Browne v NSW Ambulance Service had been decided in 2004 and that it was similar to Mr Clunes’ case. In Browne, the Tribunal found unlawful discrimination by the Service and that the Service had not made out its claim that Mr Browne could not perform the inherent requirements of the job.
In essence the Ambulance Service did not contest Mr Clunes case other than to deny it had subjected him to unlawful discrimination. It referred to the Browne case and indicated that it was in the process of developing a colour vision testing process to be used in assessing suitability for employment as an ambulance officer. The Tribunal noted that the Service was essentially asking it to delay making a finding on the merits of the complaint until it received a report on the new testing process. The Tribunal said it was unable to do so and that the appropriate move for the Service would have been to apply for an exemption from the ADA to cover it in the meantime. It had not done so.
The Tribunal ordered the Service to reconsider Mr Clunes’ application without reference to the standard for colour vision which it had previously applied to him and offer him employment, and also ordered it to pay $5000 compensation for the amount of time and effort he had spent in pursuing his goal of becoming an ambulance officer. The Service is appealing against the decision.
Clunes v Ambulance Service of NSW [2006] NSWADT 103
Disability discrimination - demotion due to depression discriminatory
The Federal Magistrates Court ruled that the Navy discriminated against a former officer who was demoted after she took sick leave for depression. Federal Magistrate Murray McInnis found that the Navy discriminated against the female Lieutentant on the grounds of disability in breach of the federal Disability Discrimination Act.
Federal Magistrate McInnis rejected additional allegations of sex discrimination involving the officer’s treatment at HMAS Stirling naval base in Western Australia in 2000. He said that these allegations were ‘vague’ and ‘lacking in particulars’.
However, he said the Navy was wrong to transfer the officer without consultation from her position to what she described as a ‘dog’s body’ job in the public affairs office. While her rate of pay was unchanged, the transfer was effectively a demotion and occurred because she took sick leave for around two weeks as treatment for depression.
The Navy should have ensured the commanding officer knew of her medical condition and additional staff could have been used to fill in during the officer’s rehabilitation, Federal Magistrate McInnis said.
He rejected the Navy’s argument that it transferred the officer ‘for operational reasons’. ‘The transfer . . . would not have occurred in circumstances where an officer was not disabled’, he said.
The Navy was ordered to pay $25,000 in damages. Federal Magistrate McInnis awarded the damages for hurt, upset and humiliation suffered after the effective demotion, which led to the former officer’s resignation from the Navy.
In awarding what he acknowledged as a significant award of damages Magistrate McInnis noted ‘it is appropriate in these circumstances where it would seem that the policy of the respondent has operated in a manner which effectively permitted the unlawful discrimination to occur’.
Wiggins v Department of Defence-Navy [2006] FMCA 800 (9 June, 2006)
Disability discrimination - depression, $83k award after indirect bias
The Victorian Civil and Administrative Tribunal found that a woman was indirectly discriminated against by a State public agency when it set her unreasonable performance standards.
The Vic Institute of Dryland Agriculture argued unsuccessfully that Julie Deckert’s attitude had caused her to take so much time off work. If she had ‘acted reasonably and accepted there was no campaign of intimidation’, her issues could have been dealt with constructively, the Institute argued.
VCAT Deputy President Cate McKenzie disagreed, saying the Institute’s actions in setting the standards had triggered Deckert’s depression, and the medical evidence was she had been unable to work as a result. Workplace conflict had been a minor contributing issue.
Deputy President Cate McKenzie awarded the woman $83,368.83; $47,606.96 was for lost wages while she was off work suffering from depression and $20,000 for stress, depression, anxiety and humiliation. DP McKenzie held each party must pay its own costs.
(Deckert v State of Victoria – Dept of Primary Industry – Victorian Institute of Dryland Agriculture [2006], VCAT 229, 3/3/06)
Disability discrimination – indirect disability discrimination in employment
A disabled customer service officer won a case of indirect disability discrimination after she was forced out of her position because she was not allowed to sit down while working.
The respondent had introduced a new retail concept to their Manly store, where the complainant had worked for 11 years. As part of the new working environment, workers were not permitted to be seated while serving customers or performing retail counter duties. Previously, stools had been provided for front line customer service officers to use when needed.
The complainant, who had osteoarthritis, heel spurs and varicose veins, was refused permission to sit, even intermittently, while serving at the retail counter. The respondent then redeployed her to the corporation’s head office in Strawberry Hills, and sought to appoint her to an administrative position, rather than a retail position, at another location in Sydney. After failing to provide her with a position close to the Sydney’s northern beaches where she lived, the respondent finally placed the complainant on extended sick leave.
The court held that the requirement to stand at the counter while working was unreasonable, and that the respondent suffered indirect disability discrimination in contravention of s 15 of the Disability Discrimination Act 1992 (Cth). The court found there was an unreasonable belief by a manager that the respondent was ‘not the kind of person appropriate to be any longer serving on a post shop counter of Australia Post’.
The court ordered the respondent to pay the complainant’s costs, estimated to be over $100,000.00. The court also ordered that the matter be relisted to assess compensation, including damages and lost actual and potential earnings.
Daghlian v Australian Postal Authority, Federal Court of Australia, 23 July 2003
Disability discrimination - inherent requirements still a defence if complainant not informed
An appeal panel of the Administrative Decisions Tribunal dismissed an appeal against a Tribunal decision which found that the NSW Police discriminated against a man on the ground of disability when it refused to offer him employment.
The man has some loss of vision in one eye and NSW Police argued that this meant he would be unable to judge distances accurately and therefore he was unable to meet the inherent requirements of the job.
The Appeal panel found that while the Tribunal at first instance had made an error of law, the Tribunal’s subsequent reasoning and findings made it clear its decision would have been the same even if it had not made the error.
The error the Appeal panel said the Tribunal had made was in interpreting comments by the High Court in X v the Commonwealth (1999) 200 CLR 177 as meaning that in order to later rely on the defence, an employer must have identified the inherent requirements of a position prior to rejecting an application for employment.
The Appeal panel went on to find that the error was not crucial to the Tribunal’s decision because the Tribunal ultimately found the inherent requirements defence was not made out, and it dismissed the appeal. It also rejected an appeal against the $10,000 awarded for non-economic loss, finding that there was no authority for NSW Police’s submission that the amount was well outside the range previously awarded by the Tribunal for non-economic loss.
Commissioner of Police v Zraika [2005] NSWADTAP 1
Disability discrimination - lifting inherent requirement of store job
A storeworker lost a case of unlawful termination after he was dismissed because he had a back injury and could no longer lift up to 20kg, or perform tasks involving repetitive bending or lifting.
A person with a disability must be able to perform the “inherent requirements” of the job in order to be considered for or to remain in that job. If they cannot perform these requirements, regard must be given to whether they could carry out the requirements with some assistance.
The Federal Court ruled that IGA Distribution was justified in dismissing the worker as lifting heavy items was an essential part of his job at the distribution centre. This involved assembling orders, packing, filling and stretch wrapping supermarket items, and working in the general merchandise area.
The court ruled that inherent requirements should be judged on the original position performed by the employee and not any modified work performed during rehabilitation.
Cucanic v IGA Distribution (Vic) Pty Ltd [2004] FCA 1226 (20 September 2004)Disability discrimination - ‘medically retired’ prison officer reinstated
The Queensland Anti-Discrimination Tribunal found that the Queensland Department of Corrective Services discriminated against a 56-year-old prison officer by pushing him towards retirement instead of allowing him to complete a rehabilitation program. The officer was ‘treated less favourably than other (officers) without the impairments,’ in breach of s10(1) of the Queensland Anti-Discrimination Act.
The officer, who had injuries and osteoarthritis in both knees, was involved in a rehabilitation and return-to-work program when the department required him to undergo a medical examination. The results of the examination were used to retire him on health grounds in 2004.
Tribunal Member Gerard Mullins was ‘not satisfied to the requisite standard that the complainant is unable to perform the genuine occupational requirements of his position. Neither do I consider that the respondent has discharged its onus of proving that the complainant is an unacceptable risk of personal injury.’
‘The acting general manager had certified that the conduct of the enterprise would not be adversely affected by permitting him to complete that program. There was no justifiable reason at the time, based on workplace health and safety considerations, to not permit the complainant to complete his return to work program,‘’ Member Mullins said.
The Department was ordered to reinstate the officer and pay $44,852 in compensation.
Toganivalu v Brown & Department of Corrective Services [2006] QADT 13 (18 April 2006)
Disability discrimination – OH&S
Mr Higginson was employed as a maintenance fitter at the Wagga Wagga Abattoir, operated by the respondent. Mr Higginson had an operation on his leg in July 1998, and his doctor advised that he could return to work in August 1998.
However, Mr Higginson's employer held the view that he was unable to carry out the work safely, and they had no other position to offer him, so they did not allow him return to work until 17 May 1999. Mr Higginson complained to the Anti-Discrimination Board that he was being discriminated against on the basis of disability.
The Tribunal found that the respondent's refusal to allow Mr Higginson to return to work constituted less favourable treatment and that this amounted to both a discriminatory condition of employment and a detriment. On appeal, Cargill argued that the Tribunal had made two errors of law. The Appeal Panel did not accept either of the arguments, and found there were no errors of law by the Tribunal.
The second argument raised by the appellant raises interesting issues regarding the interrelationship between anti-discrimination legislation and the Occupation Health and Safety Act (OH&S Act). Cargill alleged that the OH&S Act required the employer to discriminate and therefore a defence existed under s.54 of the Anti-Discrimination Act. (This states that an action is not unlawful if it was necessary in order to comply with any other Act.)
The Panel examined whether s.15 of the OH&S Act required an employer to refuse work to an employee if that person was more susceptible to injury than other employees or potential employees.
Having considered relevant industrial law cases, as well as a range of anti-discrimination cases, the Panel concluded that there will be occasions where it will be lawful for an employer to refuse an employee permission to work in a particular role, or to work at all, because of OH&S legislation.
The Panel listed a number of factors that needed to be considered when determining the lawfulness or otherwise of these decisions. It then applied these factors to the facts in this case and concluded the following:
- that Mr Higginson was fit for work, despite the restrictions placed upon him by his own surgeon;
- that he had not slipped over in 20 years, and there was no more likelihood of him slipping over than any other employee; and
- while Mr Higginson may suffer a more severe injury than an employee without a similar disability if he did slip, the likely nature or extent of such an injury was unknown.
The Panel agreed with the Tribunal's reasoning and conclusion and no error of law was detected. The appeal was therefore dismissed. Equal Time is the quarterly newsletter of the Anti-Discrimination Board of New South Wales.
Cargill Australia v Higginson - Appeal Decision, Administrative Decisions Tribunal, Date of decision: 7 June 2002 Disability - sickle cell trait
The Federal Magistrates Court upheld a complaint of disability discrimination lodged against the NSW Police by an employee who carries sickle cell trait, a blood condition common in the black African population. The employee is of both Aboriginal and African origin.
The man was accepted as fit for duties when he joined the police force, although his condition was known at that stage. After his brother died from an assault and the autopsy linked that death to complications arising from sickle cell trait, the man was placed on informal restricted duties.
A specialist said he was fit to undertake full duties, but the Police Service also required an assessment from the man’s GP. The GP, who knew less about the condition, said that precautions were called for, and as a result the man worked on restricted duties for several years.
Following his complaint to the Human Rights and Equal Opportunity Commission, another specialist confirmed that the restrictions were unnecessary. The GP wrote a new certificate for the man and the restrictions were lifted.
The court found that the Police Service had discriminated against the man on the basis of disability because it had placed him on restricted duties when it knew this was unnecessary because of the specialist’s report, and required him to obtain a further certificate. However a claim of race discrimination was dismissed.
The Police Service was ordered to pay the man $10,000 in damages, plus lost overtime and allowances, plus interest.
Trindall v NSW Commissioner for Police [2005] FMCA 2
Disability discrimination – redundancy
The NSW Administrative Decisions Tribunal found that a NSW TAFE teacher with Hepatitis C was discriminated against when offered a redundancy payout.
The teacher was awarded $19,575 in compensation.
The Tribunal ruled that the teacher had received less favourable treatment than fellow workers partly ‘because of his fitness for work which, in turn, was inextricably linked to his disability’.
The teacher had Hepatitis C, advanced liver disease and widespread arthritis. The Tribunal concluded that he was not offered the same redeployment and transfer opportunities as his colleagues who had also been made redundant. The Tribunal concluded his disability influenced TAFE management’s decision not to offer him redundancy on similar favourable terms.
The written offer of redundancy did not include the retraining and transfer opportunities offered to other teachers. Management had also failed to make an ‘exhaustive survey of possible options’ for his re-employment.
The full bench ordered TAFE to pay the teacher $16,075 in damages for economic loss (assessed at 30% of lost income based on an estimated 30% chance of redeployment denied) plus $3,500 in damages for non-economic loss (claimed for depression and unfair treatment).
Nesci v TAFE Commission of NSW (No 2) [2005] NSWADT 183 (8 August 2005)
Disability discrimination - susceptibility to panic does not affect compensation
The Queensland Anti-Discrimination Tribunal ruled that a woman’s long-standing susceptibility to panic attacks was not a reason to reduce the amount of compensation she was entitled to after being sexually harassed.
The woman told the Tribunal that the general manager of the Palm Beach Surf Lifesaving Supporters Club harassed her by asking her to have sex and kissing the top of her head. He also grabbed her and kissed her on the lips, after which she had a panic attack.
Tribunal member Peter Roney applied the “eggshell skull” rule, which says that a person must take their victim as they find them. Therefore the fact that the complainant had an existing susceptibility to anxiety did not excuse the manager or make him less responsible for her psychological reaction.
The woman was awarded $41,000 damages, including $24,700 in lost wages and $15,000 in general compensation.
Lang v Nutt [2004] QADT 37 Disability discrimination – visual acuity in employment
Mr Zraika has a visual disability — loss of visual acuity or sharpness of vision- which is not correctable by wearing glasses. In September 2002 he applied for employment with NSW Police. His own doctor certified that he was capable of performing the activities of a recruit and the duties required of an operational police officer. The application also required he undergo a visual acuity test. On the basis of his score in that test his application was rejected because he did not meet the department’s medical standards for entry into the service.
Findings
Mr Zraika succeeded in his claim of disability discrimination and was awarded $10,000 compensation. By agreement between the parties, the case turned on section 49D(4) of the Anti-Discrimination Act ie “inherent requirements” and “unjustifiable hardship”.
In this situation the onus is on the Respondent to show that the exception applies — section 109 of the ADA (Proof of exceptions). The Tribunal looked to previous cases when considering that defence and said the respondent has to:
- determine the inherent requirements of the position in question;
- determine whether the applicant with a disability is able to perform those inherent requirements without assistance; and
- if the second inquiry (re assistance) results in a finding adverse to the person with a disability, the employer must determine whether the applicant may be able to carry out the inherent requirements with a level of assistance which does not impose an unjustifiable hardship on the employer.
While it is the employer’s obligation to determine the inherent requirements of a particular position, the employer’s own statement is not conclusive. It must be able to satisfy the Tribunal that it has made those determinations (ie that the applicant could not perform the inherent requirements without assistance and that he could not perform the inherent requirements without a level of assistance that would impose an unjustifiable hardship on the Respondent).
The Respondent failed in defending its action because it could not satisfy the Tribunal on either of those matters —inherent requirements and unjustifiable hardship.
It is not sufficient for a respondent to simply assert as an inherent requirement that the person must be able to perform the duties safely — what those inherent requirements are must first be determined, then an assessment made about whether the person with the disability is capable of performing them safely.
The only evidence about the Respondent’s determination of the inherent requirements were entries on the medical professional suitability application — these were too broad and too general to be an adequate description of the inherent requirements of an operational police officer; Basically, the Respondent had not met its threshold obligation of proving he had appropriately identified the inherent requirements of the position of an operational police officer at the time the complainant’s application was rejected. Even if it had, the Tribunal identified three reasons why the Respondent did not satisfy the Tribunal that its conduct fell within the defence:
- the determination must be made taking into account the person’s past training, qualifications and experience relevant to the particular employment. There was no evidence to suggest this had been done despite evidence on the Complainant’s application form that he had previously performed jobs that also required a high level of visual acuity.
- the use of one particular visual test as a ‘standard’ for applicants to meet is not sufficient. The Respondent must determine the degree of risk to others caused by the Complainant’s visual impairment and the consequences of any such risk being realised;
- the Respondent has not satisfied his burden of proof about the second limb of the inherent requirements test ie “unjustifiable hardship”. Where an employer wishes to rely on the inherent requirements defence it must direct her or his mind to that question at the time the job application from a person with a disability is rejected;
Orders
Compensation and an order that the Respondent to take all necessary steps to determine the Complainant’s application without reference to the existing standard for visual acuity.
Zraika V Commissioner of Police, New South Wales, Disability Discrimination, 7 April 2004 [2004] NSWADT 67Disability discrimination - worker with psychiatric disability reinstated
The AIRC ordered a dairy food company in Victoria to reinstate a worker it dismissed following his first episode of schizophrenia.
Commissioner Mansfield found that because of the machine operator’s mental illness at the time, he was not in control of the actions that led to his dismissal and therefore there was no valid reason for terminating his employment. Medical evidence showed he was now fit to return to work.
Murray Goulburn Cooperative (MGC) fired the man after he left work during his rostered shift without notifying his supervisor. Eight days later he was found in the workplace at 3am with a cigarette and beer both of which are banned at the factory. He had also left a can of beer in a fridge in the butter room and gone into a hygienic area of the factory without regulation clothing.
Following that incident he was involved in a robbery of an empty cash bag and two packets of cigarettes from a supermarket. As a result he received a community-based order and his family sought psychiatric help. He was diagnosed with schizophrenia and received treatment.
He was advised by MGC in July that he was stood-down without pay. Three months later he advised MCG that his health had improved and he wanted to return to work.
However, following a meeting with senior management he was informed that he was dismissed. MGC was aware he’d been diagnosed with a mental condition and had received treatment.
MGC maintained that consumer confidence could be affected by any breach of its hygiene standards. It believed it had to impose a high level of responsibility on employees for any failure to observe its standards.
Commissioner Mansfield ruled that due to the man’s mental illness at the time, he was not in control of the actions that led to his dismissal, and on that basis his sacking was harsh, unjust and unreasonable.
He concluded the medical evidence clearly indicated the worker’s ability to return to his former job, and that there were no special requirements that needed to be considered by his employer.
MGC was ordered to pay the man’s lost wages from December, which was when he was out of hospital and had finished his community service. It was left open whether the reinstatement be to his former position, or to an acceptable alternative position.
Steven Berry v Murray Goulburn Co-operative Limited. PR957500 (21 April 2005)Dress codes - nose stud ban reasonable
A full bench of the Australian Industrial Relations Commission (AIRC) found that Woolworths was entitled to ban a long-standing employee from wearing a nose stud at work, despite failing to enforce its policy for a decade.
The decision overturned a ruling by Deputy President Ian Watson last year that Woolworth’s subsidiary Safeway should allow the employee to wear her diamante nose stud at work, except when handling or preparing fresh food or taking part in substantial customer contact. He had taken into account the company’s ‘belated’ application of the policy – Safeway had not objected to the nose stud when it hired the woman in 1990 and had failed to apply the 1996 policy for nine years. The company subsequently sought to enforce its uniform policy which banned body jewellery apart from two earings.
The full bench stated that the company dress policy definitely prohibited the employee’s nose stud. The question under consideration was whether it was reasonable for Woolworths to require the employee to remove the stud.
The bench overturned Deputy President Watson’s decision, saying it wasn’t unreasonable for an employer to belatedly apply its policy, and that failing to enforce a policy didn’t render it unenforceable.
‘Looked at from a general perspective, it cannot be that an employer who condones or permits a breach of the policy by a particular employee loses the right to apply the policy to that employee for all time as a consequence‘’.
‘There may be situations in which it would be unreasonable or unconscionable for an employer to withdraw a representation that what would otherwise be a breach of policy was not, but it would need to be shown that the employee would suffer some financial or other detriment‘’, the bench said.
The bench criticised Woolworths saying its conduct was ‘clearly unsatisfactory‘’ and that inconsistently enforcing policies can cause uncertainty, disharmony and ill-feeling among employees.
B. Miller v Woolworths Limited t/as Safeway. PR971351 (1 May 2006)
E
Emails in the workplace
Twenty-four staff at this Centrelink were investigated after a report alleging breach of Centrelink’s email policy. Of the 24, 2 resigned and 2 were dismissed. The others were subject to disciplinary action.
The applicant was one of those dismissed and the felt hard done by. He argued that his dismissal was unfair. He hadn’t, he said, read the relevant policy document because he was too busy. He had, at one time, asked his manager (one of those who resigned) whether breaching the email policy was a disciplinary matter. He’d been told that it was a performance issue only.
The applicant complained that his dismissal was unfair. No-one was offended, he said, the others hadn’t been dismissed and he didn’t believe he’d done anything wrong.
The Australian Industrial Relations Commission was not impressed. For one thing, the applicant had been trained as an Harassment Contact Officer, and should have had some appreciation of the issues. The Commission said that this was a position of responsibility.
The Commission thought that I the applicant hadn’t spent so much time sending and receiving pornographic emails, he might have had more time to read the APS Code of Conduct.
The investigation had been fairly conducted and the applicant had had a fair chance to put his case. The evidence showed, however, that he had sent and received more, and more offensive emails than anyone else!
The Commission upheld the dismissal.
Williams V Centrelink, Australian Industrial Relations Commission, February 2004F
Family responsibilities - Customs Service meets obligations on family responsibilities
The Australian Industrial Relations Commission found that the Australian Customs Service met its obligations to a man’s family responsibilities and has dismissed his case of unfair dismissal against them.
The Customs Service generally requires its officers to move to new locations every two years. The officer was due for relocation from Cairns to Brisbane but asked to stay in Cairns to be near his children.
The Service offered him a number of options including staying for an additional year (which he did), staying in Cairns for a further period at a lower level and moving to Brisbane and being given “reunion” airfares and help to find another job back in Cairns. When he refused these offers and refused to move to Brisbane, he was dismissed.
The court ruled Customs’ offers to the man were “fair and reasonable” in view of their operational requirements. It held that he was aware of the Customs rotation requirement and his refusal of Customs’ offers was unreasonable.
A S Webb v Australian Customs Service PR 948530 (28 June 2003)Family responsibilities – leave entitlements
A recent case heard in the Federal Magistrates Court found that an employer discriminated against a female employee with carer’s responsibilities.
The employee, a single mother with a six-year-old child, was employed as an intelligence analyst for the National Crime Authority, now known as the Australian Crime Commission, on a contract basis between 1999 and 2000.
Upon joining the NCA, the complainant was able to transfer her accrued leave entitlements from her previous government employer, which amounted to between six and seven hundred hours. During the course of her contract with the respondent, the complainant took some time off for personal leave, including carer’s leave and sick leave, for which she provided medical certificates.
In early July 2000, she attended a meeting with a team manager. At the meeting she was told that she was not ‘fulfilling the job on a full-time basis’, and advised that if her leave from work continued, her contract would be terminated. She told the manager that the leave she was taking was already accrued and she was entitled to it. The manager expressed surprise that the leave was owing to her.
Following the meeting, the complainant suffered stress and anxiety, and consulted her doctor who gave her a medical certificate for further leave. A second meeting was held late in July between the complainant and the manager.
During the meeting she was advised that her employment contract would not be continued beyond September 2000, despite the ongoing nature of the work of her unit. The manager also told the complainant that if he had known she was a sole parent, he ‘would never have hired her’.
Following the meeting, the complainant alleged the manager asked her if she could ‘guarantee 100% attendance for the remainder of her contract’. She advised the manager that she was unable to provide a guarantee that her child would not be ill, and confirmed that she would honour her employment contract in good faith.
A series of meetings then took place between various managers and the complainant. During these meetings, she was again asked if she intended to be at work every day. In the last of the meetings, a regional manager commented, ‘I would never have hired you if I had known that you would have a sick child and take so much time off’. The complainant was distressed and sick as a result of this comment, and on the following day, formally resigned her position.
Supporting evidence was presented from the complainant’s co-workers, including a colleague who was also a sole carer. The colleague was also warned that her contract would not be renewed if she took further carer’s leave.
The court found that the respondent had discriminated against the complainant on the ground of family responsibilities. The court found that the complainant had not taken any leave to which she was not entitled by her contract, and that under cross-examination, the manager concerned conceded that the leave the complainant took was not excessive.
The court ordered damages of $25,000 for hurt and humiliation, and damages for loss of wages for approximately $16,000. The court also indicated that it would be appropriate for the respondent to make a formal apology.
Evans v National Crime Authority, Federal Magistrates Court of Australia, date of decision: 5 September 2003
Family responsibilities - unlawful dismissal claim upheld
The Australian Industrial Relations Commission ordered an employer – who made a worker redundant because of her family responsibilities – pay the employee $5,664 in compensation.
After returning from maternity leave, the employee informed Powerlab that her mother had been diagnosed with terminal cancer. She returned to work but, due to a deterioration in her mother’s health, had to take unpaid leave.
Two months later the employee requested part-time work but did not get a response for another two months when the request was declined. Several months later she was made redundant.
The employer of seven argued that it wanted to cut administration staff numbers and to employ more tertiary-educated accounts workers.
The Commission found the employee was selected for redundancy over other employees because of her family responsibilities.
The employer’s argument that its small size reduced its ability to comply with procedural fairness requirements was rejected.
Commisioner Hingley said the employer should have met with the employee to discuss the impact of the proposed restructure on her future.
Katia Georgiadis v Powerlab Pty Ltd. PR956774 (7 April 2005) G
Grievance handling
It is becoming increasingly obvious that employers need to ensure that their grievance handling processes are impeccably fair.
Ms Taylor alleged that she was sexually harassed by her superiors on board the HMAS Stirling.
When her complaint was investigated, however, she was found guilty of “collusive conduct” with two colleagues to prevent their superior’s promotion. An internal investigation declared that she was not a credible witness and recommended that she be charged with “prejudicial behaviour” and given a formal, written warning.
How then, did she manage to win a stress claim?
After the investigation was completed, Ms Taylor consulted a navy medical officer and a civilian GP for depression. She lodged a claim for anxiety, alleging that the stress of the investigation had contributed to her condition. She was discharged, but Comcare doctors argued that her depression
was caused by personal factors unrelated to the investigation.
The AAT disagreed, and decided that the she had been incapacitated by the investigation. She was awarded worker’s compensation.
Taylor v Comcare/Department of defence, WA Administrative Appeals Tribunal, AAT, W2000/429, Date: June, 2003 H
Homosexual vilification – apartment block
Mr Burns lived in a Department of Housing block, in a unit directly below Mr Dye's unit. He alleged that Mr Dye subjected him to homophobic harassment between August 1999 and October 1999.
The complainant alleged breaches of ss.49ZT (homosexual vilification) and 49ZTA (the offence of serious homosexual vilification). The President of the ADB referred the complaint of serious homosexual vilification to the Director of Public Prosecutions, who did not consent to the prosecution. The case was decided under s.49ZT.
The respondent conceded that he had used the terms 'faggot' and 'poofter', and that he may have used the term 'f-ing c-t'. He conceded he used the term 'f-ing c-sucking Burns', but denied using this term to his face.
The Tribunal found that the respondent had used abusive names in connection with the complainant on at least two occasions. It determined that the abuse occurred in a hallway open to residents and guests of the complex and was capable of being overheard, and was thus a form of communication to the public.
The Tribunal also concluded that it would have been apparent that Mr Burns was the target of Mr Dye's abuse. However, it was not satisfied that the abuse could have incited hatred, serious contempt or severe ridicule of the complainant, as Mr Dye was visibly drunk at the time of the abuse and 'from outward appearances would not appear [to the public] to enjoy any position of respect or influence'. This part of the complaint was therefore dismissed.
Tribunal member Mr Silva, in his minority decision, disagreed that the respondent's behaviour could not have influenced third parties. He held that the abuse could incite another party to 'severe ridicule'.
Mr Silva did not accept that the respondent's relatively low standing within the community would prevent this incitement, and argued that people respond to abuse immediately.
The complainant also alleged that during the long weekend of October 1999 the respondent smashed bottles against his property, tampered with his door lock and drew a large penis on his door along with the words 'fag lives here, faggots should die'.
The Tribunal did not decide whether the first two allegations were true, but was satisfied on balance that the respondent had drawn the penis with the accompanying words. It observed that in the absence of an accompanying verbal or written communication, bottle smashing and lock tampering could not amount to vilification as there was not the required link between the actions and possible third party responses, and the complainant's sexuality.
The Tribunal considered the graffiti a communication to the public, as it was on display in the public hallway. The Tribunal was satisfied that this act was vilification, as the message was not only an indication of hatred but was implicitly addressed to passers by, and also implied that killing homosexuals was a worthwhile endeavour.
It was self-evident that the complainant's sexuality was the cause of the respondent's conduct, and the Tribunal found that the conduct could indeed have incited others to hate, have serious contempt for or severely ridicule the complainant on the basis of his homosexuality.
The minority Tribunal member considered that the respondent had committed all three acts alleged: bottle smashing, lock tampering and the offensive graffiti, and that neighbours could well have concluded that these acts were connected with the complainant being gay. Considering all these acts together, he found that they amounted to vilification in that they could have incited others to severe ridicule.
The complainant also alleged a series of incidents involving the respondent depositing faeces and urine on the complainant's doorstep. The Tribunal was not satisfied that (even if these acts were public, which was not clear) they could be capable of inciting the necessary responses.
Without any written or verbal communications connected to the acts, there was not the necessary causal link between the acts and any feelings they might provoke on the one hand and the complainant's sexuality on the other. This part of the complaint was dismissed.
Again, Mr Silva disagreed and concluded that the neighbours would have been aware of the ongoing abuse and could have concluded that the depositing of faeces on the complainant's doorstep was a comment about Mr Dye's homosexuality.
The complainant sought damages for pain and suffering. The Tribunal concluded that in view of the fact that most of the complaint had been dismissed (leaving only the short-lived graffiti incident), and that the complainant had a pre-existing condition of depression, the payment for pain and suffering should be at the low end of the scale. Although the respondent's behaviour had exacerbated the complainant's condition, only part of that behaviour was unlawful.
The complainant was awarded $1,000.00. The Tribunal specifically rejected the notion that the respondent's capacity to pay should be considered as relevant. It also ordered the respondent to provide an apology in specified terms. Mr Silva considered that all the allegations had been proven and that the acts should be considered together. Mr Silva determined that the complainant should
have been awarded $15,000.00.
Burns v Dye [2002] NSWADT 32, Administrative Decisions Tribunal, date of decision: 12 March 2002Homosexual vilification - internet
The Administrative Decisions Tribunal upheld a complaint of homosexual vilification regarding material posted on a personal website and on various internet chat groups.
Mr Collier, a gay man and long term gay activist, came across material that had been posted by Mr Sunol on his own website and on several other websites. He made a complaint to the ADB about eight statements, published in four items on the various sites alleging that they vilified homosexual people in breach of section 49ZT of the Anti-Discrimination Act.
Mr Sunol admitted to publishing some of the material but also claimed that his site had been hacked into and material placed on it to discredit him. He was not able to produce any evidence to prove that this was the case. The Tribunal concluded that Mr Sunol was responsible for publishing much of the material.
To decide whether the material unlawfully vilified homosexual people the complaint had to satisfy four criteria. The material had to be:
1. a public act;
2. which incites;
3. hatred towards, serious contempt for or severe ridicule of a person or group of persons;
4. on the ground of the homosexuality of the persons or members of that group.
The ADT then must consider whether any of the exceptions allowed under section 49ZT(2) apply. The onus of showing an exception applies is on the respondent.
The Tribunal found that the publication of the material on publicly accessible websites was a ‘public act’ that occurred within the Tribunal’s jurisdiction.
They also found there was incitement to hatred or serious contempt in seven of the eight statements complained of. The statements did not merely convey Mr Sunol’s fellings of hatred and contempt but also contained strong epithets, derogatory labels and serious allegations as to why other people should develop such feelings. Other comments urged readers to engage in conduct that is adverse to homosexuals.
To fit the criteria of section 49ZT the incitement must be ‘on the grounds of’ the homosexuality of the person or group. The Tribunal looked at the eight statements and concluded that in five of them homosexuality was put forward as the reason why they should be the subject of hatred and/or serious contempt.
The Tribunal rejected Mr Sunol’s arguments that an exception under the Act should apply saying that four of the statements were nothing more than sweeping generalisations of a highly insulting and offensive nature. One statement regarding the ‘Gay Lobby’ may have been defensible and therefore within the exception but for the fact that the language used was extreme and hostile.
In a subsequent judgment, the Tribunal ordered Mr Sunol to pay Mr Collier’s costs. It also required Mr Sunol to remove from all websites controlled by him any material concerning homosexual men, lesbians, homosexuality or the gay lobby and to refrain from publishing material on any of these topics on any other website. Mr Sunol was ordered to post a specific apology on various websites including all sites controlled by him.
Mr Sunol is appealing against the original decision.
Collier v Sunol [2005] NSWADT 261
Collier v Sunol [2006] NSWADT 88
Homosexual vilification - Laws cleared of breaking Code of Practice
John Laws was cleared of breaking broadcasting codes of practice by describing Carson Kressley, the star of Queer Eye For the Straight Guy, as a ‘pillow biter’ and a ‘pompous little pansy prig’.
However the Australian Communications and Media (ACMA) found that radio station 2UE had breached its Code of Practice by not responding to complaints about the comment quickly enough.
The ACMA ruled that while the comments were offensive and tasteless, the licensee of 2UE did not breach clause 1.3(e) of the Commercial Radio Australia Codes of Practice.
It said the comments were ‘unlikely to have incited or perpetuated hatred against or vilified any person or homosexual identifying people as a group, on the basis of their sexual preference’.
But the ACMA also found 2UE did breach the codes by not responding to the complaints within the 30 days stipulated in the codes.
2UE has apologised for the breach and ‘it has reminded staff of the importance of ensuring that responses to listener complaints are dispatched promptly’, the judgement said.
‘ACMA considers that these actions address the compliance issues raised by the investigation and will continue to monitor the licensee’s compliance with this requirement,’ the decision said.
Gay rights activist Gary Burns has filed a complaint with the NSW Administrative Decision Tribunal (ADT) about the comments.
M
Marital status – single mother in employment
Ms Flekac started work at Australian Cable and Telephony Pty Ltd (AC&T) as a casual in March 2002. Ms Flekac is a single mother with an 11 year old child. She signed a contract on starting with AC&T that provided that her hours were subject to change, on reasonable notice, to meet business requirements. Initially Ms Flekac worked an eight hour shift which ended late in the evening; later her shift changed to normal business hours ie 8.30 to 5, then from 9–4.
Over a period of three weeks in August/September 2002 Ms Flekac had some time off due to influenza - seven out of 15 working days; medical certificates were provided for all her absences. With effect from 11 September 2002 (and while she was on sick leave) Ms Flekac’s rostered shift was changed from 9am to 4pm to 4 pm to 9pm.
On her return to work on 16 September 2002 she met with her supervisors and explained that the change in her shifts meant it was difficult for her to arrange childcare. During that meeting a serious performance issue was raised that had become apparent during the employee’s absence on sick leave. Ms Flekac was informed that, pending the outcome of the investigation into the matter and providing she was still employed, her supervisor would attempt to change her shifts to accommodate her childcare needs.
After that meeting Ms Flekac’s employment was suspended pending the investigation. On 9 October 2002 her employment was terminated. Ms Flekac alleged that AC&T directly and indirectly discriminated against her because of her parental and/or marital status and because of her impairment (influenza) by changing her shifts and then by suspending and subsequently terminating her employment. Ms Flekac also alleged less favourable treatment in the way in which her work was supervised.
Findings
The Victorian Civil and Administrative Tribunal (VCAT) found for Ms Flekac on one basis only, that of impairment by changing her rostered shifts. In evidence AC&T said the reasons for the shift change were Ms Flekac’s illness and the fact that on the 9–4 shift there was only one employee for the first part of the shift which meant it was difficult on short notice to arrange someone to cover it. There were more employees on the later shift which meant it was easier to cover in case of illness. There was also evidence that the person who made up the rosters accommodated the needs of those who gave her notice that they would be unable to work their particular shifts, for example, because of examinations or other personal circumstances.
The VCAT found that a substantial reason for the treatment of Ms Flekac was her periods of (legitimate) absence due to illness and assumptions made by AC&T that those absences would continue. It found that AC&T treated her less favourably than it would have treated other employees absent for legitimate reasons, other than illness, being reasons accepted by the company. The change was made with immediate effect and the employee had no chance to discuss the change with her employer. Her contract required that reasonable notice be given but there was none.
In regard to her claim of discrimination on the basis of her parental status or status as a carer, the VCAT found no evidence the rosters were changed because of Ms Flekac’s status as a single mother hence there was no direct discrimination. It also found the requirement to work the new roster was not indirect discrimination because Ms Flekac was not able to show that it would have been impossible for her to make alternative childcare arrangements.
It also found that while many aspects of the process whereby Ms Flekac’s employment was terminated were unsatisfactory, the reasons for the termination of her employment were not to do with either her impairment, her parental (carer’s) status or her marital status. Accordingly, Ms Flekac was successful on only one ground — her claim of direct discrimination on the basis of her impairment by changing her rostered shift. She was unable to adduce evidence of any financial or emotional loss due to the change in her roster but did seek an apology from the company. This was the order made by VCAT -that the company apologise forthe inconvenience caused to Ms Flekac by having to alter her childcare arrangements at short notice in order to attend for work at the new time on 16 September 2002.
Notes
The Victorian Equal Opportunity Act 1995 sets out a number of attributes on the basis of which discrimination is prohibited. While not identical to those of the Anti Discrimination Act 1977 (NSW) they are more or less equivalent to discrimination on the ground of marital status (Part 4), disability (Part 4A) and responsibilities as a carer (Part 4B).
Flekac v Australian Cable and Telephony Pty Ltd, Victorian Civil and Administrative Tribunal, 19 December 2003 Maternity leave - denial of full time work, Queensland sex discrimination claim upheld
The Queensland Anti-Discrimination Tribunal found that an employer that refused an accountant’s request to return to full time work after maternity leave denied her not only a full time income but also significant bonus payments.
The accountant had worked as a casual during her maternity leave. When she sought to return to work on a full-time basis, the employer told the employee she could only return to work for a few half days a week for six months, then full-time for six months before reverting to casual work.
The employer had, during the employee’s maternity leave, engaged another accountant for at least 20 hours a week, and then ‘decided it was not in the best interests of the business to allow [the accountant] to return to full time employment immediately after Christmas 2003’.
Tribunal member Peter Roney found the principal had been influenced by concerns that the accountant might have another baby and cause disruption to the business.
Mr Roney ordered the Bundaberg accounting firm to pay the accountant $21,000 in damages, including $5,000 for hurt and humiliation and $5,160 for bonuses she missed out on. He said he would be inclined to order costs to the employee, but asked the parties to try to reach agreement.
Pressler v Stewart [2005] QADT 33 (24 November 2005)
Maternity Leave – Nike discriminates against parent
The Victorian Civil and Administrative Tribunal (VCAT) has found that Nike discriminated against a former employee on her return from maternity leave.
When Ms King returned to work after maternity leave she found her position had been divided into two positions. She was given the more junior position, despite the senior role including most of her previous responsibilities. She argued that she had been discriminated against because of her carers’ responsibilities.
The sales manager of the company argued that the senior role was given to the better candidate.
The Tribunal did not believe this because:
- it being the job she had held it would not have been sensible to give it to someone else;
- the sales manager had expressed concern about how women with children managed their time;
- he had told Ms King to spend as much time as possible with the baby;
- he had sent and email to other employees after Ms King’s return saying ‘Please welcome Sally back to the office and if she s p e l l s e v e r y t h n g o u t when talking to you please be patient’.
The Tribunal was satisfied that Ms King was not appointed because of the sales manager’s beliefs about the effect her carers’ responsibilities might have on her performance.
Ms King was awarded $19,685 in damages.
