Equal opportunity cases: trends in 2005


Equal opportunity cases: trends in 2005

With removal by the new WorkChoices legislation of coverage for many employees by 'unfair dismissal' provisions, there has been some speculation over whether claims under equal opportunity legislation will increase as a side effect.


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With removal by the new WorkChoices legislation of coverage for many employees by 'unfair dismissal' provisions, there has been some speculation over whether claims under equal opportunity legislation will increase as a side effect. In that light, it is interesting to look at trends and developments among the equal opportunity judgments handed down over the past year. 

The most common issue in cases decided by courts and tribunals remains sexual harassment – as distinct from formal complaints of discrimination that do not end up in court. However, some of the most interesting decisions concerned the following issues:

  • age discrimination in recruitment
  • treatment of pregnant employees, for example when they are unable to continue working in their usual jobs
  • the use of performance standards to evaluate employees’ job performance
  • employers’ rights to insist on particular working hours

Cases that explored these issues are summarised below, with links to the decisions. A follow-up article will review trends in sexual harassment cases. 

Age discrimination in recruitment 

The most publicised discrimination case of the year found that Virgin Blue Airlines had discriminated against eight flight attendants in the selection methods it used to select job applicants. The methods included testing for 'behavioural competencies', one of which was described as having 'Virgin flair' – making the flying experience fun for the customer. (Note that this decision is currently subject to appeal.) 

The Queensland Anti-Discrimination Tribunal found that no-one aged over 36 had been offered a job at Virgin under this process. As employees involved in the selection process tended to be young people who lacked sufficient training in making assessments, they tended to identify people in their own age group as more likely to have 'Virgin flair'. 

Virgin also used a selection method where groups of applicants were simultaneously assessed, and the Tribunal found that this technique, while not inherently age discriminatory, was designed to handle a much lower volume of applicants. Multiple assessors of each applicant were not used. Training of assessors in interview and selection techniques, and in how to make an assessment of 'Virgin flair' was inadequate. 

See: Statistics used to find age discrimination in recruitment practices

Performance standards 

Another case that involved performance standards sheds light on how (not) to use them when making decisions to dismiss employees. A woman who suffered from an arthritic condition in her fingers was unable to perform her work at the same speed as other employees. Eventually, the employer told her she was required to improve her performance to meet specified output targets within a short period, and get close to the targets immediately, or else face the prospect of dismissal.  

Evidence was given that while other employees worked faster than her, they found it difficult to meet the same targets. The targets amounted to setting an unreasonable requirement because of the circumstances in which they were set (following sustained general criticism of the woman’s work), the way they were imposed on her, the limited time given to meet them, and the threat of dismissal  that backed them.  

The meetings with management that imposed the targets caused the woman to suffer from depression, which meant that she became unable to work. She later resigned for unrelated reasons. She could no longer comply with the targets because she could no longer work. This, according to the Victorian Civil and Administrative Tribunal, amounted to discrimination. Also the employer did not take adequate steps to ascertain the reasons for her underperformance, although it was aware of some health-related issues at the time. 

Deckert v Department of Primary Industry (Anti Discrimination) [2005] VCAT 2138

Treatment of pregnant employees 

This issue continues to be a source of discrimination complaints and, to be fair, is often a difficult one for employers to manage. 

Light duties for pregnant employee were not provided

One case involved a blood collector in a hospital who, well into her pregnancy, requested to be placed on 'light duties' because she was finding her usual job to be physically difficult. The health service that employed her advised her that no such positions were available, and the woman had to cease work, rely on other leave entitlements until giving birth, then return to work after maternity leave earlier than she had intended to. 

The health service provided light duties work for employees on workers compensation, including job swaps and rotation, because there was a statutory obligation to do so. There was no similar legal obligation in relation to pregnant employees, nor did the employer have a policy for dealing with their situations. The employer did no more than enquire whether there were suitable vacancies available at the time. When there were none, it claimed that it did not have the budget to employ extra staff to cover the situation. In effect, it said: 'there is no policy, there are no vacancies, there is no money and no legal requirement'. 

The New South Wales Administrative Decisions Tribunal found that the health service discriminated against the woman because it did not do enough to try to accommodate her request. She was awarded compensation for loss of her leave entitlements.  

Jordan v North Coast Area Health Service (No 2) [2005] NSWADT 258 

Discovered pregnancy 10 days into new job

Another case involved a woman who discovered she was pregnant only 10 days after starting a new job and informed her employer a couple of weeks later. She was not entitled to maternity leave (less than 12 months’ service) but was entitled to remain employed. 

The employer dismissed the woman, claiming her job performance was unsatisfactory, but the Federal Magistrates Court found that the alleged performance problems were 'merely convenient pretexts' for dismissing her. The real reason was her pregnancy and consequent request for maternity leave. An employee who was not pregnant would not have been dismissed in the same circumstances and if the same issues about job performance had arisen. The employer breached the employment contract and had to pay damages of $12,000.

Dare v Hurley [2005] FMCA 844 (12 August 2005)

Relocation and family responsibilities 

A man was entitled to a redundancy payment when his workplace was relocated from Melbourne to a Victorian country town. The man had carer’s responsibilities for his children and elderly mother. The mother lived nearby and suffered from dementia.

The Australian Industrial Relations Commission found that work location was an implied term of the man’s employment. His contract was repudiated when the employer no longer wished the job to be performed at Melbourne by anyone. The man’s family responsibilities meant that the relocated job was not comparable, nor acceptable to him. It was a new contract of employment that he was unable to perform because of his family responsibilities. Therefore, the employer repudiated the contract of employment, his job was redundant, the redundancy clause in his employment agreement applied and he was entitled to redundancy pay.

The employer had provided a relocation payment and free bus travel to and from the new location for all relocated employees, as negotiated with their union. It claimed that it had been unaware of the man’s family responsibilities, but had offered to vary his working hours to suit them, and offered to pay the cost of his daughter’s after-school care on a per-session basis.

The lesson from this case appears to be that employers need to be aware of the carer’s responsibilities of their employees, to investigate thoroughly the potential impact of changes such as relocations or altered working hours, and in consultation with the employee to explore constructive options.

Liu v NHP Electrical Engineering Products Pty Ltd AIRC P953845

Can employers insist on particular working hours?

Employers have frequently lost discrimination cases involving family/carer’s responsibilities because it was held that they imposed requirements on employees (such as working particular hours or having to work full-time) without seriously considering alternative arrangements that may have been workable for both parties. In particular it has been suggested that employers needed to genuinely consult with the employees concerned.

A case before the Western Australian Equal Opportunity Tribunal concluded, however, that while such consultation and exploration of alternatives would have been preferable, an employer had not discriminated by insisting that an employee start work at 7.30am each day – firstly because such a requirement was reasonable given the nature of the job itself and secondly because the job was an 'acting' position that the employee was only required to perform for a short period.

The employee wished to start work no earlier than 9am because she needed to look after her son in the morning and take him to school. The employer claimed that the early start was essential because the job required the employee to ensure that the employer’s staffing levels for the day were adequate in each section of the business, and to arrange replacement staff if required. This could only be done if the employee was on-site at 7.30am. The Tribunal found that a 7.30am start was a reasonable requirement to impose and dismissed the complaint of discrimination.

Parsons v South Metropolitan Health Service ET2004-000018


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