Appeal panel agrees that regional relocation 'reasonable' for mother of two

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Appeal panel agrees that regional relocation 'reasonable' for mother of two

A WorkCover team leader, whose position was relocated from Sydney to Gosford, has failed to convince the NSW Administrative Decisions Tribunal Appeal Panel that a requirement she attend the Gosford office was indirectly discriminatory because it reduced the time she could spend with her young children.

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A WorkCover team leader, whose position was relocated from Sydney to Gosford, has failed to convince the NSW Administrative Decisions Tribunal Appeal Panel that a requirement she attend the Gosford office was indirectly discriminatory because it reduced the time she could spend with her young children.

This case has been briefly noted on WorkplaceInfo, a more extensive report is published here.

Background

The employee appealed against the tribunal’s dismissal of her claim that WorkCover had breached the Anti-Discrimination Act 1977 on two grounds - sex and carer's responsibilities.

The Sydney-based mother and carer of two young children argued WorkCover’s insistence that she relocate to its Gosford office was discriminatory.

WorkCover said it demanded the move because the employee was in a senior position and it was important for her to retain regular contact, both formal and informal, with other members of senior management - most of who were or would be located at Gosford.

Contrary to the employee’s argument, WorkCover claimed that it was unnecessary for her to maintain face-to-face supervision of the members of her team (the majority of who were located in Sydney, Lindfield or Liverpool), because this was the task of the two line managers within the team.

The employee was the only team manager with responsibilities for the care of young children. She stated that on the days when she went to Gosford, she could not prepare her children for school, she could only see her children in the morning or the evening, but not both, and she had to spend extra hours travelling to and from work, which were not remunerated.

The employee was allowed a degree of flexibility in her hours, but had to attend the Gosford office on five nominated days per fortnight. She claimed this requirement was indirectly discriminatory because both 'a substantially higher proportion of persons who did not have responsibilities as a carer' and 'a substantially higher proportion of men' were 'able to comply'.

At first instance the NSW Administrative Decisions Tribunal dismissed her claimsaying: '...balancing the impact that being based in Gosford has on [the employee’s] responsibilities as a carer, we consider that, in all the circumstances, the requirement is reasonable.

The employee claimed the tribunal had erred in law in coming to this finding.

Findings

The employee argued that the tribunal's use of the word 'balance' was incorrect. She said it led the tribunal into 'balancing' a limited number of matters, whereas its approach should have been to 'weigh' all the relevant considerations.

The Appeal Panel agreed with WorkCover’s rejection of this distinction as a 'semantic quibble'. It said the correctness of the tribunal's decision depended on whether the considerations that it treated as relevant were indeed the appropriate ones, not on whether it chose to use the word 'balance' rather than 'weigh'.

The panel found the formula the tribunal used to determine 'reasonableness' of the requirement was adequate and that all the tests applied had precedents. It said it took into account the nature and extent of the discriminatory effect of the requirement, whether there was a reason for the requirement including any commercial considerations, whether the requirement was ‘appropriate and adapted’ and finally whether there was a less discriminatory option.

The employee then contended that rather than considering whether it was 'appropriate and adapted' to the performance of her duties that she be partly based in Gosford, the tribunal simply asked whether the requirement was conducive to the efficient and effective management of WorkCover’s operations. The panel, however, said this did not constitute a fair description of the tribunal's approach. It said the impact of the requirement on the employee’s responsibilities as a carer was expressly 'balanced' against WorkCover’s efficiency and effectiveness gains.

The employee went on to list 13 considerations that she claimed were relevant in determining reasonableness and which she felt the tribunal had failed to give due weight to. The panel rejected this contention finding that 11 of the factors had been sufficiently brought into consideration and that the employee had failed to show the other two were significant enough to have made a difference to the outcome.

Finally, the employee contended that the tribunal erred by taking into account a consideration that it should have found irrelevant, that is, the reasonableness of her conduct. She said the tribunal sought to 'discount' the extent of the discriminatory impact of working at Gosford by implying that she did not act reasonably in trying to minimise this impact.

The panel also rejected this appeal ground saying the tribunal’s words did not convey any such implication.

See: Gardiner v WorkCover Authority of New South Wales (EOD) [2004] NSWADTAP 1, (4 February 2004).

Related

In addition to the question of discrimination, the question of entitlement to redundancy benefits can also arise when relocation is involved.

 

 


   

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