Carer's discrimination claim overcomes first challenge

Cases

Carer's discrimination claim overcomes first challenge

A Gosford City Council employee prevented from working more family-friendly hours on her return from maternity leave has won the right to proceed with her discrimination case.

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A Gosford City Council employee prevented from working more family-friendly hours on her return from maternity leave has won the right to proceed with her discrimination case.

Background

The former children's services co-ordinator at Gosford City Council sought to work 38 hours over four days rather than five as she claimed she couldnot obtain child care for the full five days per week.The council refusedher request.

For four months after her return from maternity leave, the employee worked four days per week by using her leave entitlements, including accrued long-service leave. Having used all available leave sheresigned her position.

She then lodged a complaint with the Anti-Discrimination Board alleging that she was discriminated against on the ground of her carer's responsibilities. Her points of claim alleged indirect sex discrimination and indirect discrimination on the grounds of age of arelative in the area of employment.

Gosford City Council applied for the matter be dismissed under s111 of the NSW Anti-Discrimination Act 1977 on the basis that the claim wasmisconceived. It contended that the claim was fatally flawed because thealleged indirect discrimination in respect of a condition or requirement - i.e. that the children's services co-ordinator work a 38 hour week over five days per week - applied only to the employee. It argued that it was 'implicit' that for the provisions in respect of indirect discrimination toapply there must be more than one person affected by the condition.

The employee, however, claimed the base group against which she was being indirectly discriminated was all those persons to whom the requirement 'potentially could apply', that is the entire workforce of NSW. The councilcountered that the pool must be the appropriate pool to whom the requirement applies, not a hypothetical workforce.

Findings

The Tribunal noted that the Anti-Discrimination Act was silent on the issue of whether an indirect discrimination claim could be made out where thechallenged requirement or condition applies to only one person.

However, itconcluded that the Act was 'beneficial legislation' designed to protectagainst discrimination both direct and indirect and there was nothing in it to preclude such a claim.

On the question of the appropriate base group against which to test an indirectly discriminatory condition applying to one person, the tribunalreferred to 'Commonwealth Bank of Australia v Human Rights & EqualOpportunity Commission & Anor'. It concluded that this judgement clearly provided that in some instances reference to the general population was an acceptable method of determining the significance of sex to compliance.

'Inthe circumstances of this case, that would be the NSW workforce.We therefore do not accept the [council’s] submission that the [employee] has failed to particularise or select the appropriate pool.'

See: French v Gosford City Council [2003] NSWADT 273, (December 19, 2003).

 

Related:

Discrimination based on carers' responsibilities - a new ground in NSW

Australian anti-discrimination and EEO law summarised 

 

 

   

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