Discrimination —cases wrap

Cases

Discrimination —cases wrap

Pregnant — dismissed — discrimination; Deafness possible factor in decision ; Post-polio syndrome not basis for injunction; Child care and fair fee.

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Pregnant - dismissed - discrimination; Deafness possible factor in decision ; Post-polio syndrome not basis for injunction; Child care and fair fee.

Pregnant dismissed discrimination

The WA State Administrative Tribunal found that pregnancy was a factor in the decision of an employer to dismiss an employee and, consequently, her claim for unlawful discrimination was substantiated.

The employee argued that she was dismissed because she took sick leave while pregnant and also to prevent her claiming 12 months unpaid maternity leave. The employer argued she was dismissed because of her poor performance.

Two weeks before she would have become entitled to unpaid maternity leave, the employee was given a written warning about her performance. A week later, the employer dismissed the employee.

Treated less favourably

The tribunal was satisfied that the respondent had treated the applicant less favourably than it would have treated another person in the same, or similar, circumstances, who was not pregnant.

The employee was awarded $7870 for lost earnings. In relation to distress and humiliation over her termination suffered, the tribunal awarded $2500.

The tribunal noted:

‘The identification of what is commonly called a "comparator" is an essential element of the statutory formula of direct discrimination. There will not always be an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is necessarily hypothetical: see, for example, Dare v Hurley [2005] FMCA 844; Mooney v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 189 93 - 81.

We are satisfied that the respondent would not have treated Ms Parsons in the way that it did, that is, to take the opportunity to terminate her employment under the guise of poor performance, if the opportunity presented by her pregnancy had not arisen.’

Parsons v Stone Traders Pty Ltd [2008] WASAT 145 (25 June 2008)


Deafness possible factor in decision

The Victorian Supreme Court has found that  the Victorian Magistrates Court had possibly discriminated against a court staff employee when a graphic equaliser and headphones to assist him deal with his severe high frequency deafness were refused.

Justice Kyrou held that although the court staff have immunity from prosecution for actions carried out as part of their role under the Magistrates Court Act, that did not mean the State of Victoria could not be vicariously liable for their actions under the Vic Equal Opportunity Act.

Justice Kyrou remitted the case to the VCAT.

Towie v State of Victoria [2008] VSC 177 (28 May 2008)


Post-polio syndrome not basis for injunction

The Federal Magistrates Court refused injunction to keep a worker with post-polio syndrome in the Australian Public Service after the AIRC has earlier rejected her bid for an interim injunction to maintain her employment with the Australian Public Service.

The worker was on the redeployment list and sought the injunction because she was facing dismissal if she wasn’t redeployed by 28 May this year.

The magistrate said the balance of convenience weighed against issuing the injunction as any rights lost by the worker as a result of the department’s conduct could be rectified by damages or reinstatement when the case is finalised.

Sluggett v DIAC & Anor [2008] FMCA 735 (4 June 2008)


Child care and fair fee

The State Administrative Tribunal of Western Australia stated that working parents should pay child care based on the level of service, not the age of the child.

The  tribunal found that a child-care provider unlawfully discriminated on the basis of age when it required a parent to pay fees based on the age of their child rather than the intensity of care required.

The centre’s management argued that it had not discriminated on the basis of the child's age, noting that the federal child-care benefit is paid based on a child's age, while the staffing ratio required under state laws is also aged-based.

However, the tribunal found that the service provided to children under 3.5 and over 3.5 was the same so the centre was not entitled to charge the parent a higher fee than other parents with children in the same group. 

Tilley v Garbutt [2008] WASAT 143 (25 June 2008)


Related


Pregnancy tops discrimination list in Vic

Compensation ordered after employer's 'despicable conduct'
 

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