Discrimination – case notes 21/1/05


Discrimination – case notes 21/1/05

The case notes here cover: employment conditions; sexual harassment; verbal abuse; and pre-employment discrimination.


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The case notes here cover: employment conditions; sexual harassment; verbal abuse; and pre-employment discrimination.


Change of conditions for female discriminatory

Failure to provide a female employee with the company car that it had offered to the previous male editor was discriminatory.

The Victorian Civil and Administrative Tribunal found the publisher had allowed the former editor to forgo the vehicle in return for a pay rise. The female editor was not given the same option to accept the car or the higher remuneration.

The employer claimed it had decided after the previous editor relinquished the car that it would longer provide such an entitlement to editors. The judge said this explanation appeared totally opportunistic.

The judge said the employer had acted unlawfully against the female editor, breaching the s14(a) prohibition on discriminatory denial of benefits to employees.

However, Judge Cohen refused to accept that the female editor was directly or indirectly discriminated against on the basis of her gender when she was refused the same opportunities for promotion as the male employee and his male predecessors and also dismissed the claim that she had been victimised for making the discrimination complaint.

Keenan v The Age Company Limited [2004] VCAT 2535 - 22/12/04
Failure to consider status of role costs $10,000 in sex discrimination ruling
Sexual harassment – too remote

The director who organised a topless waitress to attend an end-of-year work party was not personally involved in sexual harassment so the discrimination complaint by a staff member failed.

The receptionist who complained to the NSW Admin Decisions Tribunal lost on the basis of a strict interpretation of whether the unwelcome sexual conduct 'in relation to' the complainant,, as required under the NSW Anti-Discrimination Act 1977.

The Tribunal stated:

'… even if it was conduct of a sexual nature, [it] was not sexual harassment as defined in the Anti-Discrimination Act 1977.'

The Tribunal invited the complainant to consider whether the conduct she complained of could be characterised as indirect sex discrimination, but she failed to respond to this invitation.

Carter v Linuki Pty Ltd t/as Aussie Hire & Anor [2004] NSWADT 287 (15 December 2004)

'So-called' jokes cost harassers $26,000
'Scab' – harassment

The AIRC considered the words 'I would never scab on my workmates' appearing on a t- shirt to constitute harassment.

Commissioner Blair found that the use of the term 'scab' on the t-shirts was a form of harassment and intimidation. He recommended that the shirts be withdrawn.

Section.99 notification of industrial dispute, Construction, Forestry, Mining and Energy Union and Carter Holt Harvey - Morwell Radius Sawmill. PR952607 - 20/10/04 (20 October 2004)
'Scab' taunt no reason for dismissal
Pre-employment age discrimination

Use of the term 'young team' was sufficient to support a finding of age discrimination based on an advertisement for a chef .

An award of $2,500 in damages was made in favour of a 46-year-old chef who responded to a job advertisement.

The Queensland Anti-Discrimination Tribunal found he was treated less favourably than a younger person would have been. He had spoken with a director of the company about the job and said he was happy to work with young people. He said the director told him she would call him in the next few days but he did not hear from the woman again.

Gardener v Norcott [2004] QADT 39 (7 December 2004)

Claim does not prove indirect age discrimination


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