Discrimination cases round-up 24/02/04

Cases

Discrimination cases round-up 24/02/04

Three of the five cases noted below relate to exemptions from Queensland discrimination law on the basis that there was a sound and justifiable reason in each case for the discriminating in favour of certain personnel.

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Three of the five cases noted below relate to exemptions from Queensland discrimination law on the basis that there was a sound and justifiable reason in each case for the discriminating in favour of certain personnel.

The first two cases are findings in favour of the employer - the employee is each case failing to establish that the employer was acting in a discriminatory manner.

Employer required change of work location - not discrimination

The NSW Administrative Decisions Tribunal has dismissed an appeal by a senior manager who argued she was a victim of indirect discrimination when her office was moved from the Sydney CBD to the NSW Central Coast.

The Tribunal found that the employer (WorkCover NSW) had sound business reasons for the move and no act of discrimination was involved.

Counsel for the employer submitted that there was no authority setting out a list of factors that the Tribunal was bound to consider in assessing reasonableness. This was instead a matter for the Tribunal to determine, on a case-by-case basis.

The Tribunal stated:

'We accept these ... submissions of [counsel], and for this reason conclude that this ground of challenge to the Tribunal's judgment fails.'

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

Discrimination case fails on technical grounds

The NSW Anti-Discrimination Tribunal has dismissed an action by Kim Hollingsworth alleging discrimination.

The applicant, a former police cadet dismissed in 1999 for failing to disclose she had worked as a prostitute, had won a case for reinstatement in earlier proceedings before the NSW IR Commission.

The applicant represented herself in this action alleging gender and sexuality discrimination.

Her claim failed largely on technical grounds – she failed to prove that the respondent in the action was the party responsible for any discrimination that may have taken place.

Verbal and other abuse was directed at the applicant.  The Tribunal accepted that these events constituted discrimination.

However, it was apparent from the evidence that the Principal of the Academy had the ultimate responsibility for dealing with behaviour of police and non-police personnel at the Academy where the discrimination took place.

The Tribunal noted:

‘Section 31A makes sex discrimination by an educational authority unlawful in certain circumstances. It provides that:

(1) It is unlawful for an educational authority to discriminate against a person on the grounds of sex:

(a) by refusing or failing to accept the person's application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the grounds of sex:

(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

'The applicant did not specify which of these provisions she was relying on.

‘Even if the respondent [the NSW Police] (through the Principal, Education Services) is a person administering an institution (the Academy) where education or training is provided, since the applicant was not a student of that institution, none of the provisions of s31A can have been breached in the circumstances of this case.’

See: Hollingsworth v Commissioner of Police, New South Wales Police [2004] NSWADT 17 - 28 January 2004.

Discriminating in favour of women allowed

The Qld Anti-Discrimination Tribunal has allowed a corrective services agency to discriminate on the basis of sex for a recruitment drive aimed at attracting more female officers to the job.

The relevant legislation was typical of anti-discrimination legislation in Australia - requiring acts of discrimination on allegedly justifiable grounds to be approved by the relevant tribunal.

The Tribunal accepted that the correctional centre required a higher proportion of women employees than men. The Tribunal said that increasing the number of female officers at the centre would benefit both the facility's female employees. A five-year exemption from the Act, was granted.

See: Exemption application: State of Qld (acting through the Dept of Corrective Services) [2004] QADT 1 (5 January 2004).

Over-40s can receive favoured treatment

The Qld Anti-Discrimination Tribunal has granted the Brisbane International Institute Pty Ltd an exemption age discrimination provisions so it can target people over 40 in a new employment initiative.

The Tribunal granted the Institution's application for a five-year exemption, to November 2008.

See: Exemption application: Brisbane International Business Institute Pty Ltd [2003] QADT 26 (21 November 2003).

US nationals only for Boeing

The Qld Anti-Discrimination Tribunal has granted Boeing Australia Holdings Pty Ltd an exemption from the race discrimination provisions. The company is a wholly-owned subsidiary of the United States company providing defence goods and services.

The exemption was required to preserve the parent company's compliance with US Government regulations and other agreements. Under the regulations, Boeing cannot employ people who are not current US citizens, due to national security considerations in relation to defence work.

The Tribunal required the company ensure that it takes reasonable steps to avoid or reduce any potential adverse effects on employees or potential employees as a result of the exemption.

See: Exemption application: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21 (19 November 2003).

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