Discrimination - cases wrap (2)

Cases

Discrimination - cases wrap (2)

No genuine effort to return maternity leave employee to same job; Employer must attempt to solve problems; No injunction when facts four years old; Reinstatement despite sexual harassment; Easier to prove anti-union actions under pre-WorkChoices law; Pre-WorkChoices dismissal of union official breached legislation.

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No genuine effort to return maternity leave employee to same job; Employer must attempt to solve problems; No injunction when facts four years old; Reinstatement despite sexual harassment; Easier to prove anti-union actions under pre-WorkChoices law; Pre-WorkChoices dismissal of union official breached legislation.

No genuine effort to return maternity leave employee to same job

The Federal Magistrates Court found the applicant received less favourable treatment after returning from over two years maternity leave after giving birth to two children.

The employee was a production resources coordinator at ABC’s Perth studios before taking maternity leave.

There was no evidence before the Court that any significant attempt was made over a three-month period to ensure that the applicant was returned to her former position.

Ilian v ABC, FMC 1500 , 17/10/06

Employer must attempt to solve problems

The NSW Administrative Decisions Tribunal found management had wrongly considered the worker's complaints of discrimination and subsequent victimisation to be unreasonable and vexatious against a supervisor.

A manager had suggested that the worker should make friends with the two colleagues at fault. This was an inappropriate response to the problem.

As a result the pharmacy distribution company was ordered to pay $15,000 for racial discrimination to the storeperson who was allegedly called a 'lazy black Indian bitch'.

Velagapudi v Symbion Pharmacy Services Pty Ltd formerly Faulding HealthCare Pty Ltd [2006] NSWADT 329 (16 November 2006)

No injunction when facts four years old

The Federal Court refused an application for injunctive relief and general damages on basis of disability discrimination. This was a non-employment case. It does illustrate the reluctance of a court to grant injunctions when material circumstances cannot be reasonably affected by the court's order.

The case involved a dispute over the provision of education services.

Neither the evidence before the primary judge, nor the evidence subsequently adduced before the Court, sufficiently established the likelihood of a future contravention of the appellant’s rights. That of itself was an adequate basis for the refusal of the injunction sought.

In addition, more than four years had passed since the relevant acts of discrimination occurred. The appellant was now at a different stage of her development. The education services that she might require, and those that the respondent is presently prepared to offer, differed considerably from those that were available at the time of the contraventions of the Disability Discrimination Act.

Hurst v State of Queensland (No 2) [2006] FCAFC 151 (27 October 2006)

Reinstatement despite sexual harassment

Senior Deputy President Grayson of the AIRC reinstated (on certain conditions) the Deputy Registrar at Sydney's Downing Centre Local Court, who had harassed a junior female colleague.

The conduct was not enough to warrant the termination of an 18-year otherwise unblemished career.

Senior Deputy President Grayson did comment:

'It cannot be said in my opinion that because these things occurred outside the workplace, the [employer] has no relevant legitimate interest in them. To the contrary, it must be accepted that the [employee's] out of hours conduct towards [his colleague] had a direct and adverse impact on workplace relations.'

There were too many doubts about the credibility of a key witness in the NSW Attorney General Department's decision to dismiss the employee, in the Commission's view.

No back pay was ordered and there was no continuity of employment provided. Other conditions relating to interaction with staff and counselling were imposed.

Lupcho Dafkovski v Attorney General's Department [2006] NSWIRComm 378 IRC 890 of 2006 (7 December 2006)

Easier to prove anti-union actions under pre-WorkChoices law

The Federal Court ordered an abattoir to pay $209,000 for anti-union sackings under old the Workplace Relations Act.

The WorkChoices law now requires the prohibited reason to be 'sole or dominant' whereas the previous law required that the conduct be a material factor in the discrimination.

McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302 (4 October 2006)

Pre-WorkChoices dismissal of union official breached legislation

The Federal Court fined an employer a total of $16,000 for breaches of the pre-reform Workplace Relations Act over the dismissal of a non-union member.

The Court was also told that the dismissal coincided with a decision to close the spray paint shop, so the employee became redundant. However, Justice Dowsett did note that 'it has been admitted that one of the reasons for terminating his employment at that time was the fact that he had chosen to resign from the union.'

Hadgkiss v Sunland Constructions (Qld) Pty Ltd & Ors [2006] FCA 1566 (29 November 2006)

  

 

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