Discrimination - cases wrap (3)


Discrimination - cases wrap (3)

The seven cases here note: job share closure - discrimination; workplace discrimination - employee actions capture employer; applicant not a risk to children; IR professor dismissal - not discriminatory; redundancy pay as job refusal justified; administration failures, not race, caused dismissal; and Ambulance Service discriminated against diabetic job applicant.


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The seven cases here note: job share closure - discrimination; workplace discrimination - employee actions capture employer; applicant not a risk to children; IR professor dismissal - not discriminatory; redundancy pay as job refusal justified; administration failures, not race, caused dismissal; and Ambulance Service discriminated against diabetic job applicant.

Job share closure - discrimination

The Qld Anti-Discrimination Tribunal ordered a payment of $47,250 to a pregnant woman who lost her job-share position as a registrar at a Queensland private school. Management decided the arrangement was not working well.

Queensland's Anti-Discrimination Tribunal found the private school in Brisbane indirectly discriminated against the woman.

The school also directly discriminated against the woman when it later offered her a low-paid, low-status job because she was pregnant. Although many teaching positions were available, she was refused such a position.

Indirect discrimination re part-time position

President Dalton found indirect discrimination. The requirement that the registrar's position be full-time was not reasonable under the Act:

'She was encouraged to work part-time. She was given a part-time job. It was intended that she have that for a fixed term, but this was never properly documented or agreed and that was the respondents' fault. The second respondent then changed its mind about the efficacy of a job-share for the Registrar's position and dismissed the complainant ...

'Having dismissed her, the respondents purported to mollify her by entering into negotiations towards another employment contract.

'The respondents did not offer her a job which was a realistic, comparable alternative. There were teaching positions available … for reasons known only to Dr Hillier, the respondents would not offer such positions to the complainant. The refusal to offer her work which she wanted, and which was available, was completely unreasonable.'

Always discrimination to refuse part-time work?

President Dalton pointed out that her decision about reasonableness was not a decision that an employer can never make such a move - ie return a part-time job to full-time without discriminating.

The decision to return the job to a full-time position was not of itself unreasonable. However, it was unreasonable to impose a term that the complainant must work full-time to keep her job as registrar in the circumstances of this case.

Edwards v Hillier & Educang ltd t/as Forest Lake College [2006] QADT 34 (11 August 2006)


Indirect discrimination - casual teachers disadvantaged

Workplace discrimination - employee actions capture employer

The Federal Court agreed with the submission of the appellant with respect to the effect of s 106 (vicarious liability) of the Federal Sex Discrimination Act.

All that is required in order to make out a prima facie case against an employer is to establish a prima facie case against an employee of that employer.

Once established, the provisions of s 106 deem an employer liable without the need for an appellant to prove the elements of vicarious liability against the employer.

Leave to bring the application out of time was granted.

Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 -FCA (Cowdroy J) – 26/5/06


Company vicariously liable for harassing conduct of manager

Applicant not a risk to children

The applicant who had one conviction for indecent assault discharged the onus of proving that he was not a risk to the safety of children.

The applicant sought an order to enable him to work unsupervised with children and young persons.

On 25 July 2005 he had been convicted of indecent assault of his partner's nine year-old daughter on one occasion between 15 and 28 August 1997. He was placed on a good behaviour bond for two years and fined $2000.


On the evidence before the Tribunal, the Deputy President was satisfied that the applicant was not a risk to the safety of children. This evidence included the concurring assessments of two recognised experts, the applicant's contrition and acceptance of responsibility of his actions, and the absence of the precipitating factors that existed at the time of the offence which aware not likely to recur.

The Tribunal rejected the claim for a condition that the applicant should attend counselling on any exemption granted to him. There was no evidence to show that the applicant was a real or unacceptable risk without the imposition of such a condition.

RY v Commission for Children and Young People [2006] NSWADT 51-NSW Administrative Decisions Tribunal (Kelly DP) –20/2/06


NSW sex offenders legislation in the spotlight

IR professor dismissal - not discriminatory

The University of Queensland dismissed a senior IR academic because of its strategy to downgrade teaching of the IR discipline, rather than because of his trade union activity.

The applicant told the Qld Anti-Discrimination Tribunal that he was well-known as being forthright on trade union issues. However, the tribunal said the head of the relevant school had been given instructions to put the institution 'on the map' of business schools. The move to downgrade IR was part of a bigger picture.

The tribunal allowed the employee's contract to lapse and decided not to create a continuing position for him because of the school's new orientation, rather than the associate professor's trade union activity.

Lafferty v Zimmer, Brailsford and University of Queensland [2006] QADT 16 (21 April 2006)


Employer required change of work location - not discrimination

Redundancy pay as job refusal justified

The NSW Industrial Court found that a lawyer who refused a job offer following a merger for reasons that included concern about the new firm's past involvement in a discrimination case against a female partner was entitled to redundancy pay.

Justice Marks found PricewaterhouseCoopers (PWC) termination without redundancy pay when she refused post-merger job offer with Hunt & Hunt was unfair:

'The applicant was entitled to have regard to her career prospects, was entitled to have regard to her clientele and practice in the context of those career prospects, was entitled to express some concern about the fact that the respondent's insurance division was to be quarantined for a relatively long period of time within the Hunt & Hunt practice, and was entitled to come to the conclusion that she did not wish to avail herself of the opportunity of employment with Hunt & Hunt …'

Brooke-Cowden v PricewaterhouseCoopers Services Pty Ltd [2006] NSWIRComm 173 (1 June 2006)



Administration failures, not race, caused dismissal

The NT Anti-Discrimination Commission Aboriginal principal failed to prove race and sex discrimination at NT school

The former principal of a college for indigenous students failed to prove she was discriminated against by the school's management.

Thr tribunal found:

' … the unanimous decision of the executive to terminate [the principal's] employment was firmly grounded in her managerial and administrative shortcomings as college principal rather than in any other consideration such as her race or sex …

' … failure or inability to communicate with the CEO, the executive and some staff, and her failure to adequately discharge the management side of her duties, developed into a major 'college management problem' which the executive was unwilling to tolerate …'

Harbour v Scollay & Nyangatjatjara College [2005] NTADComm 2 (28 June 2006)

Ambulance Service discriminated against diabetic applicant

A Federal Magistrate has found that the NSW Ambulance Service breached the Federal Disability Discrimination Act by refusing to allow a diabetic to become a trainee ambulance officer.

Federal Magistrate Raphael ordered the service to allow the applicant to proceed to the next stage of the recruitment process for training as an ambulance officer and pay him $5,000 in compensation.

The magistrate accepted evidence from the applicant's treating doctor that he would be able to manage his condition to avoid any unacceptable risks. He rejected the defence that the applicant would have been unable to perform the inherent requirements of the position.

Vickers v The Ambulance Service of NSW [2006] FMCA 1232 (25 August 2006)


Discharge of diabetic RAAF operator not discriminatory



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