Discrimination: cases wrap 20/12/05

Cases

Discrimination: cases wrap 20/12/05

Discrimination claims will remain relevant under the WorkChoices regime. The four cases here note: employer claims resignation and employee claims maternity leave; no full-time work on return from maternity leave - discriminatory; no light duties for pregnant women - discriminatory; and no exclusive employment entitlement for employees from certain religion.

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Discrimination claims will remain relevant under the WorkChoices regime. The four cases here note: employer claims resignation and employee claims maternity leave; no full-time work on return from maternity leave - discriminatory; no light duties for pregnant women - discriminatory; and no exclusive employment entitlement for employees from certain religion.

Employer claims resignation and employee claims maternity leave

The State Administrative Tribunal of WA found that a legal practice had constructively dismissed the applicant. In doing so they had discriminated against her unlawfully on the grounds of sex and pregnancy.

Background

The applicant was employed as a legal secretary by the second respondent, a company that manages the non-legal staff of the first respondent, a firm of solicitors. In May 2001, six weeks before the expected birth of her first baby, the applicant left work. She claimed that she left on 12 months maternity leave. The respondents claimed she resigned.

The Tribunal decided that the applicant had always intended to take maternity leave and believed, when she left to have her baby, that she was going on maternity leave. It found that the respondents acted to her detriment in telling her she need not put anything in writing, and in not clarifying her intentions.

Western Australia's State Administrative Tribunal commented:

‘It is evident in this case that Ms Biundo's work performance was a factor in the respondents' attitude towards her "leaving".

What is clear is that Ms Biundo's pregnancy provided an opportunity for her employment to cease.

However, her pregnancy and her wish to take extended leave in connection with it, gave the respondents an opportunity which, in effect, they took. … '

BIUNDO and COCKS MACNISH & ANOR [2005] WASAT 300 (16 November 2005)

No full-time work on return from maternity leave - discriminatory

The Qld Anti-Discrimination Tribunal found that the employer's refusal to take an employer back as a full-time employee after a period of maternity leave amounted to discrimination.

Additional compensation awarded

The Tribunal stated:

'… She suffered from stress as a result of having to go back to ask for the letter about the terms of her employment, and she became quite upset and was crying when she left the meeting on 8 December. Her family consoled her and she seemed to largely get over the stress associated with what had happened to her.

She cried in her interview for her new job in April 2004. There is no suggestion that she suffered from any treatable medical condition, nervous stress or any physical ailment.
...
The respondent submits that figure is nearer $3,000. I accept that the consequences for the complainant were, as such cases go, of relatively minor significance and assess the compensation under this head at $5,000…. [for a total of] $21,000 …'

Pressler v Stewart [2005] QADT 33 (24 November 2005)

No light duties for pregnant women - discriminatory

The NSW Administrative Decisions Tribunal found that the attitude of the employer in essentially ignoring an employee's request for light duties, as she was suffering some ill effects from her pregnancy, amounted to discrimination.

Serious consideration by employer required

The Tribunal noted:

'It is clear that NRAHS did not see Ms Jordan as having a legal entitlement to alternative duties, and it is true that she did not have an entitlement equivalent to a workers compensation claim. What she did have was an entitlement to have NRAHS give serious consideration to full time alternatives to her blood collection duties.

… Ms Jordan says that she could have swapped duties with Ms Brown. Mr Newell did not deny this. Rather, his evidence was that, in his view, it would have been necessary to negotiate with staff in Histology to share some of the tasks of Ms Jordan was to swap duties with her. This was a step he chose not to take. ……

We are satisfied that opportunities for NRAHS to provide alternative full-time duties for Ms Jordan were limited. We are satisfied, however that, rather than impose the discriminatory requirement, it was possible for NRAHS to have made considerably greater efforts to accommodate Ms Jordan’s needs through alternatives that would have both enabled her to remain in full-time employment, and would have enabled blood collections to be done. …'

Jordan v North Coast Area Health Service (No 2) [2005] NSWADT 258 (16 November 2005
 
No exclusive employment entitlement for employees from certain religion

Victorian Civil and Administrative Tribunal found that limiting the allocation of positions to members of a certain church was not justified in the particular circumstances. The employer was a community welfare organisation.

The Tribunal stated:

'… There is insufficient material to satisfy me that the exclusion of non-Christians from employment by ... is necessary for the association or its members to comply with Baptist beliefs or principles.

I have not found or been referred to any legislation which specifically authorises what [the employer] wants to do. ...

Although with some hesitation, I have come to the conclusion it is not appropriate to grant the exemption in the current form. [the organisation] operates programs for all without discrimination.

I am not convinced on the material before me that it would be appropriate to permit discrimination among those whom it employs. A diversity of beliefs among those who provide the services for which it operates may well be beneficial for those who receive those services. It will reflect the diversity of the Mornington community. …

The situation may have been different if the association remained part of the church itself. But it, of course, has been separated from it. Nor do I consider that it necessarily follows from the structure of [the organisation] that its employees must only be Christians.

The association already has power to guide, develop, manage, establish and monitor programs for community care. These powers of course are not affected by the faiths or religious views of the association's employees. …

It follows that I dismiss this exemption application. In conclusion, I would make two comments. First, although I have dismissed the application in its present form, I would be willing, if the association applied, to grant an exemption in a more limited form. …'

Mornington Baptist Church Community Caring Inc - application for exemption (10 November 2005)

Related

Pregnancy guidelines

Absence of religious belief within anti-discrimination protection
 

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