Discrimination: cases wrap 4/5/05

Cases

Discrimination: cases wrap 4/5/05

Three cases here note: sex discrimination is different from sexual discrimination; previous WorkCover claim resulted in employee being unfairly sacked; and a poor recruitment system was not racial discrimination

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Three cases here note: sex discrimination is different from sexual discrimination; previous WorkCover claim resulted in employee being unfairly sacked; and a poor recruitment system was not racial discrimination.

Sex discrimination different from sexual discrimination

Sex discrimination is different from sexual discrimination - to establish sex discrimination a claimant must establish that he/she was treated less favourably than a comparable employee would have been in the same or similar circumstances by reason of his/her sex.

This was the ruling of a Federal Industrial Magistrate who held that an employee who was asked to wear short skirts while working in a gambling establishment was not the victim of sex discrimination.

The Magistrate concluded:

'Ms Zhang complains about the obligation to wear short skirts upon the basis that this treated her as a "sex object".

However, this confuses sex discrimination with sexual discrimination. Ms Zhang must establish that she was treated less favourably than a comparable employee would have been in the same or similar circumstances by reason of her sex. It does not avail her anything to complain that her employer took advantage of her sexuality.

Obviously, Ms Zhang was not treated differently from [another employee] because she was a woman. They are both women. There were no other employees in the gaming area at the hotel against whom Ms Zhang’s treatment might be compared.

… The hotel required staff in the gaming area who would look attractive and would present a more sophisticate image to that of staff in the general bar area.

Even on the basis of a hypothetical comparison, there is no evidence that a male employee, if there had been one in the gaming room, would have been treated any differently.

… Secondly ... the obligation on Ms Zhang to wear short skirts came from a consensual agreement.

… Finally, the obligation on Ms Zhang to wear short skirts was not vigorously enforced. On her own evidence, Ms Zhang seldom complied with it.'

Zhang v Kanellos & Anor [2005] FMCA 111 - 11/03/05

Related

Grounds of discrimination

Previous WorkCover claim - employee unfairly sacked

Refusing to provide work to a casual employee because the employee had made a claim for workers compensation previously was found to be discriminatory on the basis of 'impairment'.

The Victorian Civil and Administrative Tribunal concluded:

'In the circumstances, I conclude that the real reason why the Complainant’s casual work petered out – and why his name was removed from the list of casual employees – was because of his previous WorkCover claim.

No other inference is reasonably open on the material before the Tribunal. The finding that the Complainant was treated less favourably than the other five unsuccessful applicants for permanent positions because of his previous WorkCover claim is a finding that he was treated less favourably because of the attribute of impairment.'

Dek v PrixCar Services Pty Ltd (Anti-Discrimination) [2005] VCAT 738 - 22/04/05

Related

Sick leave not impairment: discrimination claim rejected

Poor recruitment system was not racial discrimination

False assumptions about a person's right to work did not amount to direct racial discrimination.

A Federal Industrial Magistrate found that there was no decision based on racial grounds and the occurrence was more an example of poor administration.

The Magistrate concluded:

' … [the respondent knew] that he was apparently from Nigeria. This apparently led to her making false assumptions about Mr Meka’s right to work in Australia and then his residence.

... those false assumptions point to carelessness but not direct racial discrimination.

… Mr Meka was not refused employment by reason of his race, colour, national or ethnic origin.

...However, Mr Meka was ineligible for the position he sought because he had more than three years post graduation employment experience.

Even if Mr Meka could establish that the process of considering his employment application was discriminatory, he has not suffered any loss.

The process did not disadvantage him because he was not eligible for the employment he sought anyway. He was offended and upset by the manner in which his application was considered but Ms Kazinoti promptly and properly acknowledged the errors that she recognised on 1 July 2003, and offered her sincere apology.'

Meka v Shell Company Australia Ltd [2005] FMCA 250 (1 April 2005)

Related

Racial discrimination explained

Personality clash and racial taunt lead to litigation

 

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