Employee on light duties: refusal of overtime not discriminatory

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Employee on light duties: refusal of overtime not discriminatory

A finding that an employer had discriminated against an injured employee by refusing to offer him overtime was overturned on appeal by the Victorian Court of Appeal.

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A finding that an employer had discriminated against an injured employee by refusing to offer him overtime was overturned on appeal by the Victorian Court of Appeal.

The Court of Appeal upheld the employers’ right to impose work practices designed to secure the safety of a category of employees. The Court of Appeal said further that the Victorian Equal Opportunity Act 1995is not concerned with discrimination per se, but whether such discrimination is unlawful.

The employee had suffered a number of injuries during his 16 years of employment with Heinz. These injuries resulted in him taking 797 days off work during the period of his employment. After a recent absence on Workcare payments, he returned to work on restricted duties.

There was an increasing amount of overtime being performed in the employee’s department. However, the company had in place a policy of denying overtime to persons certified as fit only for restricted duties. The employee requested overtime, but was refused. A meeting was held in an attempt to resolve the employee’s request, but with no positive outcome. The employee made a complaint to the Anti-Discrimination Tribunal, and was awarded $5000 compensation. A single judge of the Supreme Court upheld this award. The employer then appealed to the Court of Appeal.

The Court of Appeal, in overturning the previous findings, said the Tribunal must be satisfied not only that discrimination has occurred, but that it is unlawful in the sense that it is not authorised by a law of the State. The Court of Appeal said that one could conceive of many circumstances in which an employer of a large workforce may wish to set safety standards, albeit potentially discriminatory in nature, to protect a particular class of that work-force in fulfillment of the employer’s legal obligations (HJ Heinz Co Aust Ltd v Turner; No 4090 of 1997,1 July 1998).

 

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