Equal opportunity cases: 2011 in review

Cases

Equal opportunity cases: 2011 in review

Age discrimination complaints are increasing as a proportion of total discrimination complaints, but sex discrimination remains the major source of employment-related complaints, according to the latest statistics.

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Age discrimination complaints are increasing as a proportion of total discrimination complaints, but sex discrimination (which includes sexual harassment, family responsibilities and pregnancy) remains the major source of employment-related complaints, according to the latest statistics.

2011 was not a particularly notable year for equal opportunity complaints and litigation, unlike 2010 when the high-profile ‘David Jones case’ attracted widespread publicity, even though it was eventually settled out of court.

The most controversial and widely-reported discrimination case in 2011 was a racial vilification and discrimination complaint against the media commentator Andrew Bolt, which was not related to employment. Despite this, there were some interesting decisions on various employment-related issues, which are summarised later in this article.

Complaint statistics

The 2010–11 Annual Report of the Australian Human Rights Commission actually recorded a drop in the number of complaints made to the Commission for the first time in six years. The number of complaints fell from 2517 in 2009–10, to 2152 in 2010–11, after five years of steady increases.

The pattern of complaints received, however, was little different from the previous year. Thirty-eight per cent were made under the Disability Discrimination Act, 21% under the Sex Discrimination Act, 20% under the Racial Discrimination Act, 13% under the Australian Human Rights Commission Act and 8% under the Age Discrimination Act. However, the number of complaints under the Age Discrimination Act actually increased slightly in 2010–11, versus declines under each other Act, so it appears that age discrimination is gradually becoming a more significant issue — or, at least, one that more people are willing to lodge complaints about.

When it comes to employment, however, complaints of sex discrimination are by far the most prolific, with 88% of all complaints under the Sex Discrimination Act being employment-related. For the other grounds, the respective figures are 66% for age discrimination, 35% for race discrimination and 31% for disability discrimination. So, of all employment-related complaints, around 44% relate to sex, 27% to disability, 16% to race and 13% to age.

Another interesting statistic is that less than one-half of all complaints are conciliated, with around 35% being dismissed or declined by the Commission. Around 60–65% of the complaints that are conciliated are successfully resolved by this process.

Note: State and territory equal opportunity Acts cover a wider range of grounds of unlawful discrimination than the federal Acts, so their statistics may be different.

Significant cases in 2011

The following employment-related decisions each raised some interesting points of law.

Work and family responsibilities

A woman was employed part-time by a take-away food outlet. She suffered from Crohn’s disease and some other physical disabilities, and needed to wear a colostomy bag. After the business changed hands, the new owners required her to work longer hours and drive a mobile food van. They promised to provide support from another employee in the latter role but did not do so.
 
When the woman claimed that she could not work all the extra hours because of her childcare/family responsibilities (she was a single mother with four children), the business owners placed pressure on her to work longer hours, ignored her requests to adjust her hours and clarify her employment position, and made an insulting comment about her colostomy bag. They advertised her job without telling her whether she was still employed, then claimed she had abandoned her employment when she took sick leave.
 
The Federal Magistrates Court awarded her total damages of over $63,000.
 
The significance of this case is that even small businesses need to find ways to assist employees to balance their work and family responsibilities, it is unacceptable to state that ‘this is the job, take it or leave it’.
 

Discrimination on ground of political beliefs or activity
 
A man with a managerial job at a council was dismissed 11 days before the council was closed and amalgamated with another council. He received no prior warning of dismissal, nor any reason for it, but allegations were later made about his job performance. The man’s de facto partner was a political activist who had publicly criticised the respondent councillors and the council’s former CEO on several occasions. The man was regarded as supportive of the mayor, whom the same councillors frequently opposed.

The Queensland Civil and Administrative Tribunal found that the main reason for the man’s dismissal was his partner’s political beliefs and activity and his association with her. The Council, not the individual councillors, had discriminated against him, and he received damages of around $368,000.

The significance of this case was that it examined the issue of an employee’s association with others (in this case his partner) who engaged in political activities, even though the employee himself did not engage in them.
 
Note: Leave has been granted to both parties to appeal against this decision. See: Carey v Cairns Regional Council & Ors [2011] QCAT 26 (21 November 2011)


Too old to drive a bus?

A 75-year-old bus driver and tour guide operator was told he would no longer be engaged for the tours he had been conducting, but would only be offered shorter and less onerous jobs. The employer said it had concerns about his job performance, based on a driving accident, some driving offences and complaints from customers, but mainly his age. After he had a second accident, the employer said he would receive no further work.

The New South Wales Administrative Decisions Tribunal found that age was the main (if not the only) reason for dismissal and awarded compensation of over $25,000. It said that a younger driver with a similar record would not have been dismissed in the same circumstances.

The significance of this case is the need to focus on ability and job performance only, and to treat all employees equally regardless of their age.

A woman claimed she was offered a job but that the job offer was withdrawn before she commenced employment because she ‘failed’ a pre-employment medical examination, and the employer claimed its job offer was subject to passing that examination. The woman’s ‘disabilities’ included obesity and a past knee injury, and the examination had indicated that she would not be capable of performing the inherent requirements of the job.

The job description described the job as 70% office-based and 30% site-based. Its duties included resolving customer complaints onsite, which could include ‘traversing sites which are often difficult to negotiate due to uneven terrain and disturbed ground conditions’. These sites could include ‘national parks, dense bushland and construction sites’.

The New South Wales Administrative Decisions Tribunal examined the evidence and concluded that the woman would not have been able to perform these requirements of the job, and that they were inherent requirements of it. Therefore, the employer did not discriminate on the ground of disability by withdrawing the job offer.

The significance of this case is that the employer successfully defended its decision because it had relied on objective evidence, in this case a thorough and accurate job description and a pre-employment medical examination. Cases involving disability discrimination often examine what are the ‘inherent requirements’ of a job in considerable detail, so an employer needs to be well prepared.

Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176 (20 July 2011) 


Whether private comments made at work are a ‘public act’

A transsexual man claimed that some abusive comments made about him by a co-worker at his place of employment amounted to transgender vilification (a ground of discrimination in New South Wales). The two employees had some previous abusive exchanges but the co-worker had also made comments to another employee that were relayed to the transsexual man.
 
This case discussed whether opinions expressed in private conversations of this nature could amount to a ‘public act’ (and thus become unlawful vilification).

The New South Wales Administrative Decisions Tribunal held that the definition did not include private conversations, even if they occurred in a public place such as an open workplace. It did not prohibit people from having beliefs or expressing ideas, even if the views were unpopular with other people. The complainant had to establish not that the act was done in public, but that it was done ‘otherwise than in private’. A single conversation with one other employee was regarded as a private conversation. It was not overheard by anyone else and no observer could have identified its contents. The employee was not informing the public in general what she thought about another employee.

Had the remarks been made as a public act, unlawful transsexual vilification would have occurred, but in this case the complaint was dismissed.

This case does confirm that comments made in private will not generally make an employer liable for the consequences; however, it also demonstrates how indiscreet and ‘nasty’ comments can cause problems at a workplace, and why they should be discouraged.
 

Source: Mike Toten, HR writer, prepared this summary.
 
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