Family responsibilities breach causes unlawful discrimination

Cases

Family responsibilities breach causes unlawful discrimination

Source: Australian Business Ltd An employer who refused to allow an employee part-time employment on her return from maternity leave, has been found by the Federal Magistrates Court to have unlawfully dismissed the employee.

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Source: Australian Business Ltd

 

An employer who refused to allow an employee part-time employment on her return from maternity leave, has been found by the Federal Magistrates Court to have unlawfully dismissed the employee.

The employer breached the Sex Discrimination Act 1984 and was ordered to pay over $7,000 in damages and also to apologise to the employee.

Background

At the conclusion of her maternity leave the employee sought part-time work instead of returning to her full-time position. She was refused part-time work and so she then requested her full-time position back. This was also refused as the management had engaged another full-time employee to cover her job.

The employee also argued that she was the victim of indirect discrimination on the basis that she was subjected to a requirement to work full-time. This was likely to disadvantage women because of their disproportionate responsibility for the care of children.

Consideration and findings

The Magistrate found that the reason the manager acted the way he did was because he was unwilling to countenance at that time the possibility of the employee working part-time as he had filled her full-time position, rendering that position also unavailable.

The Magistrate stated:

'[The Manager] had taken that action because he had formed a view (I think correctly) that the applicant was unwilling to work full time because of her family responsibilities. I am left in no doubt that the applicant was dismissed from her employment on 1 August, 2000 because of her family responsibilities.'

'..If I am wrong in that conclusion I find in the alternative that the respondent discriminated indirectly against the applicant contrary to s.14(2)(c) of the Act. That is because [the employee] was denied the opportunity to work part time, being a denial that was likely to disadvantage women because of their disproportionate responsibility for the care of children.'

See: Escobar v Rainbow Printing Pty Ltd (No.2) [2002] FMCA 122 (5 July 2002) - Driver FM.

 

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