Indirect discrimination test finds relocation 'reasonable'

Cases

Indirect discrimination test finds relocation 'reasonable'

The first decision on the new carers' responsibilities provisions of the NSW Anti-Discrimination Act has found against a WorkCover manager who argued the authority's relocation meant she would have less time to spend with her two young children.

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The first decision on the new carers' responsibilities provisions of the NSW Anti-Discrimination Act has found against a WorkCover manager who argued the authority's relocation meant she would have less time to spend with her two young children.

Background

A senior manager with WorkCover NSW alleged that her employer was in breach of the indirect discrimination provisions of the Anti-Discrimination Act 1977 in relation to her carer's responsibilities and her sex. 

She alleged that WorkCover imposed a requirement on her, and the majority of employees working at head office in Sydney, that they be based in Gosford from October 2002. The manager said that she could not comply with that requirement because she has responsibilities to care for her two youngest children aged 6 and 8. 

The parties agreed that a substantially higher proportion of men compared with women and people without carer's responsibilities compared with those with carer's responsibilities, could comply with the requirement. The main issue in dispute was whether the requirement was reasonable in all the circumstances.

In February 1999, the NSW Premier Bob Carr announced that WorkCover would relocate to Gosford over the next 2 and a half years. In September 1999, the manager successfully applied for a position as team leader. The job ad was headed, in capital letters, ' WorkCover is scheduled to relocate to Gosford by 2002'.

She said she was under the impression that the relocation did not apply to her because she was in a service delivery role. Neither the letter offering her the position, nor her letter of acceptance mentioned anything about relocating to Gosford.

Following a number of meetings during which WorkCover attempted to accommodate her needs, the manager received a letter in October 2002 directing her to work in Gosford five days per fortnight. 

The manager argued that being based in Gosford meant she was spending about 10-15 hours more a fortnight travelling than she had to when her job was based in Sydney. This meant she was spending more hours away from home for the same pay. Though allowed to work flexible hours, she argued that if she started later to accommodate seeing her children off to school, then she had to finish later and that meant she was only able to see her children either in the morning or the evening, but not both.

Findings

The tribunal found the key issues of the case were: whether the manager had responsibilities as a carer as defined by the Act; if so, the precise nature of the requirement with which she must comply and whether that requirement was a 'requirement' for the purposes of the Act; and if so, whether that requirement was reasonable in all the circumstances.

It said s49S defined the relationship which must exist between the aggrieved person and the person who is being cared for, but did not define what was meant by 'the person's responsibilities to care for or support' another person. 

However, it took a broad interpretation which it said was in keeping with the human rights purpose of the provision. 'There is no basis, either in the Act itself, or in any external materials, for confining the responsibilities to care for or support another person to particular categories of care or support such as dropping off, picking up or attending to a person who is sick.'

The tribunal said the requirement that the manager be based in Gosford was a term or condition of her employment. It also found that the requirement, which involved extra unremunerated travelling time, was a detriment within the meaning of that term in s49V(2)(d) and s25(2)(c) of the Act. 

It found the circumstances in which the manager became aware that her position would be re-locating to Gosford were relevant to determining the reasonableness of the requirement. It said that, despite the fact that she was not told expressly that her particular position would be moving until June 2001, she did realise as early as February 1999, that there was more than a mere possibility that her position would be transferred to Gosford. 

All employees whose positions were to be re-located were given other options such as special consideration for relocating their residence to an area closer to Gosford or help in finding another position within the public or private sector. She did not take up any of these options as she was hoping that she would be able to convince management that she should remain in the City office.

The tribunal argued that even if it were accepted that the manager could theoretically comply with the requirement, the result or effect of compliance was that she would have less time to spend with her children. 'Since the purpose of the indirect discrimination provisions is to ensure, as far as possible, that equality of result is achieved, it is those results which must be the focus when interpreting the provision. Based on this analysis, it is our view that the [manager] is not able to comply with the requirement.'

Considering whether the requirement was discriminatory, the tribunal compared the proportions of relevant men or non-carer's who could comply with the requirement with the proportion of women or carer's who could comply. In this case, of the nine positions, 7 out of 7 (100%) of the managers without carer's responsibilities could comply with the requirement, while none of the two people with carer's responsibilities (0%) could comply. Similarly 7 out of 7 (100%) of men could comply while none of the two women (0%) could comply.

However, the tribunal went on to accept WorkCover's evidence that there were genuine management reasons for relocating the manager. It agreed it was more efficient and effective, from a management point of view, for her to be based in Gosford meaning the requirement was 'logical and understandable from a management point of vie'". 

It said WorkCover made considerable efforts to accommodate the manager's carer's responsibilities. It agreed that the manager's preferred option, that she have an office in Sydney and go to Gosford whenever there was a meeting she needed to attend, while less discriminatory option, did not achieve the same purpose as being based in Gosford.

The tribunal concluded that 'balancing the impact that being based in Gosford has on [the manager's] responsibilities as a carer, we consider that, in all the circumstances, the requirement is reasonable'.

See: Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184, (11 August 2003).

 
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