Modem discrimination case overturned

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Modem discrimination case overturned

The imposition of a requirement, condition or practice in employment cannot amount to indirect discrimination unless that requirement, condition or practice is unreasonable.

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Australian Business Ltd  

 

The imposition of a requirement, condition or practice in employment cannot amount to indirect discrimination unless that requirement, condition or practice is unreasonable. The Supreme Court of Victoria has found that the requirement that Hansard sub-editors attend Parliament when either Chamber is in session, is only discriminatory if the requirement not only subjects employees with a particular attribute to a detriment, but if it is also not a reasonable requirement. In determining whether a requirement is indirectly discriminatory, it is important to consider the reasonableness or otherwise of the requirement for all employees, and not focus the examination of the reasonableness of the requirement exclusively on the particular circumstances of one employee.

In State of Victoria v Schou, [2001] VSC 321, (31 August 2001), it was concluded that an 'attendance requirement', generally applicable to Hansard sub-editors was by no means inherently unreasonable. By seeking to be relieved of that requirement an employee with carer's responsibilities sought a favour; one which had not been granted by her employer to any other employee. Her application for that favour, that being to be relieved of the 'attendance requirement', was granted but not realised in that an alternative work practice failed to materialise before her resignation on 1 November 1996. The Court concluded that this of itself was not discrimination.

Background

Employed by the Department of Victorian Parliamentary Debates, the respondent to the appeal commenced employment in 1979 as a trainee Parliamentary Hansard Reporter. From June 1993 until her resignation in November 1996, Schou (the respondent to the appeal) fulfilled the role of sub-editor for Hansard.

In proceedings before the Victorian, Civil and Administrative Tribunal, Schou claimed that the Department had discriminated against her on the basis of her status as a parent or carer. The complaint stemmed from her employment experiences when she found it increasingly difficult to cope with the competing responsibilities as a sub-editor and as a parent. The evidence before the Tribunal revealed that in February 1996 Schou had informed the Department that as a result of the poor health of her second child she wished to work on a part-time basis. The Department and Schou came to an agreement on or about 20 August 1996 that her competing responsibilities would be addressed through the installation of a modem and fax machine, thereby allowing her to maintain full-time responsibilities as a sub-editor working from home two days a week. Whilst this proposal was agreed to by the Head of the Department, it was not implemented some 11 weeks later when Schou resigned on 1 November 1996.

The Tribunal held that the evidence supported the conclusion that Schou was required to work full-time and be a carer, and it was reasonable for the Department in these circumstances to alleviate that pressure through the 'modem proposal'. According to the Tribunal, the time delay in implementing that proposal amounted to a failure or refusal to implement the 'modem proposal'.

The appeal

On 1 November 2000, the State of Victoria appealed the Tribunal's decision. The questions of law raised by the State of Victoria related to whether the Tribunal erred in law in reaching the conclusion that the requirement or condition imposed upon Schou (mainly that she attend work on site at Parliament House on sitting days) was unreasonable. It was the submission of the State of Victoria that this error in law on the part of the Tribunal arose from its failure to consider the reasons supporting the imposition of the requirement or condition upon Schou. The Appeal was heard before Harper J of the Supreme Court of Victoria on 5 June 2001.

Consideration

His Honour commenced consideration of the appeal by outlining the Tribunal's reasoning. The Tribunal found that:

  1. Schou was a person with an attribute, that being a parent and a carer;
  2. Schou could not comply with the requirements of her employer that she attend Parliament whenever Parliament was in session;
  3. Other employees who did not have the attribute apportioned to Schou could comply with that requirement;
  4. Those employees who could comply with the requirement constituted a higher proportion of the Department's employees than those of Schou's colleagues who could not comply with the requirement; and
  5. The requirement was not reasonable because Schou could perform her duties from home two days a week once the Department did what was reasonably open to it and supplied her with a modem.

Based on these points the Tribunal held that the consequences of Schou failing to comply with the impugned requirement were that she risked losing her job. That is to say, the Tribunal expressed its conclusion that by requiring Schou to work on site at Parliament House during sitting days the Department was in effect subjecting Schou, the employee, to a detriment, the detriment being that she had to unreasonably choose between the obligations of her full-time employment and her obligations as a parent and/or carer. In this respect, Harper J formed the view that the Tribunal concentrated exclusively upon the reasonableness of the 'modem proposal'. It was his Honour's opinion that in so doing the Tribunal erred.

The Court formed the view that the 'modem proposal' was only relevant if it was found that the attendance requirement was an unreasonable requirement. As such the Tribunal ought to have undertaken a much broader focus than one which concentrated upon the 'modem proposal'. According to Harper J,  

'This case involves the rights and interests not only of employees but also of employers; parents and carers as well as those who are neither. It necessitates the interpretation of important legislation in the field, that of employment law, already occupied by the law of contract and by industrial awards and agreements. The Equal Opportunity Act has its place in that field; but Courts and Tribunals should not, in defiance of its proper construction and without regard for other, long established, claimants, arrogate to it territory which the legislature never intended that it should occupy'.

His Honour went on to note that the Victorian Equal Opportunity Act is principally concerned with direct discrimination. The Act also has the purpose of providing that the imposition of a requirement, condition or practice cannot amount to indirect discrimination unless that requirement, condition or practice is unreasonable. According to Harper J, it followed that the requirement that Hansard sub-editors attend Parliament when either Chamber was in session, was only discriminatory if it not only subjected Schou to a detriment but if it was also not a reasonable requirement. The Court held that as such it was not sufficient to concentrate only on Schou to the exclusion of other employees. The Court held that the Tribunal's decision at first instance did not examine the reasonableness or otherwise of the requirement for all employees, but focused the examination of the reasonableness of the requirement exclusively on Schou's particular circumstances.

The Court concluded that the 'attendance requirement', as a requirement, condition or practice generally applicable to Hansard Sub Editors was by no means inherently unreasonable. It was held that the 'attendance requirement' was appropriate to ensure that Parliament received the benefit of timely reports that were edited accurately. By seeking to be relieved of that requirement Schou sought a favour; one which had not been granted by her employer to any other employee. Her application for that favour, that being to be relieved of the 'attendance requirement', was granted but not realised in that the modem failed to materialise before her resignation on 1 November 1996. The Court concluded that this of itself was not discrimination.

The Tribunal was held to have focused on the impact on Schou rather than whether the 'attendance requirement' itself was reasonable for all employees. This approach was held by Harper J to be erroneous in that a finding or a conclusion about the general reasonableness of the 'attendance requirement' could not be determined. In the light of this error, the Court ruled that the Tribunal's decision be overturned. The matter was remitted back to the Tribunal for a resolution to be made pursuant to the conclusions and findings of the Court in these proceedings.

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