No time off to care: $100K discrimination case

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No time off to care: $100K discrimination case

An employer that refused to give an employee time off to care for his dying girlfriend has been ordered to pay him more than $100,000 compensation for unlawful discriminatory treatment.

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An employer that refused to give an employee time off to care for his dying girlfriend has been ordered to pay him more than $100,000 compensation for unlawful discriminatory treatment.

[Full text of this case: B v Media Options Group Pty Ltd & Ors [2013] FCCA 79 (19 April 2013)]

B was employed with Media Option Group Pty Ltd from March 2003 until 9 November 2005, when the company advised him that he had been dismissed for serious acts of misconduct. Subsequently, B lodged a complaint against his former employer with the Federal Circuit Court of Australia, alleging unlawful discrimination extending to his termination.

His case was that in mid-July 2005, his then partner, M, became ill with a rare cancer needing intensive medical treatment over a relatively short period of time, including many rounds of chemotherapy. As the only person available to care for M and attend to her needs, B was under great pressure in attending to his work duties while also taking her to medical appointments, and dealing with her physical and emotional reaction.

B alleges that he was thereafter subject to ‘unfavourable treatment’ by D (the manager and B’s direct supervisor) and D’s wife (a co-worker). For instance, they provided him with no flexibility to meet M’s needs which, among other things, had an impact on his income. When viewed in the context of his family and carer responsibility, B said the conduct of Mr and Mrs D amounted to discrimination under the Disability Discrimination Act 1992 (Cth) (DDA) and the Sex Discrimination Act 1984 (Cth) (SDA).

Media Option, together with Mr D and Mrs D, rejected B’s claims and sought to explain the relevant events by making a number of counter allegations against him. These included that B made racial comments, physically and verbally abused staff, sexually harassed staff, was violent, engaged in bullying behaviour, consumed alcohol at work (including while working with machinery) and smoked at work. They argued B’s dismissal was justified by his ‘unacceptable behaviour’ and that they had ‘no choice’ but to dismiss him, particularly to protect other staff.

‘Get rid of her’
 
In his decision, Justice Nick Nicholls acknowledged that B had been M’s carer in relation to her various needs arising from her medical condition until her death in 2006 and that Mr D and Mrs D, from about mid-July 2005 knew of M’s condition and B’s need to care for her.

Assessing the reliability of the witnesses, Justice Nicholls said that the ‘contest of credibility … overwhelmingly, must go to [B]’. Furthermore, he was satisfied that Media Option, together with Mr D and Mrs D, had contravened the DDA and SDA and that, from mid-July 2005, they treated B less favourably because of his need to care for M and subjected him to detriment. Namely:
  • Mr D told B that he should ‘get rid of’ M and should not stay home to care for her.
  • Mr D made derogatory comments about M and refused to give B time off to care for her.
  • Mr D berated B, and abruptly terminated phone calls from him seeking leave to look after M.
  • Mr D ‘demoted’ B when he took time off without approval to care for M.
  • Mr D dismissed B for reasons that were fabricated.
  • Mrs D called B ‘stupid’ and told him she was ‘sick of [his] problems’, he had cost them money because of M, and that his work should come before M.
  • Media Options and Mr D imposed a requirement on B that he take leave at times determined by them.
  • Mr D pressured B to come to work and not to leave until he had finished the tasks allocated to him.
  • Mr D berated B for being late to work and also for not being available to work overtime.
Dismissal not justified

Justice Nicholls noted that prior to mid-July 2005, B had not been counselled about his behaviour, had been afforded flexibility in his working hours and had not been berated for being late to work or for being unavailable to work overtime.

He did not accept Media Option’s argument that B’s dismissal was justified. He explained that ‘inconsistent’ and ‘unsatisfactory’ evidence given by Mr and Mrs D in this regard ‘leaves their position exposed as a series of progressive attempts to justify, and explain, the dismissal’. For instance, the letter of termination, ‘apart from the lack of detail or particularity’, relied on a limited number of allegations to support B’s dismissal, in contrast to what was subsequently alleged in proceedings.

Justice Nicholls ordered Media Option to pay B $81,213.46 as damages for breach of the DDA and the SDA, and $25,000 as interest, for lost income and exacerbation of his pre-existing depressive illness.

B v Media Options Group Pty Ltd & Ors [2013] FCCA 79 (19 April 2013)
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