Pregnancy and race discrimination cost employer $5000

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Pregnancy and race discrimination cost employer $5000

A woman who was refused part-time work on return from maternity leave and told not to speak Arabic on the office telephone has been awarded $5000 in damages by the Equal Opportunity Division of the Administrative Decisions Tribunal.

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A woman who was refused part-time work on return from maternity leave and told not to speak Arabic on the office telephone has been awarded $5000 in damages by the Equal Opportunity Division of the Administrative Decisions Tribunal.

The decision shows how cautious employers need to be in dealing with matters than can subsequently be found to be discriminatory.

Complaints that the woman had also been discriminated against because her request to come back early from maternity leave was refused, that her conditions of employment had been changed, and that the other employees were hostile towards her were dismissed.

Background

Evidence was given that Pascale Tleyji, a former employee of the TravelSpirit Group, saw an advertisement for a part-time senior travel consultant to be based in the company’s Eastwood office while she was on maternity leave and asked to be considered for it. This was refused.

The Eastwood office manager, Lydia Scuglia, claimed she had had Head Office approval to advertise this position, but the position was subsequently withdrawn before being filled on the basis that there was a staff freeze.

When Tleyji subsequently returned to the Eastwood office she again requested part-time work. At a meeting to discuss this request the office manager pointed out that two of the four staff at the office were already part-time and a third part-timer was ‘not feasible’.

Tleyji was then offered two part-time positions in the company’s city office, but she rejected them as not being ‘the same positions which I currently hold with your company in Eastwood’ and would require extra travel.

She then decided to refer the matters complained of to the Anti-Discrimination Board.

Tribunal findings

In evidence before the Tribunal TravelSpirit’s Manager of Business Development Mary Olivieri agreed that at the time Tleyji’s request was considered she had not asked either of the two part-timers whether they would be interested in working full-time, nor had she asked Tleyji whether she might be prepared to work more hours [than she had requested] or job share.

The Tribunal found if Tleyji was to remain in her substantive position as Senior Travel Consultant in the Eastwood office she ‘had no option but to work full-time’.

‘Tleyji’s evidence that she was unable to meet her responsibilities as a carer and work full-time is uncontradicted and accepted by us,’ the Tribunal stated.

‘In our opinion, while TravelSpirit gave some consideration to allowing Tleyji to work part-time, it failed to give full and proper consideration to whether she could perform her role as a Senior Travel Consultant on a part-time basis either under the model she put forward or some variation thereof.

‘For all these reasons we conclude that the requirement was not reasonable in all the circumstances.

‘We are satisfied that TravelSpirit unlawfully discriminated against Tleyji on the ground of carer’s responsibility contrary to section 49V(2)(d) of the Anti Discrimination Act.’

Race discrimination

On the complaint of race discrimination regarding the ban on speaking Arabic in the office, the Tribunal said Tleyji asserts that the speaking of Arabic is a characteristic ‘that appertains to’ her race, namely, Lebanese.

The Tribunal said the background to the alleged directive [that Tleyji not speak Arabic] is:

On 10 June 2004 Tleyji took a call from her sister and spoke in Arabic. The only other people in the office were a fellow worker named Acquaro and Office Manager Scuglia. Tleyji took the call at her desk which was situated in a small open-plan office.

In the course of that call, Tleyji overheard one of her colleagues say ‘how rude’. She thought it was Acquaro. Acquaro admits saying those words, as did Scuglia.

‘It is not in issue that following this call Scuglia told Tleyji she thought it was rude to take calls in Lebanese (sic) and told her in the future to take those calls in the upstairs staffroom,’ the Tribunal found.

‘The only significant factual issue in dispute is whether Scuglia directed or requested Tleyji to do so.

‘Tleyji claims she was directed to take these calls upstairs. That is consistent with Acquaro’s account of what Scuglia had said:

‘'I’m not telling you not to speak Lebanese, just take it upstairs. If you have to have your personal call in Lebanese, take it upstairs.’'

In contrast, Scuglia claims that all she did was issue a request. Her evidence was that she used these words:

‘'I would appreciate it if you would speak in English and not in Lebanese. It makes myself and the staff feel very uncomfortable. I would appreciate it, if you need to speak in Lebanese, by all means take your calls upstairs, where they are personal calls for yourself so that no-one else can hear, and that the staff and myself will not feel uncomfortable with that. I cannot at any stage prohibit you from taking calls and speaking in Lebanese but I would ask common courtesy from you for the rest of the office, if you could please speak in Lebanese upstairs only.’'

Manager of Business Development Olivieri said she told Scuglia ‘we cannot stop her speaking in Lebanese’ and on 21 June Olivieri emailed the staff of Eastwood office and advised that ‘private phone calls are to be brief and kept to an absolute minimum’.

The Tribunal found that following the offending phone call, Scuglia told Tleyji that if she needed to take calls in Arabic she could no longer do so from her desk.

‘While as claimed, Scuglia might have prefaced that instruction with “I cannot prohibit you…” that is in effect what she did,’ the Tribunal ruled.

‘This was more than a gentle suggestion. Scuglia made it abundantly clear that she would no longer tolerate Tleyji’s practice of talking on the phone in Arabic at her desk. While Scuglia did not ban Tleyji from speaking Arabic at work she did stop her from doing so from her desk.’

The Tribunal found the complaint of discrimination on the ground of race substantiated.

Full details of the case can be read here.

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