Reasonable job requirement is not  discrimination

Cases

Reasonable job requirement is not discrimination

This article examines a recently overturned indirect discrimination case, based on an employer’s failure to provide a computer modem to allow a Hansard reporter to work from home.

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This article examines a recently overturned indirect discrimination case, based on an employer’s failure to provide a computer modem to allow a Hansard reporter to work from home.

Key point:  Equal opportunity legislation requires a tribunal - when deciding whether a work requirement, condition or practice is discriminatory - to determine whether it is reasonable in an objective sense. The legislation is not concerned with modifications that could potentially  be made to accommodate one individual person's special needs.

Detail:The Victorian Court of Appeal allowed an appeal by the Victorian Government against a finding of indirect discrimination based on its failure to provide facilities that would have enabled a Hansard reporter to work from home.

The Victorian Civil and Administrative Tribunal had most recently found in favour of the employee and awarded $160,000 in compensation. This litigation has had a chequered history. Although the employer won a previous appeal, the tribunal applied that appellate decision to still find that the employer’s actions amounted to discrimination based on the reasonableness of the attendance (at work) requirement.

In this latest appeal, Justice Phillips handed down the leading judgement and Justice Buchanan agreed with him. Justice Calloway dissented.

The relevant legislation was the Equal Opportunity Act 1984 (Vic) ss.9, 14. Section 14 reads:

An employer must not discriminate against an employee - (a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment; (b) by dismissing the employee or otherwise terminating his or her employment; (c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program; (d) by subjecting the employee to any other detriment.’

Attendance requirement is reasonable

Justice Phillips found that an attendance at work requirement was reasonable:

‘On the face of it, it seems to me almost inconceivable that the attendance requirement for sub-editors to attend the house on sitting days should be regarded as not reasonable.

There was ample reason, surely, to justify such a requirement or condition which was, after all, a term of the contract of employment when first made. Suffice it to refer, in a summary way, to the pressure of work on all reporters during sitting days… Obviously there was a need for interaction between staff members …’

Justice Phillips did go on to emphasise that that this was not to say that reasonableness should be considered without regard to alternatives: ‘plainly that would be contrary to s9(2)’. But the alternatives must be as efficacious if the mere existence of an alternative was to bear upon the reasonableness of the condition or requirement under attack.’

Dissenting judgement highlights inflexibility

Justice Calloway dissented and stated that the inflexibility of the requirement lay at the heart of this case. He noted that a requirement that Hansard sub-editors work full-time at Parliament House on sitting days could not be unreasonable. However, Justice Calloway said he could not detect an error of law in the Tribunal’s decision.

See: State of Victoria v Schou [2004] VSCA 71 (30 April 2004) – Court of Appeal (Vic).  

Related

Modem discrimination case overturned

REFUSAL TO INSTALL MODEM HELD TO BE DISCRIMINATORY

 

 

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