Refusal of part-time work for employee returning from mat leave held discriminatory

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Refusal of part-time work for employee returning from mat leave held discriminatory

A federal magistrate has held that an employer's refusal to make a reasonable attempt to satisfy an employee's request for part-time work on returning from maternity leave to be discriminatory.

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A federal magistrate has held that an employer's refusal to make a reasonable attempt to satisfy an employee's request for part-time work on returning from maternity leave to be discriminatory.

This case appears to confirm the view of a number of practitioners that although the legislation on maternity leave states that the employer's agreement to part-time work has to be secured, the failure to actively attempt to accommodate an employee who makes such an application could constitute discrimination.

Australian Nuclear Science & Technology Organisation indirectly discriminated against the business development manager when it imposed a condition that she return to her full-time position. This constituted constructive dismissal.

ANSTO unlawfully discriminated against the employee by refusing to extend her three-year individual employment contract by more than 12 months.

Magistrate Driver awarded $40,000 in compensation.

Background

ANSTO engaged the woman under an individual contract in January 1999 - fixed term for three years.

She went on maternity leave in August 2001. In April 2002 she contacted her supervisor stating that she would return to work in September, part-time. The supervisor indicated she wanted her to return full-time. The employee offered a compromise of three days work in the office and two days from home, but the supervisor rejected it.

The Maternity Leave (Commonwealth Employees) Act required the employer to employ the worker in the position she had occupied before taking maternity leave. The federal Sex Discrimination Act was argued as a factor that had to be taken into account.

Decision

Industrial Magistrate Driver stated:

‘The conduct of the respondent to refuse any part-time work was not reasonable... suitable part-time work was available for Ms Mayer. This was different work to that which the applicant had been doing, but It was important work that the applicant was able to do and that needed to be done.

...

'At a minimum, therefore, the respondent should have offered Ms Mayer employment for two days per week for the balance of her contract until 3 January 2003.

'The work that Ms Mayer could have performed part-time would have been discrete project work, rather than the performance of her previous functions. Ms Mayer gave evidence of important projects that she could have assisted on.

...

'[there were]"many projects" that Ms Mayer could work on. In my view, with a little imagination the respondent could, if it had wished to, found useful work for Ms Mayer to do for three days a week until 3 January 2003. ... The respondent's refusal of part-time work for three days per week was not reasonable.

'...It was reasonable for the respondent to refuse Ms Mayer's proposal for job sharing of her role, or for her to work partly from home. ...

'I have ... found that the respondent breached the Sex Discrimination Act by not offering Ms Mayer part-time employment until the expiration of her contract on 3 January 2003. Under the SDA it would not have been reasonable for the respondent to (and it did not purport to) terminate the contract prior to that date. In addition, the respondent had no cause to terminate the contract under the Enterprise Agreement prior the expiration of the contract.

'I have also found that the respondent breached the SDA by denying the applicant a two year extension of her contract from 3 January 2002.

'However, that contract required Ms Mayer to work full-time and, after 3 January 2003, it was reasonable for the respondent to refuse further part-time work, as there is no reliable evidence that ongoing suitable part-time work would have been available. Accordingly, Ms Mayer's contract could have been terminated by the respondent on reasonable notice (that is, three months) with effect from 3 January 2003.

'In other words, the contract could properly have been terminated on 3 April 2003.

'...In the circumstances, it is open to me to determine what payment Ms Mayer is entitled to, in lieu of notice, under the contract. Under the contract, Ms Mayer is entitled to receive payment in lieu of notice from the date notice could lawfully be given. That date was 3 January 2003, not the date of the constructive dismissal (2 September 2002).'

The magistrate noted that the employer offered an apology to the applicant. The question of costs was to be settled later.

See: Mayer v Australian Nuclear Science And Technology Organisation [2002] FMCA 209 (6 August 2003).

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