Refusal to allow

Cases

Refusal to allow

An employer's actions in refusing to allow a woman in a supervisory dental nurse position to return to work on a part-time basis after maternity leave, and to "job-share" that position was found by the Western Australian Equal Opportunity Commission to constitute discrimination based on sex, marital status and family responsibilities

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An employer's actions in refusing to allow a woman in a supervisory dental nurse position to return to work on a part-time basis after maternity leave, and to "job-share" that position was found by the Western Australian Equal Opportunity Commission to constitute discrimination based on sex, marital status and family responsibilities.

What is job-sharing?

Job-sharing is a voluntary arrangement in which two or more people share one full-time job, each working part-time on a regular, continuing basis. It is a form of part-time work that is a viable option in circumstances where a job needs to be performed on a full-time basis but not necessarily by the same person.

While job-sharing will not be suitable for many positions, the decision in Bogle v Metropolitan Health Service Board (No 3 of 1999, 7/1/00), highlights the need for employers to consider carefully employees' requests for flexible work options such as job-sharing to assist them balance their work and family life. Any refusal of such requests should have a sound basis and be on reasonable grounds.

Background

The complainant was a registered dental nurse and had been employed by the Fremantle Dental Clinic for 20 years. For the last 14 years of her employment she worked as charge nurse, that being the second most senior role in the clinic. In 1995 the complainant went on maternity/adoption leave after she adopted her child. She told her supervisor that she intended to come back to her charge nurse position part-time after the period of leave.

When the time came for the complainant to return to work, she sought to return to her position of charge nurse, but to work part-time on a "job-share" basis for a trial period. Senior management of the clinic was not prepared to allow the complainant's return on this basis. They took the view that the charge nurse position had never been and would not be job-shared. It was made clear to the complainant that if she wanted to return to work, it would have to be either to work full-time in the charge nurse position, or if she wished to work part-time she would have to regress to a lower classification level. Various options were put to the complainant within those conditions. She continued to press for a return to her charge nurse position on a job-share basis, but accepted the option to work part-time as a dental nurse.

After a period of four months in this position, the complainant came back to work full-time in the charge nurse position. During that time her husband took leave to care for their child, but when his leave ran out, the complainant found it extremely difficult to manage full-time work and care for her child. She took another period of combined annual leave, leave without pay and sick leave for four months. When she came back she accepted a part-time position as a dental nurse, a position which was eight increments below her charge nurse position and available for only 33 weeks per year.

The complainant made a complaint to the Equal Opportunity Commission alleging that she had been indirectly discriminated against on three alternative grounds: sex, family responsibilities and family status, and marital status.

The employer's position

The Tribunal was satisfied that there was an "historical view" within the employer organisation that supervisory positions could be neither worked part-time nor job-shared. The reasons put forward by the employer for it's refusal to allow a job-share arrangement included the following:

  • detailed written instructions with respect to such matters as supply or IT problems would cause inefficiencies;
  • confusion could be caused where charge nurses viewed managerial problems differently;
  • in service training and staff development would need to be done twice;
  • inconsistency was likely to arise with respect to performance management assessments when done by different charge nurses;
  • training and recruitment costs would be doubled.
Tribunal's view

The Tribunal did not accept the employer's arguments. It found that the conduct and administration of a dental practice relies heavily on comprehensive, accurate note taking and recording of clinical and other information. It also relied on adherence to detailed established procedural protocols. The Tribunal accepted as a matter of common sense the complainant's suggestions that the use of a daily diary and planner in conjunction with goodwill and reasonable cooperation between the persons job-sharing the position would avoid problems of this nature.

The employer conceded that it had made no attempt to quantify any increased costs that might flow from job-sharing, nor was there consideration of any savings that may flow from job-sharing. Any increased costs to the organisation in training two people was likely to be offset against the additional benefits to the employer, the Tribunal said, such as increased flexibility, retention of qualified and experienced staff, and probably lower rates of absenteeism and sick leave.

Question of reasonableness

The Tribunal found that the requirement to work full-time was not reasonable for the following reasons:

  • the initial response of the employer that the charge nurse position could not be job-shared was a "knee-jerk" reaction based on no more than an awareness that it had always been a full-time position and an intuitive feeling that it would not work
  • there was no objective review of the proposal - the employer's consideration of the proposal was merely to justify its stance that it would not work
  • the reasons put forward for rejecting the job-share proposal were vague, ill-considered, superficial and had no objective basis
  • a genuine and fair consideration of the proposal would have led to the conclusion that the particular job-sharing proposal being advanced had considerable advantages which may well (and in the Tribunal's view probably would) have outweighed any disadvantages. There was no reason going to the effective functioning of the organisation why the charge nurse position could not be job-shared, at least on the trial basis that the complainant had asked for.
Remedy

The Tribunal ordered that the complainant be reinstated to the Fremantle Dental Charge Nurse position, and that the employer should approve and implement, either on a trial basis of not less than 12 months, or permanently, the proposal that the Fremantle Dental Charge Nurse position be job-shared. The employer was also required to undertake an evaluation of the job-sharing arrangement with respect to the position in question, and to report to the government equal opportunity authority and the union.

The Tribunal also ordered that the complainant be paid $12,604.52 damages for lost wages and pain and suffering.

 
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