Refusal to grant part-time work after maternity leave held non-discriminatory

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Refusal to grant part-time work after maternity leave held non-discriminatory

A Federal Magistrate has held that an employer’s refusal to grant part-time work to an employee returning from maternity leave did not amount to discrimination.

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12/03

 

A Federal Magistrate has held that an employer’s refusal to grant part-time work to an employee returning from maternity leave did not amount to discrimination.

Although the legislation and awards usually provide that the granting of part-time work after a period of maternity leave is a matter for agreement by both the employer and the employee, the question has persisted that the refusal of such a request by an employer may nevertheless be discriminatory.

Federal Magistrate Raphael found that the employer discriminated against the supervisor when it promoted her to a job in an acting capacity only, after hearing during an interview that she was pregnant, but there was no discrimination involved in refusing the employee’s request to return to part-time work.

She was awarded $7,500 for hurt and humiliation, but no award was made for the alleged discrimination.

Background

The employee had started work with the employer in 1999 as its corporate billing supervisor.

She was promoted to customer service and billing manager after about two years. She then mentioned she was pregnant and was subsequently offered and accepted the job on an acting basis. She went on 40-weeks maternity leave. She sought to fill the management role on a part-time basis on her return-to-work.

Decision

The Federal Magistrate found that the employer was entitled to insist that all management positions were full-time and the employer was consequently not obliged to positively discriminate in favour of the applicant by granting her part-time work:

I think there are clear distinctions to be drawn between the case currently before me and those upon which the applicant relies.

'In Hickie (1998 HREOCA 8), which is the point of departure, the applicant was already working part-time by agreement with the respondent. It was clear that there was then imposed upon her existing situation a number of detriments arising out of the part-time arrangements. ...

'Mayer v ANSTO (2003 FMCA 209) is a case much nearer to the facts of the one before me. There the applicant sought to return to work from maternity leave on a part-time basis... [the respondent] attempts to distinguish between Mayer and the current case.

'...The outcome of the applicant’s approach is that all women can demand the right to work part-time and require employers to create a position for them as a part-time position. The extra component of primary care givers is a "sex plus" criteria and should not be accepted as it is not part of the statutory formulae. In this case, she wanted to dictate her salary as well as her hours of work under the guise of eliminating sex discrimination.

'...With the greatest respect, this is the error that Federal Magistrate Driver in Mayer v ANSTO [2003] FMCA 209 fell into ... [the respondent] argues that there is no discrimination under s5(2) for two reasons. The first is that the demand to work part-time constitutes a form of request for positive discrimination and is therefore not within the compass of the SDA as presently drafted. The second argument rests on the fact that there is no proof of the requisite type that women are disadvantaged in this particular workplace or that the requirement or condition affects persons of their sex generally.

'... Because I have found that Ms Kelly was offered a return to her original employment and because I have found that there was in reality no requirement to work full-time only a refusal to allow a variation of the contract to permit it, I am unable to find any conduct of the respondent which could constitute a constructive dismissal of the applicant. Nor conduct which was otherwise unlawfully discriminatory.'

See: Kelly v TPG Internet Pty Ltd [2003] FMCA 584 (15 December 2003) - Raphael FM.

 

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