Refusal to install modem held to be discriminatory

Cases

Refusal to install modem held to be discriminatory

HRLink Issue No: 89/00 Employers need to factor in the inherent requirements of a job, the nature of the position and an employee's personal circumstances prior to refusing requests to work from home.

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HRLink Issue No: 89/00

Employers need to factor in the inherent requirements of a job, the nature of the position and an employee's personal circumstances prior to refusing requests to work from home. The Victorian Civil and Administrative Tribunal has awarded $161,307 to an employee whose employer refused install a modem at the employee's home to enable the employee to work from home. This refusal was held to amount to indirect discrimination on the basis of status as a parent and/or carer. 

The decision in Schou v State of Victoria (Department of Victorian Parliamentary Debates), No. 177 of 1998, VCAT, 20 April 2000, which was initially mentioned in HR Link 88/2000, was also significant in that the Tribunal held that the employer's eleven week delay in installing the modem amounted to a refusal to facilitate the reasonable request (in the circumstances) to work from home. 

The complainant lodged a complaint with the Equal Opportunity Commission on 28 October 1997. The complaint related to a claim of discrimination in the area of employment on the grounds of industrial activity, parental and carer status. In August 1998, the complaint was referred to the Anti-Discrimination list of the Victorian Civil and Administrative Tribunal. The matter was heard in December 1999. In general, the complaints consisted of a series of claims relating to conduct prior to 1 January 1996, which were alleged to have breached the Equal Opportunity Act 1984; and a series of claims relating to conduct after 1 January 1996, which were alleged to have breached the Equal Opportunity Act 1995

Background

Employed by the Victorian Department of Parliamentary Debates, the complainant commenced employment in 1979 as a trainee Parliamentary Hansard reporter. By June 1993 she had advanced to become a Parliamentary sub-editor for Hansard, a position she held until her resignation in November 1996. The complainant reported to two Assistant Chief Reporters who in turn answered to the head of Department - the Chief Reporter.

 It was claimed that the Department directly and/or indirectly discriminated against the complainant on the basis of her possessing the status of parent or carer and/or directly discriminated against her in the area of employment on the basis of her possessing the attribute of industrial activity.

Throughout 1996, the complainant found it increasingly difficult to cope with the competing responsibilities as a sub-editor and as a parent. The evidence revealed that in February 1996, the complainant informed the Department that due to the ill health of her second child she wanted to work part-time. In response to her request, she was told to prepare proposals for part-time work options.

The Department and the complainant came to an agreement on or about 20 August 1996 that her competing responsibilities could be addressed through the installation of a modem and fax machine, thereby allowing the complainant to maintain full-time responsibilities as a sub-editor working from home via a modem on Thursdays and Fridays. Whilst this proposal was agreed to by the Chief Reporter, it had not been implemented some eleven weeks later when the complainant resigned on 1 November 1996.

There was no evidence before the Tribunal to explain why, eleven weeks after the modem proposal was initially accepted, it had not been implemented. The evidence of the Department was that the modem proposal had not been implemented because the parliamentary IT department was busy. The evidence suggested that a modem could have been installed to allow the complainant to satisfy full-time work requirements by working part-time at her home and part-time on site at Parliament House. The cost to the Department was estimated to be between two and two and a half thousand dollars. It was held that the modem proposal was an effective solution to the responsibility dilemma, and was a solution well within the means of the Department.

The Tribunal was of the view that management's intentions to implement the modem proposal did not survive past September 1996. It was also concluded, that based upon the evidence, the Department appeared to be well aware of the critical situation confronting the complainant, wherein if the modem proposal was not implemented within a reasonable time, the complainant was likely to resign.

Pursuant to the tests outlined in s9(1)(b) of the 1995 Act, the Tribunal found that a higher proportion of people who are not parents could comply with the Department's requirement that employee's be present at work full-time. Another and unrelated test outlined in s9(1)(c) related to the reasonableness of the requirement. The Tribunal was satisfied that the requirement that the complainant be physically present at work full-time was unreasonable. Therefore, the requirement to be present full-time at work was discriminatory in regard to the complainant's obligations as a parent and/or carer. The Tribunal was convinced that by imposing such a requirement the Department: 

  1. denied or limited the complainant's access to employment benefits under the Parliamentary Officers Employment Agreement;

  2. subjected the complainant to a detriment in that she had to unreasonably choose between the obligations of her job and her obligations as a parent and/or carer. 

The Tribunal was confused as to why the modem proposal was not implemented. The evidence ultimately supported the conclusions that the complainant was required to work full-time and be a carer, and it was reasonable for the Department to alleviate that pressure through the 'modem proposal'. The time delay in implementing that proposal was sufficient in the circumstances for the Tribunal to be satisfied on all of the evidence that the delay amounted to a failure or refusal to implement the modem proposal.

 Relief

On the question of relief the complainant claimed that she had suffered loss and damage in relation to reputation, opportunities to further her professional standing; lost earnings, and injury to feelings. The question of the appropriate relief was then listed for further hearing.

On 20 July 2000, the Tribunal handed a decision in relation to the relevant compensation. The Department was ordered to pay the former employee $161 307.40. Compensation was made up of:

  • $119,868.00 for loss of income as a sub-editor, for income that would have been earned over the period from her resignation to the end of April 2000, less the amount of income earned in alternate employment over that period;

  • $36,439.40 for loss of superannuation entitlements to the end of April 2000; and

  • $5,000.00 for economic loss resulting from her loss of the opportunity to be considered for the position of Chief Reporter.

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