February 2007 - Discrimination

DISCRIMINATION IN THE WORKPLACE

In a media release made on the 24 January 2007, the Human Rights and Equal Opportunity Commission (HREOC) President John von Doussa, QC stated that employers need to familiarise themselves with their obligations under federal and state anti-discrimination laws, as there has been a 60% increase in workplace complaints to HREOC since WorkChoices.

Given this and the fact that In the last couple of months some interesting decisions under anti-discrimination legislation have been handed down, we thought it would be worthwhile to summarise a couple of the decisions for you.

Cockin v P & N Beverages Aust Pty Ltd & Ors (2006) QADT 42 (13 December 2006)

In this case, a Queensland employee with an eye injury that affected his depth and distance perception filed a discrimination complaint against his employer after his employment was terminated ('Employee'). The Employee's duties regularly involved the use of a cutting instrument and he believed the safest method of performing his duties was with a retractable hook knife. However, as a result of two workplace injuries, one of which was to the Employee, a Memo was circulated banning the use of retractable hook knives in the workplace.

The Employee claimed this was discrimination in relation to his impairment. The Queensland Anti-Discrimination Tribunal ('QADT') ruled out indirect discrimination because it was made clear to the Employee that a safe alternative would be found if he provided a supporting letter from a doctor. The Employee was allowed to use a retractable hook knife after the doctor recommended this in their report. The QADT concluded that the Memo prohibiting the use of retractable hook knifes unless there is medical evidence to the contrary is reasonable and not discriminatory.

The Employee also alleged discrimination stating that after an injury to his hand his employer failed to place him on suitable duties. The Employee alleged that he had been allocated work that was dirty and wet, leading to his injured hand becoming infected. The QADT did not accept these assertions as it saw no medical evidence of the alleged infection. The QADT concluded that it did not amount to direct discrimination as the Employee was given the lightest duties possible. The QADT also ruled out indirect discrimination as the Employee ignored his supervisor's suggestion that he stay home until the injury healed.

The Employee further contended that he was discriminated against as there was a reduction in the amount of work he was offered. The QADT considered the employer's argument that there was a seasonal downturn in work. However, it considered that argument did not hold due to the company employing new staff during this time. The QADT, after comparing the Employee to an employee without the impairment, said that the un-impaired employee would have been offered more work during the relevant period. It found that the employer's refusal/failure to offer the Employee more day shifts during the relevant period other than the limited shifts they did offer was unlawful. The employer was ordered to pay the Employee $8,500 compensation due to reducing his shifts beyond the recommendation of the employee's doctor.

King v Nike Australia Pty Ltd (2007) VCAT 70 (19 January 2007)

In this case, an employee of Nike was successful in her claim that she had been discriminated against on the basis of her parental responsibilities ('Employee').

Prior to the employee's return to work from maternity leave a company restructure was announced which resulted in the role the Employee previously occupied being abolished and replaced by two roles, one senior and one junior. Nike selected two employees to interview for the senior role, one of which was the Employee. The other candidate was successful on the basis that Nike believed the Employee lacked the necessary strategic and commercial acumen to perform the role.

The Tribunal found that the real reason why the Employee was not appointed in the new role was due to the Sales Director's concerns regarding her family responsibilities and his perception of how women who worked from home managed their time. This decision was in part formed on the basis of an email sent by the Sales Director, which although possibly intended to be humorous drew links between the employee's family responsibilities and work performance. The employee was awarded $19,685 compensation.

What does this mean to Employers?

• Ensure that where an employee has an impairment or injury assistance is provided for them to undertake their duties or light duties appointed to them. This should be done in accordance with a medical report setting out restrictions on the types of duties the employee can and cannot do.
• Sometimes there is a thin line between workplace health and safety and discrimination. Employer's need to ensure that systems are reasonable in the circumstances and do not apply indirect discrimination on any employees.
• Ensure that the allocation of hours and shifts to employees is done fairly and without prejudice to particular employees – this is not limited to impaired employees, but employees of a particular sex, religion, sexual preference, age, marital status, those with family responsibilities, etc.
• When deciding which employee is suitable for a position or promotion ensure that the decision is based on their qualifications, experience and the inherent requirements of the position, not a perception of what that person may or may not be able to achieve. Such decisions cannot discriminate against people based on sex, age, marital status, family responsibilities, sexual preference, religion, etc.
• If you have any questions in relation to this Update please contact Lisa Aitken at Aitken Legal.