VIEWS: 4 PAGES: 23 POSTED ON: 7/30/2010
Equal Time swine flu
Equal Time Summer 2008 page 1 of 23 Equal Time Newsletter of the Anti-Discrimination Board of NSW Number 75 Autumn 2009 Contents Harmonisation of state and federal anti-discrimination law .............................................................. 2 National anti-discrimination law internet gateway launched ............................................................. 6 Advertisements Must Not Discriminate ............................................................................................ 7 Unlawful to discriminate against people with swine flu ..................................................................... 8 Time to speak up ............................................................................................................................. 9 Community outreach ...................................................................................................................... 14 Conciliations................................................................................................................................... 16 ADB Complaints Finalised ............................................................................................................. 18 Legal developments ....................................................................................................................... 19 New ADB Workplace Relations Consultant appointed ................................................................... 22 The Anti-Discrimination Board of NSW .......................................................................................... 23 Equal Time Summer 2008 page 2 of 23 From the President Harmonisation of state and federal anti-discrimination law Extracts from a speech by by Stepan Kerkyasharian AM, President of the Anti Discrimination Board of NSW at the Australian Corporate Lawyers Association (NSW Division) Annual Symposium for In-House Counsel on 25 March 2009 Race Discrimination You may be interested to know that, last year, in NSW, complaints of discrimination based on race amounted to almost a fifth of all claims lodged at the NSW Anti-Discrimination Board. Of those race discrimination complaints, almost a quarter are by Indigenous persons. This means that approximately one in twenty discrimination complaints in NSW concern race discrimination against indigenous people. The Board’s Aboriginal and Torres Strait Islander Outreach Team compared the complaint statistics with the percentage of indigenous people in the NSW population, and discovered that Indigenous people lodge claims of discrimination at twice the rate that would be expected as a percentage of the population as a whole. At the same time, anecdotal evidence reported to the Outreach team indicate that many acts of discrimination against indigenous persons are never reported. This is a worrying aspect. I am very proud of the work done by the Board’s Aboriginal and Torres Strait Islander Outreach Team. Currently they are researching the impact of superannuation requirements on indigenous persons. Why? Because recent data show that although 90% of non-indigenous people live longer than 55 years, and therefore receive the benefits of their superannuation, almost 50% of indigenous people die before they reach retirement age. It’s a sobering thought. I understand that you all provide the invaluable assistance of the in-house counsel for your organisation. Where would most organisations be without their multi-skilled in-house counsel? Not only are in-house counsel adept in many areas of law, they also possess the facility to quickly acquire, digest and utilize relevant knowledge from outside their specialist field. To this end, I propose to give you a quick sketch of current developments in anti-discrimination law at both the Australian, and NSW, levels. ‘Harmonisation’ I say ‘Australian’, rather than ‘Federal’, as I am not talking about changes only at the Federal level. The big changes which are coming to anti-discrimination law will be as a result of the work of all Equal Time Summer 2008 page 3 of 23 the States and Territories in consultation with the federal government – a process known as ‘Harmonisation’. Harmonisation of our State and Federal laws was initiated, to my understanding, by the NSW Attorney-General. It is a priority for the Standing Commitee of Attorneys General, and one which I wholeheartedly support. But where to start? In anti-discrimination law, each of the jurisdictions has laws with different names, a different structure, different grounds, different procedures, and different decision-making bodies. Under some legislation, an application in the wrong jurisdiction precludes an application in the correct jurisdiction, leaving the applicant without a remedy! There is a Harmonisation Working Group specializing in anti-discrimination law. I am a Member, as is a representative from each of the Australian jurisdictions. The Harmonisation Working Group has set a three stage plan for reform, starting with the least contentious, least costly, and least difficult matters. The three stages correspond to short, medium, and long term goals. Stage 1 addresses inconsistencies in access to complaint handling mechanisms under each of the State, Territory and Federal Acts. The Working Group is identifying and progressing non- legislative options with the objective of enhancing access by individuals and businesses to complaint handling procedures in all jurisdictions. Stage 1 is already underway, looking at websites, discussion boards, portals and the like. Stage 2 aims to identify options for reform in the medium term. The Harmonisation Working Group will undertake a needs analysis to identify potential areas for minor legislative and procedural reforms that could lead to significantly improved harmonisation. This will identify any barriers to the reform process, and the resources required to implement the proposed reforms. This might cover areas such as time limits, remedies, and joint complaint handling by overlapping jurisdictions. Stage 2 might also lead to a unified procedure and/or decision making, in relation to exemption applications. Currently, an organization which operates across Australia and seeks an exemption from anti-discrimination law, must apply in each jurisdiction, with different forms, procedures, decision-making bodies, and, worst of all, possibly differing outcomes, so that the same conduct may potentially be allowed in one jurisdiction, yet subject to penalties in another. Stage 3 will identify longer term options for reform. The Harmonisation Working Group will examine opportunities and obstacles in relation to substantive changes to legislation, procedure, ad institutional and/or cooperative arrangements. This, of course, is the area of the greatest potential disagreement. No State would like to see anti-discrimination coverage reduced, but some States are currently firmly against the inclusion of certain grounds. For example, in NSW, there is currently no basis for a claim of discrimination based on religion. The recent case of in the NSW Administrative Decisions Tribunal, confirms that this is so. People within NSW can only succeed in a claim if the discrimination is also based on another ground, such as ethnicity. Equal Time Summer 2008 page 4 of 23 So those are the three stages identified for short, medium, and long term changes to Australian anti-discrimination law. Recent amendments Recent amendments to the NSW bring in four major changes. The first is a significant increase in the amount of damages which can be awarded by the NSW Administrative Decisions Tribunal as compensation for unlawful discrimination, from $40,000 to $100,000. The second change relates to representation in the NSW Administrative Decisions Tribunal. It is now the law that any party, whether or not a corporation, must have leave from the Tribunal for representation by an agent. The third issue addressed in the reforms was the power of the NSW Administrative Decisions Tribunal to award costs. The NSW now sets out factors which the NSW Administrative Decisions Tribunal must consider when awarding costs. Previously, the Tribunal could only award costs in ‘special circumstances’: a rather narrow category. The fourth major change relates to applications for exemptions from the NSW Act. The process for an application under s126A remains unchanged. However, applications for exemptions under s126.now have a different process. Section 126 exemption decisions, previously made by the Minister, on the advice of the Anti- Discrimination Board, are now made by the President of the ADB; if necessary the president may consult relevant people. I must make the decisions within 60 days, wheres previously there was no time limit. Most importantly, an application for a review of the decision can be made to the Administrative Decisions Tribunal of NSW by an ‘affected party’. An ‘affected party’ may be the person who applied for the decision, or a person who is otherwise directly affected by the decision. The reforms bring the processes for review of decisions of the ADB more in line with current views of best practice in administrative law. I also draw your attention to the fact that sex discrimination in NSW now also includes discrimination on the ground of breastfeeding; and that discrimination based on marital status now extends to an additional ground of discrimination based on domestic status, a reform aimed at including same sex couples. Federal Bill Of Rights The last issue I would like to discus with you today is the proposal for a Federal Bill Of Rights. Will this make a difference in the area of Anti-Discrimination law? Of course. Any rights included will need to be recognized across Australia in each and every jurisdiction: which is where the Harmonisation Working Group comes in. But what should those rights be? For example, should we protect from racial vilification? If so, should a person be liable for a fine; for a claim for Equal Time Summer 2008 page 5 of 23 compensation; for a criminal conviction? Currently, our Australian jurisdictions differ in the answer to each of these questions. There is no easy answer. These are complex moral and philosophical questions, of fundamental importance. They are significant issues which require public discussion. Equal Time Summer 2008 page 6 of 23 National anti-discrimination law internet gateway launched The standing Committee of Attorneys General has launched an internet-based national anti- discrimination law information gateway (www.antidiscrimination.gov.au). The purpose of the gateway is to give the public a single point of entry to each of the Commonwealth, State and Territory anti-discrimination authorities. Individuals and businesses will will find it easier to access information on how to make and respond to discrimination complaints. Funded by the Commonwealth, the gateway was developed in cooperation with the States and Territories. Equal Time Summer 2008 page 7 of 23 ADB media release — Gruen Transfer mock advertisments Advertisements Must Not Discriminate ‘Advertisements, and material published on the internet, are covered by the laws against discrimination’, the President of the NSW Anti-Discrimination Board, Stepan Kerkyasharian, said today. In NSW it is against the law to discriminate on the basis of race, sex, homosexuality or ethno- religious background. ‘It is also against the law to vilify people or groups’, said Mr Kerkyasharian. Public acts which incite hatred, contempt, or ridicule of people because of their race, homosexuality, or transgender, can amount to vilification. ‘Vilification is a serious offence, because it involves contempt, ridicule or hatred. Vilification can lead to orders for compensation of up to $100,000. If the vilification also involves threats of physical harm, people can be fined up to $5,500, or sent to prison for six months, or both’, said Mr Kerkyasharian. These laws are part of a program that seeks to eliminate discrimination in NSW. For example, you will be protected if you are discriminated against because of a characteristic of a relative, friend or work colleague. And if you speak up about discrimination against yourself or another person, you are protected from retaliation by the laws on victimisation. Most discrimination complaints are because someone believes they have been treated unfairly, harassed, or victimised, when seeking employment, accommodation or goods and services. The Anti-Discrimination Board investigates discrimination complaints, and tries to resolve any problems by agreement. If people can’t agree, the result will be decided independently by the Administrative Decisions Tribunal, which can make orders for compensation of up to $100,000. Equal Time Summer 2008 page 8 of 23 ADB media release Unlawful to discriminate against people with swine flu Swine Flu is an infectious disease, and is covered by the laws relating to discrimination on the ground of a disability. ‘These laws were made in the era of HIV and the worldwide AIDS epidemic, but are relevant to any infectious disease,’ said Mr Kerkyasharian. ‘People with swine flu have enough to worry about, without the added stress of disability discrimination’, he added. Mr Kerkyasharian said NSW’s discrimination laws would also protect a person treated unfairly because others suspected they might contract swine flu. ‘You are also protected if someone is discriminating against you because your relative, friend or work colleague has swine flu. And if you speak up about discrimination against yourself or another person, you are protected from retaliation by the laws on victimisation’, Mr Kerkyasharian said. Most discrimination complaints are because someone believes they have been treated unfairly, harassed, or victimised, when seeking employment, accommodation, or goods and services. The Anti-Discrimination Board investigates discrimination complaints, and tries to resolve any problems by agreement. If people can’t agree, the result will be decided independently by the Administrative Decisions Tribunal, which can make orders for compensation of up to $100,000. The Anti-Discrimination Board has more information available at www.lawlink.nsw.gov.au/adb or through its enquiries line 1800 670 812. Equal Time Summer 2008 page 9 of 23 Time to speak up There are many reasons why people don’t speak up when they have a workplace problem: they are embarrassed; they don’t know who to speak to; they think it might be just them. One of the most common reasons people give is that the problem is with someone more senior. They fear that no one will believe them or, worse still, that they will be victimised. Sometimes, these fears are well-founded, and based on their own or colleagues’ past experiences. When this happens, it’s a tragedy for them AND their employer. Individuals can carry emotional and psychological scars for many years and there are many sound financial benefits to an organisation in ensuring that their employees can be confident of management support in resolving issues quickly and fairly. A number of recent decisions show that the courts and tribunals are prepared to listen to employees who are relatively powerless: perhaps because they are very young, or suffering stress. They have not been impressed when an employer has taken advantage of an employee’s vulnerability or lack of bargaining power. Underpaid In one case a 16 year old complained that her employer underpaid young employees.1 The company continued underpaying, despite being notified that it had breached the pre-Work Choices industrial agreement and the Workplace Relations Act. The Federal Magistrate noted that all affected employees were either juniors or young adults (three were 15 year olds) and were inexperienced, many being in their first job. They were, he said, vulnerable and at risk of exploitation. This was taken into account when the when the company was ordered to pay a $49,500 penalty under the WorkChoices regime. Unimpressed A trainee neurosurgeon claimed that she had been sexually harassed by the head of her team at Monash Medical Centre.2 She gave evidence that she had gone to his room, at his invitation, to go over some of her training. While in the room, he had suddenly approached her from behind and physically molested her. She told the tribunal that she had cried ‘how could you!’ and ran from the room. The subject of these allegations was a leading neurosurgeon. He denied that the incident had occurred, claiming Ms Tan had made up her complaint because her performance had been unsatisfactory and she needed an excuse to claim special consideration in her final assessment. Ms Tan had, in fact failed her last assessment and would not, therefore, be allowed to become a neurosurgeon. He called, as witnesses, the Chairman of the Board of Neurosurgery, and a number of other senior professors, doctors and nurses. The judge commented that none of them took her claim of harassment seriously. Equal Time Summer 2008 page 10 of 23 The judge, however, found the young woman to be the more credible witness and noted that she had been terribly affected. Her complaint was consistent with all the evidence and ‘had the ring of truth about it’. The judge found that it was more probable than not that the sexual harassment had occurred in the manner Ms Tan had described. The judge found that the neurosurgeon had exploited his position of power over her and her vulnerability because of her performance. He was a highly regarded neurosurgeon and was able to determine her future career prospects. He knew that, in the eyes of their peers, he would be believed, not her, and had deliberately set out to smear her character. The trainee was awarded $100,000 in damages. Under stress The complainant, a manager and IT programmer/analyst had stepped down from the position after taking stress leave.3 His replacement was a very poor people manager the complainant and another employee complained. After an independent investigation, she was found guilty of bullying. She was warned and underwent remedial training. The investigator described her behaviour as acceptable and of ‘considerable gravity’. The complainant was later dismissed by the manager ‘for operational reasons’. He claimed it was an unfair dismissal. The Australian Industrial Relations Commission upheld the claim. It found that he had been dismissed because of his had complaint, not for genuine operational reasons. The Commissioner stated that the manager had undue influence in the decision to dismiss him and was motivated by prejudice and antagonism. The Commission found the dismissal especially harsh because of the complainant’s long service and the bullying and harassment he had been subjected to. It said that even if the restructure had been necessary, a new job within Council could have been provided. Unwelcome A gay male social work student claimed that he had been sexually harassed by a female tutor. 4 The tutor had told him he had ‘really nice eyes’ and had invited him for coffee. She asked if they could be friends and ‘insisted’ that they have lunch. At lunch, she asked him if he would have a tattoo with her and invited him to see a movie with her. He accepted because, he said, he was so taken aback. He later wrote her an email, however, saying they couldn’t be friends and asking her to leave him alone. The tutor emailed demanding better reasons for turning her down. He replied that he would complain that he was being sexually harassed if she persisted. He complained, but his complaint was dismissed. The Queensland Anti-discrimination Commission refused to accept the case and it was dismissed by the Federal Magistrates Court. The court found that the tutor’s behaviour did not amount to unwelcome sexual advances or conduct of a sexual nature. The Federal Court found, however, that the tutor’s conduct could amount to sexual harassment because she wanted to form a relationship with him. It said that persistent personal invitations, in Equal Time Summer 2008 page 11 of 23 conjunction with other acts, could amount to sexual harassment. So too could aggressive conduct following a rejection be conduct of a sexual nature. The case was referred back to the Federal Magistrate for hearing. Underwhelmed The treatment of a nightshift employee by two others eventually led to their dismissal.5 Mr Z. was taunted by Mr F. with racial and religious insults. He was overweight and Mr F. frequently poked him in the stomach, using his size to intimidate him. Mr B. laughed while Mr Z. felt embarrassed, intimidated, humiliated, excluded and ‘ganged up on’. Mr B. and Mr F. claimed their dismissals were unfair and their behaviour just ‘friendly banter’ in the workplace. The Australian Industrial Relations Commission disagreed. The Commissioner claimed the comments were inappropriate in any workplace, insulting and disparaging. She didn’t think they were ‘just joking’. Mr F’s dismissal was upheld. While the Commissioner found that Mr B.’s laughing was harassment, however, she felt that dismissal was too harsh a penalty. Mr B. was not reinstated, but received about five weeks pay as compensation for his unfair dismissal. Uncalled-for A school leaver and apprentice was repeatedly subjected to sexualised jokes, comments and physical contact (such as genital grabbing) on front of others.6 The perpetrator was his boss. The apprentice put up with this for three years, not even telling his family. When action was taken against him, the employer denied the allegations and brought witnesses to support him. He said he couldn’t be guilty because he wasn’t homosexual and that the apprentice would have complained sooner if the complaints were true. At the trial, it came out that the ‘witnesses’ were not even at work when the alleged incidents took place. A former employee, however, did see what happened. He said that the employer seemed to think he was joking, but it was obvious that the apprentice did not. The apprentice explained that he hadn’t done anything about the behaviour because he had no one to complain to. His tormentor was his employer and no one else seemed to think it was a problem. The tribunal stated that the employer had used simulated sex acts to dominate and ridicule the apprentice. It also found the employer’s evidence was ‘exaggerated or inaccurate and overall unreliable.’ It said that the fact that the apprentice put up with the behaviour was understandable because he was a young man who felt victimised and isolated. It awarded him $35,000. Equal Time Summer 2008 page 12 of 23 6 Thomas v Alexiou  VCAT 2264, 31/10/08 Equal Time Summer 2008 page 13 of 23 Anti-Discrimination Board of NSW Seminars 2009 The ADB’s seminar series is a leading training program designed to keep you up to date with the latest trends in workplace relations. Case law update Managing diversity in the workplace Grievance handling skills Grievance management and resolution skills Implementing EEO Harassment and bullying prevention Recruitment and termination Skills training for Contact Officers Working with disability Equal Time Summer 2008 page 14 of 23 Community outreach Community Radio Projects Gabe Morahan, Community Education Officer has been working in partnership with various agencies to support them in the delivery of clear and accessible information about the on community radio. Gabe has been working in partnership with Adol Takpiny, the Sudanese Community Liaison Officer from the NSW Attorney General’s Department to provide the Sudanese community with culturally appropriate education in relation to the Anti-Discrimination Act and the role of the Anti- Discrimination Board. After initial consultations with the Sudanese Community and the Radio Sudan Committee it has been agreed that the Anti-Discrimination Board will record a 20–30 minute segment which will be broadcast to the Sudanese Community in plain English as well as Dinka and Sudanese Arabic. The information will include the areas covered by the Act and how to make a complaint if you think you have been discriminated against. Gabe is also working in partnership with Claire Portors, Project Officer from the Women’s Health at Work Program through Sydney West Area Health to target the Sierra Leone community with accessible information about the Anti-Discrimination Board and its function. Information regarding the role of the ADB, how to make a complaint and grounds covered under the Anti-Discrimination Act will be recorded and broadcast on the the Sierra Leone Community Radio station. This information will also be translated. Creating a safer community for gay, lesbian, bisexual and transgender people Launched in December 2007, the Working Together Strategic Framework is the NSW Government’s policy to prevent violence against gay, lesbian, bisexual and transgender people. The document it is a whole-of-government policy committed to addressing prejudice related violence and creating safer environments for gay, lesbian, bisexual and transgender (GLBT) people. The NSW Government recognises that prejudice-related violence against GLBT people is an unacceptable. The framework has been designed to guide new projects, assist with communication and enhance collaboration between key stakeholders. The ‘You shouldn’t have to hide to be safe’ report provided the evidence base to inform the strategic directions and key priority areas in the strategic framework. The central fundamentals of Working Together are in line with current NSW Government policies, in particular the NSW State Plan and the Anti Discrimination Act NSW 1977. Equal Time Summer 2008 page 15 of 23 Working Together will build on successful initiatives, already aimed at reducing the incidence and impact of prejudice related violence, such as the NSW Police Force Gay and Lesbian Liaison Officer Program and the NSW Attorney General’s Department GLBT Strategic Responses to Violence Grants Program. Working Together is the result of a strong partnership between the NSW Government and the GLBT community. The Anti-Discrimination Board strongly supports any action that increases awareness of violence against GLBT people and promotes anti-discrimination and anti- homophobic messages within and outside of the workplace. A support website has also been launched. Visit the website to find out more information at www.safetypartnership.nsw.gov.au World Aids Day Recent studies indicate that HIV infection rates in Australia are gradually increasing – highlighting the need to remind people that HIV/AIDS is a serious problem that continues to pose challenges in Australia, not just overseas. The first of December 2008, marked the 20th anniversary of World Aids Day. It was in 1988 that the World Health Organization (WHO) declared the first World AIDS Day. They promoted it in an attempt to increase public awareness about a range of HIV/AIDS issues but also ensuring they focused on people’s need for support and understanding when they are living with HIV/AIDS. In 2008 individuals and organisations in 190 countries came together to raise community awareness about HIV/AIDS issues. On 1 December 2008, The AGD’s Crime Prevention Division, NSW Police Force, City of Sydney and ACON collaborated to plan a World AIDS Day event in Sydney’s Taylor Square North, Darlinghurst. The Anti-Discrimination Board was invited to attend the event and help with engaging the local residential and business community and Gabe Morahan, the Community Education Officer participated in the day. The day comprised of speeches, entertainment and the provision of a barbecue, and tea and coffee as well as the selling of the red ribbon. In addition to being a symbol of commitment to challenge the stigma and prejudice surrounding HIV/AIDS, the red ribbon is a way of declaring support to those living with HIV/AIDS and those who have died. All money raised through the sale of red ribbons on World AIDS Day (and during AIDS Awareness Week) goes towards support services such as medical, counselling, support and peer education services. Working Together: Preventing violence against gay, lesbian, bisexual and transgender people has also just launched a new standalone website. Visit the website to find out more information about this policy at www.safetypartnership.nsw.gov.au Equal Time Summer 2008 page 16 of 23 Anti Discrimination Board Conciliations Disability Discrimination A woman employed as a casual bar attendant alleged that her employer unlawfully terminated her employment. After she had been absent from work for a number of weeks due to vertigo, she maintained she was told her employment was terminated because her condition rendered her a liability. The woman had provided medical certificates advising that she was unfit for work for the duration of her absence. In refuting the allegation her employer asserted that she had been advised on numerous occasions that she would need to provide a medical certificate clearing her for a resumption of duties. However this was not provided until after her complaint had been lodged with the Board. Her employer asserted that she remained an employee and that she had misconstrued the conversation with the licensee. The woman asserted that the licensee advised her that she could not resume duties until she had been certified by her GP as medically fit to return to work otherwise she was a liability to her employer. The woman maintained that she could no longer work for the respondent. The matter was resolved when the woman accepted an offer of $2,000 in settlement of her claim. Disability discrimination A fitter machinist alleged that his employer unlawfully terminated his employment when he was made redundant after returning to work following a period of time off to recuperate from emergency heart surgery. The employer refuted this asserting that the global financial crisis had had an immediate effect upon its operations with a reduction and cancellation of orders in the process operated by the complainant. This process involved manual machining of small and specialist orders. The employer asserted that the complainant was one of the employees selected for redundancy because his skills did not include CNC machining. The complainant agreed that he did not have skills in this area. The complainant accepted a payment of $3,500 in settlement of his complaint. Sexual harassment, sex discrimination and victimisation A female worker alleged that, during a work lunch, her male co-worker had played a video clip on his mobile phone that contained strong sexual references. She claimed that the same colleague had made comments about her physique, asked her personal questions of a sexual nature, and on one occasion had touched her body, which humiliated her and made her feel extremely uncomfortable. The woman complained to the company’s management but was not satisfied with their response. She complained to the Board about sexual harassment and sex discrimination. The man denied sexual harassment or touching the woman in the way she described. The company told the Board that it conducted an investigation into the incidents, but concluded that the man’s actions were not calculated or intended to be offensive. It provided details of its code of Equal Time Summer 2008 page 17 of 23 conduct, which was designed to prevent harassment and discrimination in the workplace. After discussions with the woman, the company moved her to a different work location so she would not come into contact with the male co-worker again. Following these incidents, the woman claimed she was victimised by her manager. She claimed that, because she had made a discrimination complaint, she was subjected to detrimental treatment at work. She lodged a further complaint with the Board, claiming she was required to work directly in front of the manager’s office, then moved from place to place. She alleged she was required to share a desk, which was not the company’s usual practice, and that she did not always have access to a computer and phone, which she required to perform her job. The Board held a conciliation conference between the woman and her employer. The male co- worker also attended, but remained in a separate room, as the woman did not want him present, and the Board’s officers helped the parties to discuss the complaint and reach an agreement to resolve it. Both the company and the male co-worker apologised to the woman and she received a financial settlement, without any admission of liability by either respondent. The company also agreed it would ensure that the woman would be provided with the resources she needed to perform her work in the future. Disability discrimination The complainant has Parkinson’s disease, which makes him unsteady of hand when writing. He alleged that the registered club of which he is a member, unlawfully discriminated against him on the ground of disability when it failed to cancel his TAB bet allegedly causing him to lose a substantial amount of money. The man stated that he often unintentionally makes mistakes when completing his betting card because of his shaking hand. He said that in the past the club had always assisted him by cancelling unintended bets before the start of each race. The man said that on this occasion the person with authority to cancel the bet would not attend to him and therefore the unintended bet proceeded. The Club denied any unlawful discrimination. It asserted that the person on the TAB system on the day with authority to cancel a bet was busy when the complainant had tendered his betting ticket. The person who took the complainant’s bet did not have the requisite authority to cancel the bet and was unable to cancel the bet before the commencement of the race. The matter was resolved when the complainant accepted a payment of the difference between his intended and unintended bet. Equal Time Summer 2008 page 18 of 23 ADB Complaints Finalised Complaints closed between 1 July 2008 and 30 April 2009 932 complaints closed since 1 July 2008 62% (575) closed within 6 months of receipt of complaint 90% (843) closed within 12 months of receipt of complaint 99% (921) closed within 18 months of receipt of complaint 1% (11) longer than 18 months. Equal Time Summer 2008 page 19 of 23 Legal developments Hospital victimises nurse The NSW Administrative Decisions Tribunal has found that a public hospital victimised a nurse in the latest episode of a long-running case. The Tribunal found that St Joseph’s Hospital in Auburn Sydney victimised the nurse by trying to teach her a lesson by rostering her for shifts in a psychiatric ward after she made an internal discrimination complaint. The ruling appears to establish that victimisation can be based on alleged discrimination even if the allegations of discrimination are found not to be unlawful. Ms Correy worked as an enrolled nurse in the palliative care ward of St Joseph’s Hospital for ten years before going on maternity leave. During her leave, the nurse manager had appointed a permanent full time nurse to work in the palliative care unit. Upon her return from leave, Ms Correy asked to work reduced hours and was rostered onto various other wards. Ms Correy reluctantly accepted this but asked the hospital not to roster her onto the Psychiatric ward. She had had a previous history of domestic violence and working on a locked ward made her physically sick. Rather than accommodating her disability the hospital continued to roster her on to the Psychiatric ward and told her that she could ‘take it or leave it’. Ms Correy left, but later claimed that she had been discriminated against on the ground of her carer’s responsibilities and that rostering her on to the psych Unit amounted to victimisation. In the first stage of the case in 2007 the full bench of the Tribunal found that the hospital had discriminated against the nurse because of her caring responsibilities and her gender. It also held that St Josephs had victimised the nurse by rostering her in aged care psychiatry because she had made and persisted with her claim that it was discriminating against her. The bench awarded the nurse $26,000 in damages for economic loss. However the tribunal’s appeal panel last year overturned the 2007 ruling, quashing the discrimination finding and the damages payout and sending the victimisation finding back to the bench to be heard and decided again. On remittal, the original full bench decided that the hospital had victimised the nurse when it tried to teach her a lesson by rostering her to work in the psychiatric ward. The bench found that the hospital’s director of nursing signed off on the roster directing the nurse to work in the psychiatric unit ‘’on the ground’ that she had made and persisted with complaints of discrimination’. The hospital had repudiated her contract by its rostering actions knowing that it would lead to her refusing to work, and when it breached an implied term by victimising her. Equal Time Summer 2008 page 20 of 23 The bench ordered the hospital to pay $23,665 in damages for the nurse’s economic loss. Correy v St Jospehs Hospital Ltd  NSWADT 40 (25 February 2009) Apprentice abused for being pregnant The Queensland Anti-Discrimination Tribunal has found that an apprentice hairdresser was effectively forced to resign because of her employer’s abusive reaction to her pregnancy. The owner of the Barber’s Kut had previously told the woman he would sack her if she became pregnant and when she requested leave to attend an antenatal doctor’s appointment refused her request and verbally abused her during two telephone conversations. The owner gave evidence that he was typically generous over leave and a senior staff member said she had never seen him refuse time off for a medical appointment, leading Member Rooney to infer that ‘in refusing her the opportunity to attend that appointment, and in addition subjecting her to personal abuse in the two conversations which occurred on 30 October, he treated her differently because of her pregnancy than he would have treated any other staff member who was required to attend a medical appointment. In effect, he was presenting her with a choice between keeping her job, being subjected to abuse and missing an important medical appointment which could not easily be moved to another more suitable date on the one hand, or leaving her job to avoid that abuse and attending her medical appointment on the other’. The owner gave evidence that he was joking when he said that he would sack anyone who became pregnant. The Tribunal found the apprentice took the comments seriously and that she had chosen to resign because ‘she regarded herself as mistreated because of the fact that she had become pregnant and because of her employer’s disapproval of that’. The Tribunal awarded her $5000 compensation plus $562 interest with a further $5373 plus $537 interest for economic loss as well as costs. Roberts v King  QADT 3 (20 February 2009) Could shift rostering be discriminatory? Employers in NSW should be aware that the Anti-Discrimination Act covers persons with disabilities in employment. Employers must provide reasonable accommodation to do the job unless this creates unjustifiable hardship to do so. In a recent Federal Court case, a nurse who had epilepsy was rostered to work a split shift despite telling his Manager that he could not do so because of his illness. The nurse felt tired as a result of the effect of his epilepsy medication. The nurse’s preference in the preliminary roster was for afternoon shifts only for the four-week period. In the second week of Equal Time Summer 2008 page 21 of 23 the final roster he was allocated a night shift beginning Sunday, a night shift beginning Tuesday, a 10-hour day shift on Thursday and a night shift on Friday. After meeting with the Manager he advised he couldn’t do the day shift as it disrupted his sleeping pattern and she agreed the roster be altered to put him on night shift. When he went to work that week he found a note from the Manager saying he would have to work the day shift. He resigned giving 14 days notice but subsequently had a fit and hit his head. He then provided a Doctors Certificate stating that he was unfit for work for three months. The Manager denied being formally notified of the nurse’s disability and the need for accommodation. The Federal Magistrates Court of Australia held that Manly Hospital had made a requirement of the nurse that he could not comply with because of his illness and its roster directions were unreasonable having regard to the circumstances. This was indirect disability discrimination under the Act. The court awarded the nurse $15,000 in compensation. The nurse did not seek reinstatement. (Rawcliffe v Northern Sydney Central Coast Area Health Service & Ors [FMCA 931, 9/7/07]) Equal Time Summer 2008 page 22 of 23 New ADB Workplace Relations Consultant appointed Duncan McKenzie has been appointed as a Workplace Relations Consultant based in the Newcastle office. Duncan has worked in sales, media and the human resources sector. Most recently, Duncan has worked for six years in the recruitment industry providing recruitment services to companies in both the private and public sector. He has worked both as a recruitment consultant, assisting companies in sourcing and selecting staff, and as a Client Services Manager, ensuring high standards of service delivery are met. This work involved business development and delivering training programs and information sessions on recruitment best practice, job market trends and rights and responsibilities in relation to EEO and anti-discrimination. He has experience in developing and delivering training and seminar programs for people at all levels within organisations from management to new recruits. He holds a Certificate in Human Resource Consulting and is a Member of the Recruitment Services Association. Duncan can be contacted on (02) 4927 8476 (Mon to Fri) to discuss your organisations training needs in the Newcastle area. Equal Time Summer 2008 page 23 of 23 The Anti-Discrimination Board of NSW What types of discrimination do we deal with? Grounds Areas Where we are
"Equal Time swine flu"