Equal Time swine flu by benbenzhou

VIEWS: 4 PAGES: 23

More Info
									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 [2008] 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 [2009] 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 [2009] 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

								
To top