When regulating working hours is discriminatory

By Bruce Heddle.

Key Points:
A prudent employer should consider an employee's particular and personal circumstances when it comes to regulating hours of work.

The Work Choices legislation has created a maximum hours guarantee under the Australian Fair Pay and Conditions Standard. This guarantee provides that a corporate employer cannot require or request an employee to work more than:

• 38 hours a week (averaged over a 12 month period if agreed in writing); plus
• "reasonable additional hours".

Despite this guarantee, it is clear that it does not operate without regard or to the exclusion of existing anti-discrimination laws.

Two recent cases - Banks v Ziranovic, Anderson & Jon Le Court Pty Limited [2006] QADT 43 and Cockin v P & N Beverages Aust Pty Ltd [2006] QADT 42 (13 December 2006) - illustrate the potential for discriminatory conduct when employers act to regulate the hours of its employees without regard to the particular circumstances of its employees.

Background

In Banks, the employee complained of discriminatory conduct when, among other things, her employer refused to reduce her working hours:

• Ms Banks was employed as an apprentice with Jon Le Court Pty Ltd, a hairdressing salon with stores in several locations in Brisbane, between December 2002 and the time of her resignation in April 2004. During this time Ms Banks worked at several salons and worked at the Garden City Salon in the last six months of her employment. In February 2004 Ms Banks confirmed with the manager at the Garden City Salon that she was ten weeks pregnant.
• At the time of confirmation, Ms Banks was a well-regarded employee. In the weeks that followed, the manager gave Ms Banks menial tasks that she had not previously been given, constantly criticised Ms Banks, began chastising her for not selling enough products and harshly treated Ms Banks when she provided a medical certificate explaining her absence for two days.
• The manager also refused to allow Ms Banks to restrict her to an eight hour shift on Thursdays instead of 12 hours despite being provided with a letter from her gynaecologist to the effect that she should not work more than eight hour shifts. Ms Bank’s employer refused her request to shorten her hours at the Garden City store because the salon was "extremely busy" and refused her request to work at two other salons because there were no vacancies at those salons. Ms Banks claimed that she was so depressed about her treatment that she was forced to resign.
• Ms Banks brought a discrimination complaint on the ground of pregnancy.

Member Boddice of the Queensland Anti-Discrimination Tribunal found that the manager had discriminated against Ms Banks when she changed her attitude towards Ms Banks when learning that she was pregnant. He found that the manager's change in attitude meant that Ms Banks was treated less favourably and that this treatment was due to Ms Banks' pregnancy. The Tribunal also found that the employer was vicariously liable for the actions of the manager because it did not take reasonable steps to prevent pregnant women, such as Ms Banks, from being discriminated against. Despite the employer having policies in place regarding discrimination, it did not have any policies specifically dealing with the issue of pregnancy. The Tribunal ordered damages of $7,500 for the embarrassment, hurt and humiliation and $656 for economic loss.

In Cockin, the employee complained of discriminatory conduct when his employer did not offer them enough hours of work:

• Mr Cockin was employed as a cleaner and machine operator by P & N Beverages Aust Pty Ltd. He was employed on a casual basis.
• Amongst other things, Mr Cockin claimed that the number of shifts that were offered to him were reduced following the receipt by P&N of a report by Dr Graeme Edwards dated 5 March 2002 which recommended that because of Mr Cockin's visual impairment he be restricted to day shifts only of not more than 10 hours. Mr Cockin has a significant deficiency of the vision in his left eye.
• After receiving the report of Dr Edwards, apart from one month in May 2002, Mr Cockin's wages diminished notably from June 2002. Mr Cockin was no longer rostered to work particular shifts but was instead called in when needed. Previously, he was allocated a combination of rostered shifts and call-ins.
• Mr Cockin brought a discrimination complaint on the ground of impairment.

Member Rangiah of the Tribunal found that P&N had discriminated against Mr Cockin on the ground of his impairment when it refused or failed to provide him shifts of 10 hours or less. While Mr Cockin was provided with some shifts the Tribunal considered that they were significantly less than what he had enjoyed prior to providing to his employer Dr Edward's report which set out certain work restrictions on his hours of work.

The Tribunal also did not accept P&N's reasons for the decline in shifts offered to Mr Cockin. P&N submitted that there had been a seasonal downturn in work; that Mr Cockin had at some point advised that he was not available to work on the Monday, Tuesday and Wednesday of every second week; that there was less work available for Mr Cockin to do given the constraints of Dr Edwards report; and that two other workers had indicated that they did not want to be rostered on the same shift as Mr Cockin.

The Tribunal was also not prepared to accept that P&N could rely on a health and safety defence in respect of its failure to offer Mr Cockin sufficient shifts of 10 hours or less, although it was prepared to accept the defence could be relied on in the employer's actions to refuse to allow Mr Cockin to continue to work the afternoon and night shifts to protect the health and safety of other workers including the complainant himself.

An order of $4,500 was ordered for economic loss, $3,500 for hurt feelings and $500 for a separate victimisation claim brought by the employee.

Implications

While the operational requirements of an employer are no doubt reasonable factors to take into account when managing work hours, an employer needs to be aware of any discrimination issues which might arise when it seeks to reduce or increase those hours. Both cases in this article illustrate the importance of having regard to the employee's particular and personal circumstances when it comes to regulating hours of work.

Moreover, apart from any industrial considerations, a prudent employer should consider be aware that:

• Discrimination issues can arise on a case-by-case basis when particular employees specifically request for a change in their working hours. In this situation, employers should have careful regard to any supporting documentation to accompany such a request (for example, any medical reports or certificates) and any other oral information provided by the employee.
• Discrimination issues may also unintentionally arise where an employer seeks to engage in across the board changes to the working hours of its workforce. While Banks and Cockin respectively dealt with pregnancy and impairment discrimination, there may be other attributes which an employer should have regard to for example whether any family and carer responsibilities that will impact on employee's capacity to modify their work arrangements without disruption or significant disruption to commitments they need to meet outside of the workplace.

Thanks to Millen Lo and Megan Caristo for their help with this article.

For further information, please contact Bruce Heddle.