Family responsibilities discrimination challenge to work roster change

Workplace Directions

In the recent decision of McIntyre v Hastings Deering (Australia) Ltd & Anor [2013] QCAT 695, the Queensland Civil and Administrative Tribunal (QCAT) found that a proposed change in a work roster did not constitute family responsibilities discrimination despite its discriminatory effect.

The Applicant, Nicole McIntyre, was employed as a Health and Safety Advisor with Hastings Deering (the Employer). In proceedings before QCAT, she alleged that she was indirectly discriminated on the basis of family responsibilities under the Anti-Discrimination Act 1991 (Qld) (Act) in respect of a proposed change in work roster. Ms McIntyre also claimed that she was victimised by a company manager as a result of lodging a complaint of family responsibilities discrimination with the Queensland Anti-Discrimination Commission (Commission).

QCAT had previously granted injunctive relief to Ms McIntyre restraining the Employer from changing the work roster as it applied to her at the time she lodged her complaint of family responsibilities indirect discrimination with the Commission.

Background

Ms McIntyre was a single mother with the sole care of her two daughters, who were then aged five and two.

There was provision in Ms McIntyre’s contract of employment for the Employer to alter Ms McIntyre’s roster and work hours for operational reasons with notice. Ms McIntyre had raised her family responsibilities, particularly in relation to hours of work, with an Area Manager of the Employer who interviewed her for the position of Health and Safety Advisor.

Work roster change

Ms McIntyre’s usual work pattern was to work Monday and Friday (7am to 5pm) and Tuesdays to Thursdays (9am to 3.30pm) – with flexible start and finish times – as well as working additional hours to meet operational requirements.

In May 2012, the Employer sought to introduce a change to Ms McIntyre’s working hours by way of introduction of a roster involving two advisors working a rotating roster. The effect of the revised roster would be that an advisor worked in a block of 15 days from 8.30am to 6.30pm, followed by a block of 15 days from 6am to 4pm. This pattern would repeat throughout the year (‘proposed roster’).

Ms McIntyre was required to work the revised hours, despite indicating that she could not do so because of family responsibilities.

Indirect discrimination

QCAT considered each of the three elements of indirect discrimination.

  1. QCAT found that Ms McIntyre could not comply with the relevant term (to work the proposed roster). In this regard, QCAT accepted Ms McIntyre’s evidence of the difficulties in obtaining child care (including nanny service), of having to work the roster change, and further, that the roster allowance to be given for working the proposed roster would not cover the increased costs of child care and she would therefore be unable to meet her financial commitments from what was left of her wage. In addition, the proposed roster would leave her little time with her children.
  2. QCAT accepted that a higher proportion of employees who do not have Ms McIntyre’s family responsibilities would be able to comply with the proposed roster.
  3. However, QCAT determined that the requirement to work the proposed roster was reasonable as there was some logical and understandable basis for the proposed roster, including supporting the growth in staff numbers, better aligning the delivery of services provided by the nurse advisors, and creating a safer work environment.

QCAT stated in this regard that: ‘[t]he proposed roster is not so extreme or ill-suited to the work of the [nurse advisors] at Hastings Deering that it cannot be justified’.

QCAT considered these factors to outweigh the discriminatory effect of the proposed roster, including the fact that it was determined without any workplace consultation or considering the needs of the workers.

QCAT did note, however, that there was insufficient evidence of range, cost and efficacy of alternatives to the proposed roster.

Accordingly the complaint of indirect discrimination was dismissed, as well as the complaint of victimisation.

Authored by Sudhir Sivarajah, Senior Associate, Sydney.


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