Complainant 252020 v The Australian Capital Territory as Represented By Environment, Planning and Sustainable Development Directorate (Discrimination)
[2021] ACAT 53
•24 June 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMPLAINANT 252020 v THE AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY ENVIRONMENT, PLANNING AND SUSTAINABLE DEVELOPMENT DIRECTORATE (Discrimination) [2021] ACAT 53
DT 25/2020
Catchwords: DISCRIMINATION – direct discrimination – indirect discrimination – unfavourable treatment based on parent, family, carer and kinship responsibility – allegations of being denied part-time working hours and denied ‘meaningful and challenging’ tasks – application to strike out – disputed facts
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 32, 39, 47
Discrimination Act 1991 ss 7, 8, 18
Human Rights Commission Act 2005 ss 7, 8, 53A, 53CA, 53E
Cases Cited:Andreopoulos v University of Canberra [2020] ACAT 95
Australian Capital Territory v Wang [2019] ACAT 65
Cheluvappa v University of Canberra [2018] ACAT 108
Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64
Cooley v Australian National University [2007] ACTDT 2
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Jamieson Mary v Australian Workers Union and Anor [1999] VCAT 268
Kidman v Casino Canberra LtdACN 051 204 114 [2020] ACAT 50
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
TGD v Australian National University [2019] ACAT 81
The State Electricity Commission Board v Rabel [1998] 1 VR 102
Tribunal: Senior Member K Katavic
Member P Hatami
Date of Orders: 24 June 2021
Date of Reasons for Decision: 24 June 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 25/2020
BETWEEN:
COMPLAINANT 252020
Applicant
AND:
THE AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY ENVIRONMENT, PLANNING AND SUSTAINABLE DEVELOPMENT DIRECTORATE
Respondent
TRIBUNAL:Senior Member K Katavic
Member P Hatami
DATE:24 June 2021
ORDER
The Tribunal orders that:
The respondent’s application for interim or other orders is dismissed.
The application is dismissed.
………………………………..
Senior Member K Katavic
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
The applicant was a single mother of two school aged children at the time of the complaint and employed on a temporary full-time contract with an ACT Government directorate. This discrimination complaint is brought against her former employer the ACT Government (Environment, Planning and Sustainable Development Directorate (EPSDD)) and relates to discrimination in employment – an area of public life.
The applicant made a discrimination complaint to the ACT Human Rights Commission (the Commission) on 28 June 2019. The complaint was conciliated by the Commission without resolution. The Commission closed the complaint under section 78(1)(f) of the Human Rights Commission Act 2005 (HRC Act) however, at the applicant’s request, the Commission referred the complaint to the tribunal under section 53A of the HRC Act. That referral confers jurisdiction on the tribunal to hear and decide the complaint, and if the tribunal finds unlawful discrimination, to make remedial orders under section 53E of the HRC Act.
Background and the claim
The applicant claims that she was discriminated against in the course of her employment in the following ways:
(a)Denied part-time hours – refused her request to work part-time hours to accommodate her parenting and caring responsibilities.
(b)Denied meaningful and challenging work – refused to give her challenging and meaningful work because the respondent was of the erroneous view that her parenting and caring responsibilities prevented her from undertaking such work after hours.
The applicant claims that the conduct described above was unfavourable treatment because of her parenting and carer responsibilities.
The applicant has brought her complaint against the ACT Government directorate who it is submitted is vicariously liable for the conduct of their agent Ms Vanessa Morris – the applicant’s direct supervisor.
The applicant’s contract with the respondent commenced on 29 January 2019 and ended on 28 July 2019.
The applicant took unpaid leave from her permanent job with the Commonwealth public service to take up the temporary contract with the respondent. She submitted evidence which indicates that she took a pay cut to take on this temporary role with the respondent.
The applicant asserts that the respondent’s unwillingness to allow her to work part-time hours affected her ability to provide care for her children and participate in her children’s school community. This in turn impacted her family life, her mental health and wellness and impacted her son’s behaviour. She also asserts that her inability to access challenging and meaningful work limited her professional development.
She asserts that the experience overall caused her pre-existing mental health condition of anxiety to deteriorate and caused her to experience high levels of stress, powerlessness, lack of confidence and sleeplessness.
The applicant seeks the following orders:
(a)Financial compensation of $3,000 calculated on the basis of the difference between her take home earnings over the six-month period she worked with respondent and her permanent position with the Commonwealth public service.
(b)That the respondent make a public apology to her and not repeat the discriminatory behaviour in the future.
(c)That the respondent declare that they will accommodate genuine part-time hours for parents in the future as per the Enterprise Agreement.
The hearing
At the hearing, the applicant relied upon the complaint to the Commission[1] and her timeline of events and written submissions.[2] The applicant also relied upon her own witness statement dated 18 September 2020[3] and a witness statement of Ms Melinda Schwartz – Inspector (EL1) in the Australian Border Force, Australian Government dated 24 August 2020.[4]
[1] Exhibit A1
[2] Dated 3 August 2020
[3] Exhibit A1: applicant’s witness statement dated 18 September 2020
[4] Exhibit A2: witness statement of Melinda Schwarz dated 24 August 2020
The respondent relied upon the following:
(a)An email exchange between the applicant and Ms Morris.[5]
(b)Applicant’s record of attendance for the duration of the employment.[6]
(c)Witness statement of Ms Vanessa Morris – Director, Building Policy, Environment, Planning and Sustainable Development Directorate dated 9 October 2020.[7]
(d)Witness statement of Dr Erin Brady – Deputy Director-General, Land Strategy & Environment, Environment Planning and Sustainable Development Directorate dated 9 October 2020.[8]
[5] Exhibit R1
[6] Exhibit R3
[7] Exhibit R2
[8] Exhibit R4
All of the witnesses gave oral evidence before the Tribunal and were cross-examined.
The applicant’s case
The applicant’s complaint relates to two key incidents. The first incident occurred after she had been offered the job but prior to her starting work with the respondent. The applicant says that she sought part-time working hours to accommodate her parental and carer responsibilities and her request was denied by the respondent in circumstances which she alleges were unreasonable given the type of work and the workload she was assigned.
The first incident of alleged discrimination originates in an email exchange which occurred between the applicant and her direct supervisor, Ms Vanessa Morris. The email correspondence was submitted to the tribunal by the applicant as an annexure to her submissions and by the respondent as an exhibit entered into evidence at the hearing. The exchange commenced on 12 December 2018 with an offer of employment:
I am writing to confirm that you will be offered a temporary position at ASO 6 level for six months. You will receive a formal letter of offer when I provide Shared Services with an expected start date. Please note that this date can be changed if you need to.
You mentioned the week after the Australia Day long weekend as a possible start time for you. I can provide Tuesday 29 January as your notional start date to get the process started, but if you would prefer another date please let me know. A start date later in that week is not ideal as I’m likely to be out of the office for a couple of days.
The exchange that followed confirmed the starting date for the applicant, the arrangements she would put in place to take on this role (leave without pay from her former employer) and a brief discussion about when the contract of employment would be sent to the applicant.
On 16 January 2019 the applicant wrote to Ms Morris in an email as follows:
I still have not receive[d] the contract. Are you able to confirm which pay scale I will be on, ie at the bottom of the ASO6, or one that will be roughly be in-line with my current salary at Home Affairs? Also, how much scope is there to work part-time hours? I currently work [nine] day fortnights, but noting the current staffing levels and workloads, I am happy to work 5 days a week, with two early finishes for school pick-up.
On 17 January 2019 Ms Morris replied as follows:
There was a mistake with the contract and it will need to be reissued. I expect it will be sent to you next week.
I don’t know what your current salary is but the job here is quite different to the one you have been doing and so you will be on the starting increment of the ASO6 level.
The position is full-time (36.75 hrs per week) and there isn’t really scope to reduce this or have a reduced number of days per fortnight, but we don’t generally have set attendance hours so I’m happy to discuss how you want to set up your week so you can make up your hours and do your school pick-ups. We can do that when you start.
On 18 January 2019 the applicant replied as follows:
Thanks for letting me know how things are progressing with the contract.
I am happy to do full-time hours, with the need to finish early once a fortnight on a Thursday for my children’s sports. I will need to have Friday 1 Feb and Monday 4 Feb off as I don’t have care for my children those days. Will that be an issue?
In her complaint to the ACT Human Rights Commission, the applicant says that she accepted the job on a full-time basis “fearing that I would be declined the job offer if I did not agree to working full-time.”
The second incident of alleged discrimination relates to the type of work the applicant was assigned during the course of her employment. The applicant says that she was not assigned challenging and meaningful work which would help to develop her skills. She articulates this ground in her complaint to the ACT Human Rights Commission in the following terms:
On another occasion, I asked for more work and I was told that my parenting responsibilities were the reason I was not given any meaningful work because I “could not work until 7pm”. I told my manager that I can work late on certain nights, and she just needs to ask, however, to this day, I have not been asked to assist with any tasks. In fact, my workload has been steadily declining. …. Since that conversation.
…
Despite asking multiple times over the months for more work, including more challenging work, I have been denied these opportunities. I believe that my status as a single parent has led to continued discrimination from my manager.
In describing how she was impacted by the alleged treatment, the applicant, in her complaint to the ACT Human Rights Commission, asserted that:
As a result of being denied variable working hours, I have been in constantly ‘making up’ hours for the days that I have had to finish early. I have had to do this on other days, either when I have my children, or when I don’t have them.
The inability to access variable working hours has affected my children as we now spend very little time together of an evening and my eldest son’s behaviour has been affected. My pre-existing mental health condition (anxiety) has been significantly aggravated and I have been suffering from increasing levels of poor sleep, stressing about how I can prove to my manager that I can work full-time, care for two young children and a household as a single parent. I have felt powerless and in a constant state of mental distress in trying to meet my obligations on various fronts.
I feel that my family circumstances have led to my manager denying tasking me with meaningful work and excluding me from meetings. Subsequently, I have not been able to develop my skills or demonstrate on my CV any complete tangible outcomes during my six-month tenure with the ACT Government. This has led to damage to my career because of my inability to demonstrate recent policy experience, which is critical in a competitive public service employment market. Furthermore, I believe that my skills have degraded over the six months due to lack of use. My mental health has suffered greatly and I have lost confidence in my ability to do the job at the required level, thus creating a vicious cycle.
…
I have been reluctant to disclose any further family matters, which has included a recent month-long matter with Child and Youth Protection Services in relation to my children while in the care of their father. During this time, I was distressed and unable to concentrate on my work, but fearing further retribution and discrimination from my manager, I did not mention the matter to anyone in the workplace.
Through her complaint to the ACT Human Rights Commission, her submissions to this Tribunal and her oral evidence at hearing, the applicant alleges that she suffered a detriment as a direct result of the respondent’s actions.
The detriment which the applicant alleges resulted from both the first and second incidents outlined above (the respondent’s decision not to allow her to work part-time hours and alleged refusal to provide her with challenging and meaningful work) can be summarised as follows:
(a)Working full-time meant that she was unable to spend meaningful time with her children.
(b)Working full-time affected her children’s behaviour, in particular the behaviour of her eldest son who she says became withdrawn, frustrated and angry because the applicant’s meaningful time with him was reduced as a direct result of the respondent’s requirement that she work full-time hours.
(c)Working full-time meant that she was unable to spend time with her children and assist them with after school homework.
(d)Working full-time meant that her children had to stay in after-school care more than she believed was in the best interest of her family.
(e)Working full-time meant that she was unable to make connections with the school community.
(f)The lack of any meaningful work resulted in the deterioration of her skills. She was unable to develop professionally during the six month contract and was unable to achieve any meaningful accomplishments in the competitive field of government policy.
(g)As a consequence of all of the above, her own pre-existing mental health issues were exacerbated and she experienced loss of self-esteem and she says “loss of enjoyment of life relating to the care and enjoyment of my family”.
The applicant also alleges that the respondent is in breach of the Public Sector Management Act 1994 (PSM Act) and:
robbed me of my “right to work in an environment free from work bullying, discrimination and harassment and to be treated with dignity and respect…
According to Ms Morris in January 2019, the workload of the section was such that required the incumbent to work “full-time (36.75 hrs per week) and there isn’t really scope to reduce this:, however, as outlined above, I was denied meaningful and challenging work based on my parenting responsibilities. …
On 16 January 2019, I requested part-time hours as I had parenting responsibilities. Ms Morris did reply within the legislated timeframe, however, her reasons for the decision to decline my access to part-time hours did not provide a significantly justifiable reason, only her interpretation of business needs, stating “there isn’t really scope to reduce this or have a reduced number of days per fortnight”.
While I was able to work “flexible hours”, as is everyone in the ACT public service, as outlined above, it is against the EA to work beyond a standard day, in this case, 7 hours and 25 minutes unless there is a business requirement to do so. As there wasn’t a business requirement for me to work past the standard working hours, I struggled to “make up [my] hours and do school pick-ups”.
Ms Morris was clearly in breach of the EA, under several clauses.
Mr Power and Ms Brady were made aware of the discrimination and abhorrent behaviour of Ms Morris yet they failed to act as part of their duty of care, as stated under clause A2.18 [of the PSM Act]. Ms Brady was made aware of the discrimination and bullying behaviour, yet failed to undertake to “investigate the concerns as soon as possible in accordance with the Workplace Values and Behaviours provisions in Section H of this Agreement”
In her oral submissions the applicant referred to sexual harassment in the workplace and articulated that, in many workplaces, discrimination is as prevalent as, and is comparable to, sexual harassment.
The applicant said that the goal of her complaint was to bring about change in workplaces so that employees can request part-time work hours without fear of discrimination and retribution.
During cross examination the applicant elaborated on her complaint in relation to the pay scale that she was offered by the respondent, asserting that she had both experience and qualifications that justified paying her at the same level as she was paid in her Commonwealth Government role.
In relation to challenging and meaningful work, the applicant said that she wanted to work for the respondent because she wanted to work directly to issues that impacted the community, and she was aware that the respondent was at that time dealing with a raft of reforms and she was not given any meaningful work in relation to these reforms. She said that she had been prepared to work after 5pm on some occasions but was never asked. She believed that her direct supervisor Ms Morris had formed a view that her parental responsibilities precluded her from working after 5pm. That this view was a conscious bias towards her by the respondent.
The applicant asserted that it was difficult for her to meet her obligation to work a full-time 36.75 hour week because there was insufficient work for her to do after hours and her work was not time sensitive so did not justify working late in order to meet the shortfall from one early finish per fortnight, amounting to two hours and 20 minutes.
The applicant has submitted that the work she was assigned was neither time sensitive nor challenging and therefore the respondent’s condition or requirement that she work full-time was unreasonable. She also submitted that the respondent’s requirement that she work flexible hours to make up the shortfall from one early finish per fortnight caused her undue distress because it was difficult for her to justify working late when the nature of the work she had been assigned did not warrant this.
Evidence of Ms Melinda Schwarz
In her witness statement Ms Schwarz said that the applicant was “guarded and behaved defensively” when she commenced work in Ms Schwartz’s team after finishing her 6-month contract with the respondent. She said that she interpreted this behaviour to mean that the applicant did not trust her. Ms Schwartz said that after approximately six months the applicant started to relax but appeared to be “triggered” if spoken to in relation to “developing productive working relationships”.
Ms Schwartz said that the applicant told her about her experience with the respondent and became distressed and emotional when discussing this. Ms Schwartz said that the applicant mentioned “bullying and aggressive behaviour, not being provided with work and therefore deskilling”. She said that the applicant had claimed that her colleagues with the respondent had been fearful due to Ms Morris’ “inappropriate and aggressive behaviour and favouritism of staff”.
Ms Schwartz says that, in her opinion, the applicant’s experience with the respondent had made her “defensive” and it will take time for the applicant to “trust others within the work environment”.
Ms Schwartz gave oral evidence by phone to this Tribunal on 16 December 2020. In her oral evidence Ms Schwartz said that she had been a manager for fifteen years, currently managed a team of 45 people and had experience working with employees who had been bullied in their workplace.
Based on her experience, and with the benefit of hindsight, Ms Schwartz formed the view that the applicant was mistrustful when she commenced working with Ms Schwartz because she had had negative experiences in her workplace. This view was consistent with her previous experience of employees who had had negative experiences in their workplace, however, with time, the applicant became more trusting of Ms Schwartz. Ms Schwartz also stated that there had been no problems with the applicant’s performance once she had “come out of her shell and that trust started to build”. She found the work produced was of a “high calibre”.
The respondent’s case
In relation to first issue, dispute over part-time working conditions, the respondent submitted that:
(a)Ms Morris, at that time, had very little interaction with the applicant and had no knowledge of her background (her parental responsibilities).
(b)At the time of interview there was nothing mentioned in relation to her private commitments or any request made in relation to these.
(c)The applicant was not an employee at the time that she made the inquiry for part-time hours and was therefore not covered by the enterprise agreement.
(d)Counsel said at hearing:
Where she asked of a scope. Without even being given a response she says, “I am happy to work five days a week”. When a response is given she reiterates, “I’m happy to work five days a week at least as long as I have some flexibility.”
The answer from Ms Morris was at that time, “Of course you will have flexibility. That is not a problem”.[9]
(e)That the respondent afforded the applicant flexibility throughout the course of her employment and her leave was always granted. That the applicant was able to work whatever hours she wanted.
[9] Transcript of proceedings dated 16 December 2020 at page 15, line 25
Through written submissions counsel made the following claims:
(a)The core of the complaint appears to involve allegations that the respondent engaged in indirect discrimination, meaning that a condition or requirement was imposed on her to the effect that, in order to obtain meaningful work, she would need to work past 5pm, and that, as a person with parenting responsibilities, she had less ability than a person without those responsibilities to comply with that condition or requirement.
(b)The respondent refutes the applicant’s claims that, prior to signing the employment contract, she “requested variable hours (i.e. part-time) to accommodate [her] parental responsibilities”.
The respondent submitted in their written submissions that the offer of employment to the applicant was made in the following circumstances:
(a)The applicant inquired about the scope to work part-time hours, but made no formal request that the position formally be offered on a part-time basis.
(b)The applicant was offered general flexibility within the terms and conditions of the full-time position to make up her hours and to do school pick-ups.
(c)The applicant stated that she was happy with those terms and conditions.
(d)The applicant accepted the position on those terms and conditions.
The respondent denied that the applicant had made any request to perform the duties of her position on a part-time basis. The respondent also denied that it had imposed a condition or requirement on the applicant that she perform the duties of the position on a full-time basis.
The respondent went on to say that, even if the applicant was denied a request to work part-time hours by the respondent, this did not amount to unfavourable treatment because the applicant was offered flexibility within the terms and conditions of the full-time position to make up her hours and do her school pick-ups, and the applicant subsequently accepted the position on that basis.
The respondent asserted that the applicant had accepted the role on a full-time basis and had not raised any concerns with the respondent regarding her capacity to manage her work and family life within the flexible full-time work arrangement that she had been offered and she had accepted.
The respondent denied that the applicant had requested more challenging work and denied that Ms Morris had said that she could not give the applicant more challenging and meaningful work because the applicant could not work until 7pm.
The respondent said that Ms Morris had, on at least one occasion, made general comments to the team that it would not be reasonable to ask anyone to stay back and handle last minute urgent requests as she was aware her team all had other obligations and responsibilities outside of the workplace.
Evidence of Ms Vanessa Morris
Ms Morris provided the Tribunal with evidence through her witness statement dated 9 October 2020 and gave oral evidence at the hearing on 17 December 2020. She said in her witness statement that she has been in her current role for 10 years and had been a public servant since 2005 in various State, Territory and Commonwealth government roles. She said that she has experience managing people with diverse attributes including disabilities and family responsibilities and she has never had a complaint made about her in the past.
Ms Morris said that, in her application for the role, the applicant did not indicate that she had been working part-time in her previous role and required similar hours in her role with the respondent. She said that during the interview the applicant was informed that the work of the Building Policy Team was to assist Ms Morris with completing reforms under the ACT Government’s building regulatory reform program, which ranged from education and communication work to major policy and legislative reform.
Ms Morris said that the selection panel determined that the applicant had relevant experience in operational policy and administration and limited experience in developing complex policy and analysis and overseeing legislative drafting. The decision to offer the applicant the lowest salary increment in the ASO 6 level was a collective decision made by the panel based on her skills and experience as they related to the role with the respondent.
Ms Morris said that when she called the applicant on 12 December 2018 and offered her the job, the applicant at that time did not raise with her the request for part-time work. However, the applicant and Ms Morris did discuss the temporary nature of the contract, and Ms Morris said that she advised the applicant to take leave from her permanent Commonwealth Government role, rather than resign, because the respondent could not guarantee further employment at the end of the 6-month contract.
Ms Morris said that the email exchange that occurred on the 16 January 2019 regarding the scope for part-time hours was regarded by her as a general inquiry, and that she responded to it accordingly. She did not view it as a request for part-time working arrangements. Ms Morris said that the applicant did not raise this issue with her again throughout her six months of employment with the respondent.
106. At no time before or after [the applicant] started with EPSDD did she request, or apply for part-time hours, or changes in her contracted hours, including after the conversation with [the applicant] and I had on 4 July 2019. [the applicant] also did not initiate any conversation with me after she had started about the potential for reducing her contracted hours.
In relation to the request for part-time hours, the Tribunal asked Ms Morris how she would expect a request for part-time hours to be made by a prospective employee after they had been offered employment but prior to commencing. Ms Morris said that she would expect the request to be made in writing. Once she had received such a request she would:
Look at what they were specifically requesting and the reasons they were requesting that and whether that could be accommodated or whether that was…something that would need special consideration, because there are a lot of different reasons why people may be seeking something and some might be a personal preference, some may be for very specific responsibilities and reasons. So it would depend on what was put before me, but you would consider that quite carefully.[10]
[10] Transcript of proceedings 17 December 2020 page 157-8
Ms Morris said that she allocated work to the applicant with the view of helping her to build her knowledge in relation to Building policy and reform and she assigned her with work that the applicant showed an interest in, being a web portal.
Ms Morris said that she did not allocate the applicant with work such as ministerial correspondence because she did not view this as work that was challenging to the applicant or work that would help to develop her skills, given the applicant had “a great deal of experience in writing letters”.
Ms Morris said that on more than one occasion she said to her team, and to the applicant, that she did not expect them to work the late hours that she did and was conscious of not passing on the stress of the high workload to the rest of her team. She said in her witness statement that:[11]
57. I told [the applicant] that often things come in late and that I didn’t expect that other people would work the hours I did or regularly stay back late until 7pm as I often did. I said that I had chosen to work those hours as a senior officer but didn’t think other Team members, particularly those that weren’t senior officers, should be under the same pressure I was. I said that it was my responsibility to protect my Team from that kind of pressure and I can’t and won’t put stress on them to work those hours, particularly if they have children to care for. This was a reference not only to the requirements of the agency agreement but the health and safety of staff.
58. [The applicant] said she could stay back sometimes, and I said that it wasn’t the point. I pointed out there was no way to know when things would come in and what they would be about and that some things I couldn’t give to her for short turnaround as she did not have the subject matter knowledge. It would have been unfair to require someone to stay back in those circumstances.
…
62. At no point in the conversation did we discuss ‘meaningful’ work, only volume of work and [the applicant’s] views on how things should be allocated and managed. Although it was a very frustrating conversation for me, I did not raise my voice to [the applicant] or subject her to any form of bullying, abuse or unreasonable comments. While [the applicant] was standing, including quite close to me at one point, I remained seated.[12]
[11] This was not put to the applicant for comment.
[12] Witness statement of Ms Vanessa Morris dated 9 October 2020 at [57], [58], [62]
Ms Morris said that she met with the applicant to discuss her draft performance plan and ‘task diversification’. She said that the draft plan, which we assume was prepared by the applicant, included some of the work she had identified to be allocated to the applicant, including work that she had already commenced working on. However, the plan did not include any additional suggestions for other reforms or project the applicant was interested in working on. Ms Morris and the applicant discussed the plan and Ms Morris said that the applicant seemed interested in the work she was allocated, including some she had already commenced working on. When Ms Morris suggested other projects which had a legislative component, the applicant allegedly said that she was not interested in “legislative work”.[13]
[13] This was not put to the applicant for response.
Ms Morris said that, in the part of the plan entitled “short-medium term development needs”, the applicant had included “Potentially apply for permanent employment in EPSDD”. She had not included any training, education or professional development needs and wants. When asked whether she wanted training, she indicated that she was interested in undertaking the mandatory training developed for EPSDD, and Ms Morris agreed to approve the training as it became available in the training calendar.[14]
[14] This was not put to the Applicant for response.
Through her witness statement Ms Morris gave examples of the type and variety of work that the applicant undertook during her employment with the respondent:
126. Work during that period between 13 April and 21 June 2019 included: development of approved licensing forms and operational policy for licensing renewal eligibility checks; drafting supporting educational materials based on ACT licensing law; researching and drafting information sheets on rights and obligations that were intended for mandatory provision to people when signing a contract for new building work or buying residential property off the plan and ongoing research in relation to major licensing reforms. This work related to four separate reforms in the building regulatory reform program (reforms 13,14, 22 and 35). I reallocated work in relation to information accompanying a contract from Ms Clark to [the applicant], to broaden the scope of work [the applicant] was involved in beyond licensing and because the applicant had complementary skills that would benefit the work.
127. [The applicant] was also tasked with other short term work, including: work in relation to hearings for an Assembly Inquiry related to our portfolio in conjunction with Ms Buckley; researching and preparing advice to the Minister on specific issue he was interested in; and work to assist with finalising a statutory appointment. [The applicant] seemed amenable to this work and completed it as requested.
128 The Applicant also asked about doing a specific additional administrative task to help with setting up public consultation sessions we were running on two draft technical documents, and I agreed to it.
129. Not all of the work related to reforms 22 and 35 was completed at the time that [the applicant] left EPSDD, and in the case of the longer research piece, the Applicant had decided not to include a whole range of licences without asking me. I found this out in late June when I asked [the applicant] if she had completed the research and was on track to complete the summary for the discussion paper before she left in July.
130. I gave [the applicant] the web portal work because she had expressed an interest in the work. From a skills perspective other officers in the Team were more qualified to do the work but I recognised that [the applicant] had been doing research through other jurisdiction’s websites and our own website and could offer a fresh perspective. It would also help her build her knowledge and relationships with EPSDD.[15]
[15] Witness statement of Ms Vanessa Morris dated 9 October 2020 at [126]-[130]
In her witness statement Ms Morris said that she had several team members who were also balancing family responsibilities with work. She says that:
99. At no time did I base the type of work I allocated to people on whether they had children or family responsibilities. I also did not assign policy and project work based on whether people worked past 5pm and did not tell [the applicant] or any other Team member that they would not be assigned ‘meaningful’ work unless they did.
100. I allocated work based on a range of factors including the skills, knowledge and experience of Team members, development opportunities, relative priorities, workload of individual officers and equity across similar positions. Where possible I would also try to accommodate the personal preferences, but this was not always possible.
101. Over the course of [the applicant’s] contract I approved all leave [the applicant] applied for, and her use of flex time, where required for her to care for her children, and for other purposes.
102. In relation to parenting matters, [the applicant] did not appear to actively conceal those matters from me. I was aware of a particular potential legal matter as [the applicant] discussed it with other Team members while I was present. I did not ask her directly about the matter because that was her private business and I knew that if she needed anything from me she would ask directly in person or by email as she had previously.
103. I did not remove work from [the applicant] or deny her particular types of work because I knew this personal information about her.[16]
[16] Witness statement of Ms Vanessa Morris dated 9 October 2020 at [99]-[103]
Ms Morris said that she had spoken with the applicant about her leave and how she wanted to manage it and had agreed to approving the leave that the applicant requested. Ms Morris attached to her witness statement applications for personal leave which were approved on 20 June 2019 and 4 July 2019.
Ms Morris says that in her applications for leave the applicant inserted comments. The comments are apparent on the leave application requests which were submitted into evidence. In her leave application the applicant states “Using personal leave due to not being able to access part-time working hours”.
Ms Morris says that when she approached the applicant about these comments the applicant openly acknowledged that she had not asked for part-time hours but refused to remove the notes. This was not put to the applicant for response at the hearing.
Ms Morris says that there then ensued a conversation about the working arrangements of other employees and the applicant was again critical of Ms Morris’ management style. This was not put to the applicant for response at hearing.
Ms Morris said that the applicant met with her direct supervisor Mr Power, and later with the Deputy Director General Dr Brady, to raise her views about Ms Morris’ management issues.
Ms Morris said that the applicant had approached Ms Morris’ manager Mr Power and said to him words to the effect that she was “not going without a fight” and that if we thought that she would “we” would “find out”. Again, none of this was put to the applicant at hearing and Mr Power was unable to give evidence at hearing.
Ms Morris said that at no point during her employment did the applicant allege that she was being discriminated against by the respondent or the respondent’s agents.
In her witness statement Ms Morris said, that in relation to the applicant’s claim, that she felt discriminated against or fearful of Ms Morris:[17]
93. I did not witness [the applicant] acting, speaking or behaving in any way that would have indicated that she was fearful of me or afraid to tell me things or ask for things she needed. She criticised me to my face and to other members of the Team, to my supervisor and a senior executive, and had no qualms about approaching senior executives.
94. To my knowledge [the applicant] did not make a formal complaint about me within EPSDD.
134. I was not aware of the full extent of [the applicant’s] behaviour and the effect on other Team members until after she had left EPSDD’s employment. Shortly after [the applicant] left EPSDD, two Team members told me that [the applicant] would take every available opportunity when I wasn’t present to criticise me and my management of the Team, and this escalated after [the applicant] had been told her contract was not going to be extended.[18]
[17] No evidence in relation to the two other ‘team members’ was offered to the Tribunal to review.
[18] Witness statement of Ms Vanessa Morris dated 9 October 2020 at [93], [94], [134]
In relation to flexible time, Ms Morris says that the applicant was given the flexibility to arrange her day and work times to balance her other obligations, including leaving early to manage her caring responsibilities and working beyond the standard workday to balance her timesheet. She said that she never queried the applicant’s time arrangements, nor the need for the applicant to work from home on occasion, and always approved applications for leave. Ms Morris said that the applicant’s worksheets usually balanced out and she therefore had no concerns regarding her flexible working arrangements.
The evidence submitted to the tribunal to corroborate this consist of email exchanges between the applicant and Ms Morris. There are numerous emails that span discussions about work and requests for leave.
In relation to the applicant’s pre-existing mental health issues, Ms Morris said in her witness statement that:
104. While [the applicant] did mention other medical issues to me, at no time before or after [the applicant] started with EPSDD did she mention to me she had a pre-existing anxiety or mental health condition, or that her condition was affected by her work hours. [the applicant] also did not mention that her work hours were affecting her children.
105. [the applicant] discussed with me, or emailed me, or both at times she needed to arrange her days or take leave for her family or for specific medical issues. Each time [the applicant] would outline the issue and present the way she wished to address it. I agreed to and approved all her requests.[19]
[19] Witness statement of Ms Vanessa Morris dated 9 October 2020 at [104]-[105]
During oral examination in chief, Ms Morris said about the operational requirements of her section, that they were understaffed, had a budget requirement to complete 15 reforms in the year and at the point of recruitment, due to being understaffed, had completed only one reform. She said that her own workload was “excessive” and that “no matter how many staff we had, the reform program would be delivered by the middle of the year”.
During cross examination Ms Morris said that the tolerated level of flex debt in the ACT public service is approximately two to three days. She said that the level of flex debt of two to three hours per fortnight that was being accrued by the applicant was not remarkable nor worth having a discussion with the applicant about.
Ms Morris said that she didn’t get the sense from the timesheets she approved that the applicant had had any problems in working her contractual hours nor did the timesheets reflect that the applicant did not have enough work to do.
The respondent submitted into evidence[20] the applicant’s timesheets for the duration of her contract with the respondent. The timesheets show that the applicant worked her contractual hours on most weeks, with some weeks having a slight flex credit and some weeks a slight flex debt, with the highest flex debt being 3.5 hours in the fortnight commencing 30 May 2019 and ending 12 June 2019.
[20] Exhibit R3
Ms Morris said that she and the applicant worked in close proximity so she was aware of the hours that the applicant worked when she was in the office, and Ms Morris did not get the impression that she was not working during the hours she was there. Ms Morris was also of the view that the quality of the applicant’s work was “satisfactory”.
Evidence of Dr Erin Brady
Dr Brady gave evidence to the Tribunal through her witness statement dated 8 October 2020 and in oral evidence on 17 December 2020.
Dr Brady was part of the panel of three that conducted the interviews on 12 November 2018 for policy officer positions in the Building Policy Team in EPSDD. She said that she and Ms Morris both informed applicants during the interviews that the positions were full-time given the workload and deadlines affecting the building reform program.
Dr Brady said that in late June 2019 the applicant approached Dr Brady’s executive assistant and requested a meeting with Dr Brady regarding “staffing matters”. Dr Brady then asked Mr Power, the Executive Branch Manager, to meet with the applicant and she too would meet with the applicant to allow her to “raise matters with an executive and prior to her departure”. Dr Brady then met with the applicant on 2 July 2019 and took contemporaneous notes of the discussion which she submitted to the Tribunal with her witness statement.
After the meeting on 2 July 2019, Dr Brady said that she spoke with Mr Power and Ms Morris and relayed the applicant’s concerns to them, suggesting that they monitor behaviour within the group, including the applicant’s behaviour. Dr Brady then held a meeting with the Building Policy Team on 16 July 2020 for 30 minutes, intending this meeting to provide a debriefing opportunity for the team, including the applicant. She said that during this meeting the applicant did not raise any issues pertaining to Ms Morris.
Dr Brady said that at no point during her discussion with the applicant did the applicant refer to bullying or discriminatory behaviour from her colleagues, including Ms Morris, nor did she raise any concerns regarding abhorrent behaviour from Ms Morris.
Dr Brady said that during her meeting with the applicant on 2 July 2019, the applicant raised concerns about the type of work she had been allocated and the manner in which she had been managed.
Dr Brady’s notes from the meeting were attached to her witness statement. They provide a record of the conversation, including that:
(a)the applicant had requested part-time work after appointment;
(b)the applicant had been advised that her time with the EPSDD was ending and she would be returning to her Commonwealth Government job;
(c)the applicant had requested to work part-time after being offered appointment and Ms Morris had told her that the role was full-time – Dr Brady noted that she told the applicant that the positions were intended to be full-time from the outset and, given the high workload and deadlines for reforms, a request for part-time work should have been raised early on;
(d)the applicant had not been given work and had not developed or grown or used her skills appropriately during her term of employment with the respondent;
(e)the applicant had said that Ms Morris was difficult to work with and that she was “crazy”. That Ms Morris did not encourage team meetings, lunches and camaraderie;
(f)the applicant had tried to speak with Mr Power and Ms Morris but they had not had time; and
(g)Dr Brady had spoken with Mr Power and Ms Morris about this after the meeting and they had indicated that the applicant would “speak about issues openly and abruptly and inappropriately to Ms Morris and in front of others and didn’t ask for separate meetings”.
Dr Brady had undertaken to review the group and work to make changes in how people were managed going forward.
In her witness statement Dr Brady says that changes were made following the applicant’s feedback, which included:
(a)a new Executive Branch Manager (EBM) was recruited after Mr Power left the role and “a consideration for the new appointee was the ability to be hands-on in management of the building policy reform program and team”;
(b)the new EBM monitored work distribution and the work program for the final year of the stage one reforms, which largely concluded on 30 June 2020; and
(c)an internal review of positions and team structures occurred to clarify roles, responsibilities and skills as the focus of the work changes.
In her oral evidence, Dr Brady said that during the recruitment interview the applicant had not raised a request for part-time employment. Dr Brady also said that, when recruiting employees at a particular level, the assumption is that they are paid at the base level for that position. If they wish to be paid at a higher rate they would be asked to put their request in writing and explain why they believe that they ought to be paid at a higher rate.
Dr Brady said that Ms Morris had a tendency not to delegate work at times because of the urgency of it, the sensitivity or the technical details.
Dr Brady said that her interpretation of her meeting with the applicant was not that the applicant was making a formal complaint, but rather that she was raising “some issues” with Dr Brady prior to finishing her contract with the respondent. Dr Brady said that the applicant had not suggested to her that she was making a formal complaint about Ms Morris. Dr Brady had not referred the discussion to the directorate’s Human Resources department because she did not view the conversation as a formal complaint.
The Discrimination Act
The Discrimination Act 1991 (Discrimination Act) makes certain types of discrimination unlawful. To succeed in an action under the Discrimination Act, a complainant must establish that he or she has a protected attribute under section 7 of the Discrimination Act, has been subjected to an act of direct or indirect discrimination as per the definition in section 8 of the Discrimination Act, and that the discriminatory act took place in an area of public life specified in Part 3 of the Discrimination Act.
‘Parent, family, carer and kinship responsibility’ is a protected attribute under section 7(1)(l) of the Discrimination Act. The applicant is a single parent with caring responsibility for two primary school-aged children. This is a protected attribute.
‘Discrimination’ is defined in section 8 of the Discrimination Act to mean:
Meaning of discrimination:
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
(4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
(5) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include–
(a)the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b)the feasibility of overcoming or
mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.
The applicant characterised the respondent’s treatment of her as direct discrimination, however, the essential facts upon which she relies may be equally capable of being characterised as indirect discrimination. As the tribunal noted in Andreopoulos v University of Canberra:[21]
Although at one time direct discrimination and indirect discrimination were considered mutually exclusive categories of discrimination under the legislation as it stood at the time, amendments to section 8 by the Discrimination Amendment Act 2016 make it clear that discrimination may occur when a person discriminates directly or indirectly, or both, against a person. They are not mutually exclusive and may arise out of the same set of circumstances.[22]
[21] [2020] ACAT 95
[22] Australian Capital Territory v Wang [2019] ACAT 65 at [159]
The respondent’s case was prepared on the basis that the complaint involved claims of direct and indirect discrimination.
It is necessary for the Tribunal to consider whether the evidence establishes that direct or indirect discrimination has occurred. The applicant’s characterisation of the respondent’s conduct as direct discrimination is not determinative.[23]
[23] Andreopoulos v University of Canberra [2020] ACAT 95 at [14]
Section 53CA(2) of the HRC Act provides for the onus of proof where a complaint is referred to the ACAT about direct or indirect discrimination.
In relation to direct discrimination, the complainant must establish that the respondent’s treatment of her was unfavourable and this unfavourable treatment was because of her parenting responsibility, based on evidence before the Tribunal. The presumption may be rebutted by the respondent if it establishes any unfavourable treatment was not because of the claimed protected attribute.
Unfavourable treatment is fundamental to a claim for direct discrimination. The Discrimination Act does not include any definition of ‘unfavourable’ or ‘unfavourable treatment’. However, a body of case law has developed which gives meaning to the term. In Prezzi, Patricia Anne and Discrimination Commissioner[24] President Curtis said:
The ACT Discrimination Act... does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.
[24] [1996] ACTAAT 132; Affirmed in Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379; Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
Unfavourable treatment then is treatment that is disadvantageous or detrimental to the complainant. In Cooley and the Australian National University,[25] a claim brought in the then ACT Discrimination Tribunal, Deputy President Peedom said:
A detriment involves some loss, or damage or injury (see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSW ADT 44 at 41) and is broad enough to cover any disadvantage, as long as it is real and not illusory. Whether a detriment has been suffered is to be determined objectively and not by the subjective perceptions of either the complainant or the Respondent. (see Ellis v Mount Scorpus Memorial College [1996] VADT 16 (29 March 1996)).
[25] [2007] ACTDT 2 at [44]
For indirect discrimination the complainant must establish that the respondent’s requirements had, or were likely to have, the effect of disadvantaging her. Again, this must be based on evidence that enables the Tribunal to decide, in the absence of any other explanation, that the effect of disadvantaging her was because of her parenting responsibilities. The presumption may be rebutted if the respondent establishes that the requirement was reasonable in the circumstances, or that the effect of disadvantaging the applicant was not because of her protected attribute.
The issue of unfavourable treatment is a question of fact with an objective rather than comparative test. In Kidman v Casino Canberra Ltd,[26] the tribunal said:
The Discrimination Act does not define ‘unfavourable treatment’ or what is meant by ‘treats or proposes to treat another person unfavourably’. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: “were you treated less favourably than others?” It asks, “were you treated unfavourably?” This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is ‘unfavourable treatment’ and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[27]
[26] [2020] ACAT 50 at [22]
[27][2020] ACAT 50 at [22] citing Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64 at [6]-[7]; See also Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]
‘Unfavourable treatment’ may encompass acts or omissions which result in some detriment, being loss, damage or injury.[28]
[28] Cooley v Australian National University [2007] ACTDT 2 [44]; See also Prezzi v the Discrimination Commissioner [1996] ACTAAT 132 at [22] (affirmed by the Federal Court in Edgelyv Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]-[57])
The words ‘effect’ and ‘disadvantaging’ are not defined in the Discrimination Act. In Australian Capital Territory v Wang,[29] the tribunal adopted the following meaning of ‘disadvantage’ discussed in Prezzi, Patricia Anne and Discrimination Commissioner:[30]
22. …While the term “disadvantage” might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines “disadvantage” as “absence or deprivation of advantage; any unfavourable circumstance or condition”. The primary meaning of “advantage” does not import comparison or means specially favourable to success, interest or any desired end.
…
24. It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant’s interests or are adverse to the complainant’s interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint.
[29] [2019] ACAT 65 at [185]
[30] [1996] ACTAAT 132 at [22] and [24] and later approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
The extent of relief that might be granted by the Tribunal is set out in section 53E of the HRC Act. It also sets out the matters to be considered when making an order if the Tribunal finds that discrimination has occurred. Section 53E(2) provides that the Tribunal must make one or more of the orders mentioned in the subsection, including that the person complained about pay a stated amount of compensation for any loss or damage suffered by the other person because of the discrimination.
The applicant seeks the following relief:[31]
(a)$3,000;
(b)apology;
(c)declaration; and
(d)investigation.
[31] Applicant’s submission
The Tribunal’s power to make orders however is confined to section 53E(2) of the HRC Act.
The respondent’s application for summary dismissal of the complaint
Section 32(2) of the ACAT Act confers power on the tribunal, among other things, to dismiss the whole or part of an application if the tribunal considers the application is frivolous or vexatious, lacking in substance, or otherwise an abuse of process. The respondent claims the complaint is lacking in substance.
In Cheluvappa v University of Canberra[32] (Cheluvappa), the Tribunal set out the principles to be applied when considering such an application in a discrimination matter, as follows:[33]
[32] [2018] ACAT 108
[33] Cheluvappa v University of Canberra [2018] ACAT 108 at [39]. See also TGD v Australian National University [2019] ACAT 81 at [66]. Both decisions cited the summary in Jamieson Mary v Australian Workers Union and Anor [1999] VCAT 268 of the principles considered by the Victorian Court of Appeal in The State Electricity Commission Board v Rabel [1998] 1 VR 102
39.
…
(5)In an application, the Respondent bears the onus of showing that the complainant's case ought not be allowed to proceed…
(6)For a dismissal or strike out to succeed, a Respondent must show…that the complainant's case is obviously hopeless and untenable or that it could on no reasonable view justify relief. The Tribunal's power to dismiss or strike out a complaint should however be exercised with caution and consistently with the objectives of the Act.
(7)In dealing with a dismissal or strike out matter a clear distinction must be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.
(8)A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where the Respondent can show a defence sufficient to warrant the summary termination of the complaint.
(9)The Tribunal should not apply technical, artificial, or mechanical rules in coming to a view about the case that a complainant wishes to advance.
Two additional comments should be made. First, if the material before the Tribunal shows that there is a dispute between the parties as to a fact in issue and the material does not assist the Tribunal to resolve the dispute, then it would be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.
Second, if the Respondents have satisfied the Tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element essential for the complainant to prove in order to substantiate the complaint at a full hearing, then the complaint or the relevant part of the complaint should be dismissed or struck out.
In Andreopoulos, the tribunal said:
93. As the principles applying to summary dismissal in discrimination cases discussed in Cheluvappa[34] make clear, the onus lies on the University to satisfy the Tribunal that the complainant’s case is so lacking in substance that it should not be allowed to proceed – i.e. proceed to a final hearing on the merits. We are not satisfied that the University has done so. The Tribunal is not satisfied the complaint should be dismissed for lacking substance.
94. Applications of this kind normally are made before a Respondent incurs the time, trouble and expense of preparing evidence for a final hearing, as happened earlier in this case when the University sought and was refused an order that the complaint be dismissed on the grounds that it lacked substance. The context in which the present application is made is different. All the evidence is before the Tribunal. The Tribunal is able to decide the complaint on its merits. We see no utility in deciding separately whether the complaint lacks substance in the sense necessary to justify an order under section 32(2) of the ACAT Act. Doing so at this late stage, in our view, would not be consistent with the objects in section 6(c) and (d) of the ACAT Act. In the present circumstances, where all of the evidence is before the Tribunal, a proper exercise of the Tribunal’s discretion under section 32(b) is to decide the issues on the merits considering all of the evidence.[35]
[34] Cheluvappa v University of Canberra [2018] ACAT 108 at [39]
[35] Andreopoulos v University of Canberra [2020] ACAT 95 at [93]-[94]
Adopting those principles, we are not satisfied the complaint should be dismissed for lacking substance. In the circumstances, and for reasons that become apparent below, we consider it appropriate to adopt the approach taken by the tribunal in Andreopoulos and decide the issues on the merits considering all of the evidence. It does not lack substance so as to warrant dismissal under section 32 of the ACAT Act.
Factual findings
The applicant worked for the respondent for a 6-month period from 29 January 2019 – 28 July 2019. She was employed on a full-time basis at Administrative Services Officer Grade 6. She was offered and accepted the role on a full-time basis.
Prior to commencing her new role, the applicant wrote to the respondent asking whether ‘there was scope’ for part-time hours in this role and submitted a proposal for the part-time working arrangements she required – namely five days with two early finishes to do ‘school pick-ups’. The respondent replied to this query stating that there was no scope for part-time hours in this role but flexible working arrangements were available to all employees. We accept the applicant’s submission that this exchange constitutes a request for part-time work from the applicant, a request which was denied by the respondent.
The respondent submitted that she was not aware of the applicant’s parental responsibilities. The applicant in her email to the respondent requesting part-time working arrangements states that she requires two early finishes “for school pick up”. In our view this statement clearly provides details to the respondent of the applicant’s parental responsibilities in so far as school pick-ups are concerned.
Was the applicant directly discriminated?
In order for a complaint of direct discrimination to succeed, the evidence must show that the applicant was adversely treated because of her protected attribute, in this case – parental responsibilities.
Request for part-time hours
For a direct discrimination complaint to succeed in the context of the request for part-time hours, the evidence must show that the decision to refuse part-time hours was made because of the applicant’s protected attribute. The evidence before the Tribunal does not support this conclusion, nor did the applicant seek to make the assertion that she was refused part-time hours because of her parental responsibilities.
We are not satisfied that the respondent refused the applicant access to part-time working arrangements because of her protected attribute of being a parent or a carer.
We accept that the decision not to allow a single parent access to part-time working hours to enable her to balance her family responsibilities with her work may amount to unfavourable treatment. However, we do not accept that the decision to refuse the request for part-time hours was made because of the applicant’s protected attribute of being a parent or a carer. This treatment therefore does not amount to direct discrimination.
The Tribunal is not satisfied the applicant was subjected to direct discrimination in relation to her request for part-time working hours. We also consider this part of the complaint in the context of indirect discrimination below.
Challenging and meaningful work
The applicant asserts that she was not given challenging and meaningful work during the course of her employment because of her parenting responsibilities. In her witness statement and in her oral evidence she recalled a conversation where the respondent told her that she could not be given certain work because she had parental responsibilities and could therefore not work after hours.
The respondent denied this characterisation of the conversation. The respondent asserted that she had said to the applicant that she would not expect employees with parental responsibilities to work long hours and after hours in the same manner as the respondent did. We do not accept that this assertion amounts to unfavourable treatment.
We are not satisfied that the respondent denied the applicant access to challenging and meaningful work because of the applicant’s protected attribute. The respondent has made detailed submissions about the nature of the work that the applicant was required to do during the course of her employment. We accept that the work undertaken by the applicant was varied and that no deliberate attempts were made to limit the challenging nature of this work.
The evidence before the Tribunal indicates that, on more than one occasion, the applicant was allocated the type of work that she had requested. Moreover, the ministerial communication that she identified as being of a more challenging nature were characterised by the respondent to be similar to the work that the applicant had engaged in in her prior employment and were therefore not regarded by the respondent to be ‘challenging’ for the applicant. This work was allocated to an employee who was lower in rank than the applicant because the work was deemed to be less complex and less challenging.
It is apparent from the evidence that the applicant had certain expectations for what the role might offer her professionally and the type of work she might be doing which was not met in her mind. While she no doubt had policy experience, she had no particular subject matter expertise, which limited some of the work she could be allocated. That is not a basis upon which a finding of direct or indirect discrimination can be made.
The applicant was not able to identify the type of work she considered meaningful and challenging. We are not satisfied that the applicant was denied access to challenging and meaningful work because of her protected attributes. The Tribunal is not satisfied that the applicant was subjected to direct discrimination in relation to the type of work she was allocated. We do not consider it necessary to consider this part of the complaint in the context of indirect discrimination.
Was the applicant indirectly discriminated?
We have also considered whether the applicant was indirectly discriminated against in this context. Whether the decision to refuse to allow the applicant access to part-time hours and instead require that she accommodate her parenting responsibilities through flexible working arrangements, disadvantaged her because of her protected attribute as a parent and a carer. The applicant says that this requirement:
(a)Caused her stress and exacerbated her anxiety as she was unable to meet her parenting responsibilities while maintaining her working hours.
(b)Caused her stress and exacerbated her anxiety because she did not have sufficient work to do to make up her contract hours.
(c)She could not justify working outside of business hours (to take up the flexible working arrangements) because she did not have sufficiently urgent work to do to justify this.
We accept the applicant’s evidence that she felt disadvantaged as result of having to work full-time flexible hours instead of part-time hours. However, in determining whether the applicant has suffered a detriment or disadvantage because of the requirement that she work flexible hours instead of part-time hours, we must determine objectively whether a detriment has been suffered and not rely entirely on the subjective perceptions of either the applicant or the respondent.
The part-time working hours that were proposed by the applicant prior to the commencement of her employment with the respondent involved two early finishes per week which she had in her previous role managed by working a nine day fortnight. The applicant was proposing a similar arrangement with the respondent in order to accommodate her parenting responsibilities in doing two school pick ups per week. If this arrangement was to be accommodated through flexible working hours, the applicant had to make up the approximate 3-4 hour shortfall per week on her other days at work. This would mean that she had to work approximately one extra hour per day four days per week.
There was evidence provided by the applicant to the effect that working more hours on other days was difficult for her for personal reasons but also because her particular tasks were not time sensitive and of an urgent nature to justify working outside of business hours in order to complete this work. However, in providing other evidence regarding her access to meaningful work, she asserted that she had the capacity to stay back late some afternoons to undertake more complicated and meaningful work. This suggests that there was room and a willingness on the part of the applicant for flexible working arrangements.
Was she disadvantaged by being required to work full-time flexible hours instead of part-time hours? The applicant alleges in her submissions and through her oral evidence at hearing that she was disadvantaged in the following ways:
(a)“Working full-time and being unable to spend meaningful time with my children”.
(b)“Inability to work variable hours also effected the behaviour of my children, specifically my eldest son, where he became more withdrawn, frustrated and angry due [to] the fact I was subjected to reduced meaningful time with him”.
(c)“Aggravation of my pre-existing mental health, resulting in distress, loss of self-esteem and loss of enjoyment of life relating to the care and enjoyment of my family”.
(d)She was unable to spend time with her children and assist them with after school homework.
(e)That her children had to stay in after-school care more than she would have liked.
(f)She was unable to make connections with the school community.
The respondent alleges that due to the output of work required of the unit they required the applicant to work full-time and were unable to accommodate the 3-4 hours per week shortfall that would have resulted from the applicant’s proposed part-time working hours.
We do not find that the evidence objectively supports the assertion that the applicant could not manage her work and family responsibilities through flexible work arrangements. The applicant has indicated in her own evidence that she was willing and able to work later hours some evenings in order to undertake what she defines as more ‘challenging and meaningful work’. This suggests that working after business hours in order to make up the shortfall was possible for her.
The applicant was also able to work from home and had done so on at least one occasion during the course of her employment with the respondent. This suggests that the work that she had been allocated could be completed outside of the office and she had the facility with which to do this work outside of the office if required.
We do not accept the applicant’s submissions that work must be time sensitive or urgent in order to justify working outside business hours. This is precisely what flexible working arrangements are designed to accommodate. We do not accept the applicant’s submissions that she did not have enough work to do to make up a full-time working week or to justify working outside of business hours to complete this work. The applicant’s time sheets indicate that she was able to meet her contract hours with the workload that was allocated to her. Moreover, the respondent submitted that it was under considerable pressure to complete a suite of reforms within a limited timeframe.
We therefore do not find that the disadvantage alleged by the applicant meets the objective threshold. We do not accept that the applicant could not accommodate her family and work responsibilities through flexible work arrangements, which the evidence clearly suggests that she was able to do successfully while employed by the respondent. The Tribunal is not satisfied that the applicant was the subject of indirect discrimination in relation to part-time hours. Even if we found that she was disadvantaged, in order for indirect discrimination to have occurred we must determine whether the condition or requirement to work full-time flexible hours was reasonable in the circumstances. For completeness, we consider this below.
Was it reasonable?
We accept the respondent’s submissions that the division was under significant pressure to deliver significant reforms in a short timeframe, that the new positions were created specifically to assist the division with this workload, and that an operational decision was made that the new employees would be employed on a full-time basis.
The applicant accepted the role on a full-time basis and worked in the role until the end of her contract. However, the part-time arrangements that the applicant requested would have resulted in her working only approximately eight less hours per fortnight or working a nine-day fortnight. Could this one-day shortfall be absorbed by the respondent, thereby enabling the applicant to arrange her family and work life, or could the applicant have used the flexible working arrangements foreshadowed by the respondent to partake in her family responsibilities two afternoons per week as requested and make these hours up during the course of the week? In other words, is it fair and reasonable to ask the applicant to make up the shortfall on other days instead of working part-time, or should the respondent have absorbed the one day per fortnight shortfall that the applicant had requested? What was reasonable in the circumstances?
The applicant submits in her timeline of events “the role was a policy role, did not require the delivery of front-line services or of an operational nature”.
The applicant asserted that she was not particularly busy and would have struggled to work additional hours as her workload was not particularly heavy. She says that, in her opinion, a nine-day fortnight would have been sufficient to complete the work that she had been allocated and therefore it was unreasonable for the respondent to refuse to allow her to work part-time hours. This is purely subjective. The respondent was entitled to expect full-time hours irrespective of whether the applicant regarded it as feasible to be filled part-time.
On the other hand, the respondent is a large ACT Government directorate that employs a large workforce. Is it reasonable to require such an employer to absorb the four hours per week that the applicant sought to accommodate her parenting and caring responsibilities?
In assessing whether the condition or requirement imposed here by the respondent was reasonable in the circumstances we must turn our mind to the following considerations:
(a) the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.[36]
[36] Discrimination Act 1991 section 8(5)
We have already found the applicant was not disadvantaged because she worked flexible hours rather than part-time. The respondent had an expectation upon advertising and filing the position that it would be full-time. Flexible working arrangements are commonplace in the public service.
Regardless of the applicant’s perception of the demands of the role, the respondent held the view that the role was best served flexibly rather than part-time. We regard that as reasonable. The applicant’s willingness to work on that basis was exemplified by accepting the position on the terms offered. We accept that the applicant did not have a sense of entitlement to work part-time and that it was her preference based on the arrangements she had in place at the time. However desirable it was for her to work part-time instead of flexibly, the respondent was not obliged to accede to that as the applicant’s parenting responsibilities and needs were reasonably accommodated within the framework of flexible working arrangements. The applicant also did not raise it again. It is of course not a ‘one-size fits all’ solution. In all of the circumstances of this case the respondent’s requirement was reasonable.
Conclusion
Work life balance can be difficult to successfully negotiate while working and raising children, this can be particularly so for single parents. We acknowledge that this balance can often seem elusive or impossible and parents struggle with the constant juggle of family and work responsibilities. Be that as it may, the Tribunal’s task here is to determine on the evidence and on the balance of probabilities whether the applicant, because of her parental and caring responsibilities, was discriminated against by the respondent in being refused access to part-time hours and by not being provided with challenging and meaningful work during the course of her employment with the respondent. We are not so satisfied.
We accept the applicant as a witness of credit who represented herself in a professional and capable manner. However, based on the evidence before the Tribunal and the parameters of the Discrimination Act 1991 we are not satisfied that the applicant was denied access to part-time work or meaningful work because of her protected attribute or that in failing to give her access to part-time work, because of her protected attribute, she was disadvantaged and the respondent’s requirements were unreasonable in the circumstances.
Although we acknowledge the challenges that the applicant faced in balancing the needs of her family with the needs of her employer and accept her evidence that she felt that her mental health deteriorated and her children were negatively impacted during this period, we cannot be satisfied on the balance of probabilities that these challenges were informed by discriminatory conduct of the respondent.
We accept the applicant’s evidence that she requested part-time working hours from the respondent at the outset and prior to commencing her employment, and that her request was denied, and she accepted the role on a full-time basis from thereafter.
We accept the respondent’s evidence that this request was not denied because of the applicants parenting or caring responsibilities but rather because of the operational needs of the respondent who had recruited the applicant specifically to support the respondent in delivering a suite of communication work and policy and legislative reforms within a limited timeframe and had envisioned that the applicant would be working full-time on a 6-month contract to facilitate the completion of this work.
We are also satisfied that the respondent provided the applicant with access to flexible working arrangements to assist her in managing her work and family responsibilities and that the applicant availed herself of these arrangements throughout the course of her employment. We are of the view therefore that the requirement to work flexible full-time hours was reasonable in the circumstances and therefore not discriminatory.
We do not accept the applicant was denied access to challenging and meaningful work because of her parenting responsibilities. Although we are open to the submission that the work that was allocated to the applicant was not always challenging and meaningful and was perhaps at times tedious, we are not satisfied that the nature of the work allocated to the applicant by the respondent was determined by her protected attribute. The applicant has not provided sufficient evidence to substantiate this claim. We accept the work was allocated based upon the applicant’s experience and operational needs of the respondent. Moreover, we accept that the work that was allocated to the applicant was varied in nature and at times allocated to her in response to her expression of interest in this work.
The applicant was not subjected to discrimination by the respondent during the course of her employment and the application is dismissed.
………………………………..
Senior Member K Katavic
For and on behalf of the Tribunal
| Dates of hearing: | 16-17 December 2020, 8 February 2021 |
| Applicant: | In person |
| Counsel for the Respondent: | Ms A Costin |
| Solicitors for the respondent | ACT Government Solicitor |
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