FREEMAN and KIMBERLEY TAFE
[2012] WASAT 136
•29 JUNE 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: FREEMAN and KIMBERLEY TAFE [2012] WASAT 136
MEMBER: MS D TAYLOR (SENIOR MEMBER)
HEARD: 12 DECEMBER 2011
DELIVERED : 29 JUNE 2012
FILE NO/S: EOA 40 of 2010
BETWEEN: SUSAN FREEMAN
Applicant
AND
KIMBERLEY TAFE
Respondent
Catchwords:
Claim of indirect discrimination on grounds of family responsibility in employment Single parent of schoolaged child Referral to Tribunal under s 93(1)(b) of the Equal Opportunity Act 1984 (WA) - Failure to produce evidence essential to establish claim - Application dismissed
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 4(a), s 4(b), s 4(c), s 4(1), s 35A, s 35A(1), s 35A(1)(a), s 35A(1)(b), s 35A(1)(c), s 35A(2), s 35A(2)(a), s 35A(2)(b), s 35A(2)(c), s 35B(2), s 90, s 93(1)(b)
State Administrative Tribunal Act 2004 (WA)
Result:
Applicant's claim is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Ms G di San Marzano
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Commonwealth Bank and HREOC (1998) EOC 92-908
State Housing Commission v Martin (1999) EOC 92-975
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant claimed that she was indirectly discriminated against in the area of employment on the ground of family responsibility, because the respondent decided to relocate the division in which she worked from Kununurra to Broome, and she was a single parent raising a teenage child.
The respondent is a provider of education in the Kimberley region of the State, with campuses located in a number of towns that include Kununurra and Broome. During the period in 2009 and 2010 when the indirect discrimination is alleged to have occurred, the applicant was a level 6 employee in the Corporate Services division based in Kununurra.
The applicant was unable to prove essential elements of her claim. She was also unable to show that the respondent's decision to relocate its Corporate Services division was unreasonable in the circumstances of the case.
The Tribunal considered the applicant's disappointment at the decision to relocate the Corporate Services division and the choices she faced as a result of that decision to have been made more difficult by her refusal to engage in any meaningful discussion with the respondent about her options between October 2009 and February 2010. The applicant's conduct in response to the decision contributed to her sense of grievance. The applicant could have moved to Broome had she wished to do so. She decided to remain at the campus in Kununurra where she continued to be employed on the same terms and conditions.
Background to the claim
On 18 June 2007, the applicant commenced work for the respondent as Human Resources Manager in the Corporate Services division at the Kununurra campus. She had moved from Darwin to Kununurra with her daughter to take up the position.
The respondent has been a provider of education in a number of towns in the Kimberley region of the State since 1994. The complaint relates to decisions taken by the respondent's Governing Council in October 2009.
In July 2009, the respondent informed the applicant and her colleagues that consideration was being given to the allocation of resources within the region that may lead to changes in the structure of the organisation and where resources were deployed.
On 19 October 2009, the respondent's Governing Council decided to relocate its Corporate Services division from Kununurra to Broome (the decision). The decision was recorded as follows:
1.Corporate Services be progressively relocated to Broome in a manner that has the least impact on staff and TAFE and the MD in conjunction with the Governing Council [exploring] how this can be best managed.
2.Any naturally occurring vacancies in Corporate Services in Kununurra will be relocated and filled in Broome.
3.The MD will decide the priority for the progressive relocation of Corporate Services to Broome.
4.Staff will be offered the option to relocate to Broome and will be invited to discuss their opportunities and personal circumstances with the MD.
The decision was made as a result of recommendations received from independent consultants asked to provide strategic advice about how best to allocate resources within the region. The respondent had seen numbers of students enrolled at the campus in Broome rise steadily in recent years, as a direct result of the increased population in the town and surrounding area.
On 22 October 2010, the respondent informed staff, including the applicant at the Kununurra campus, of the decision at a meeting convened for that purpose, and asked if staff would let the respondent know if they would like to move to Broome.
News of the decision came as no surprise to the applicant, as the possibility of a move had been discussed openly within the organisation since at least the middle of the year.
The applicant was unhappy about the decision as she did not wish to move from Kununurra. She liked her job as it was, and thought that her daughter would suffer adversely if she were to be uprooted from Kununurra and moved to Broome.
The applicant concedes that she declined to engage in a discussion about her options beyond informing the respondent that she did not consider the decision to relocate the division from Kununurra to Broome to be necessary or personally convenient, and that she would not be moving.
In January 2010, the applicant informed the respondent that she would not move to Broome because she thought a move would disrupt her daughter's education. She said she wished her daughter to continue to go to school in Kununurra.
On 22 February 2010, the applicant asked the respondent if it would be possible to postpone relocation until the end of the year. The respondent said a Human Resources Manager would be required in Broome in the next couple of months and, to that end, it was not possible to postpone a move until the end of the year.
The applicant confirmed that she would not move to Broome.
On 1 March 2010, the applicant's job as Human Resources Manager based in Kununurra was abolished and she was given other duties.
Complaint to the Commissioner
On 12 March 2010, the applicant lodged a complaint with the Equal Opportunity Commissioner (Commissioner) in which she wrote the following:
•The College decided to locate all Corporate Services positions to Broome.
Staff in Kununurra were invited to relocate[.] When I declined that invitation (due to the fact that I do not want to move my 13 year old daughter) I was told that my position would be abolished.
…
•I think there is discrimination because it is much easier for new starters or employees without family responsibilities to move (their whole lives) from one town to another on short notice. Broome is almost 1,000 km from Kununurra.
In my view, there has been no consideration of my personal circumstances and no effort to accommodate them (without personal damage to me).
•… I am reluctant to move her at the beginning of Year 9 as I believe that is a very important school year especially for girls. She also has commitments at school which I am very loathe [sic] to disrupt.
•I have been advised that the quality of my work was not in question.
…
The applicant complained that as a result of the decision to relocate, she had suffered 'loss of position, status, credibility, work satisfaction and enjoyment'. She said she had suffered stress and loss of wellbeing and that she was 'feeling very depressed'. She feared that she would suffer potential loss of income and conditions of service, and that she would have to incur the cost of relocation if she was eventually redeployed. She indicated that she would be satisfied if her position as Human Resources Manager in Kununurra remained as was, and sought compensation for any losses that she may incur, and for the stress and uncertainty that both she and her daughter were experiencing. She also sought a guarantee that she could stay at her current level in Kununurra until she decided to move on.
Referral by the Commissioner
The Commissioner investigated the complaint and endeavoured without success to help the parties reach an agreement at conciliation.
A number of factual matters that are not in dispute were clarified in the course of the Commissioner's investigation.
On 6 July 2010, the respondent wrote to the Commissioner in response to the complaint and said the following:
Kimberley TAFE has six campuses in Broome, Kununurra, Fitzroy Crossing, Derby, Wyndham and Halls Creek and provides training to almost 4,000 students every year.
Kimberley Regional College was established in 1994 in Kununurra. At that time the population distribution of the Kimberley was different to the current position. Then, the Broome and Wyndham-East Kimberley Shires were relatively even[;] however, the population of the Broome Shire has substantially increased in the last 25 years. At present the Kimberley TAFE Corporate Services and Executive staff is almost evenly distributed between Kununurra and Broome, with slightly more people in Broome.
The respondent confirmed that, in October 2009, its Governing Council decided that the Corporate Services division would be gradually relocated from Kununurra to Broome. It maintained that it 'worked tirelessly to keep staff informed and to manage this change with minimum distress and disruption to staff'.
On 17 September 2010, the Commissioner referred the complaint alleging indirect discrimination on the ground of family responsibility in the area of employment to the Tribunal under the provisions of s 93(1)(b) of the Equal Opportunity Act 1984 (WA) (EO Act).
The applicant's case
The applicant sees the issue for determination being as follows (see Applicant's Statement of Issues Facts and Contentions):
… whether or not the Respondent, through its officers and employees, unlawfully discriminated against the Applicant on the ground of her family responsibilities, in contravention of sections 35A(2) and 35B(2)(a) and (d) of the Equal Opportunity Act 1984, as amended.
In summary, the applicant contends that the respondent indirectly discriminated against her in the area of employment on the ground of her family responsibilities because she is responsible for raising a child enrolled in education in Kununurra, which makes it more difficult for her to move to Broome than it would be for her colleagues without such responsibilities, in the context of the restructuring of the organisation. She infers that a move would be detrimental to her daughter, who is settled in Kununurra.
The applicant asserted that the decision to relocate the Corporate Services division to Broome (resulting in her position as Human Resources Manager being located at that campus) was not reasonable in the circumstances because:
(i)The Applicant requested [the Managing Director], on more than one occasion, to put the Applicant's options regarding the relocation in writing, but she declined to do so.
(ii)The Applicant requested that the timeframe for relocation be extended until the end of 2010, to enable her daughter to complete Year 9, but her request was rejected without explanation.
(iii)In any event, by the time of the release of the 'Colocation Assessment', [the Managing Director] had made up her mind that the affected positions would be relocated from Kununurra to Broome within 3 to 8 months.
(iv)[The Managing Director] was not inclined to consider any alternative other than the time-frame recommended in the Colocation Assessment.
(v)The Applicant would have been able to effectively carry out her duties as [Human Resources] Manager from Kununurra until the end of 2010.
(vi)The Respondent's administrative operations would not have been adversely affected by the Applicant remaining in Kununurra until the end of 2010.
The applicant filed a statement in support of her claim in which she expands upon her basic complaint.
The response to the claim
The respondent denies that it unlawfully discriminated against the applicant. It filed a number of statements from employees with firsthand knowledge of the events that occurred as a direct result of the decision to relocate the Human Resources division. In addition to the facts outlined above, the following matters are not in dispute.
Three other staff members based at the Kununurra campus in addition to the applicant were affected by the relocation: one moved to Broome, one took voluntary severance and one decided to retrain and become a lecturer in Kununurra.
On 22 January 2010, a draft Change Management Plan was sent to all staff by the respondent with requests for feedback and expressions of interest to be part of a working group.
On 2 February 2010, the applicant was advised that the position of Human Resources Manager based at the Kununurra campus would be abolished as of 1 March 2010.
On 3 February 2010, the applicant sent an email to the respondent saying that she did not know what her options were. In response to this message, on 10 March 2010, the applicant was asked to attend a meeting with the Managing Director to discuss the range of options open to her that included retraining, voluntary severance or redeployment. The applicant declined to attend the proposed meeting.
On 22 February 2010, the applicant raised for the first time the possibility of a move to Broome deferred until the end of the year. There is no dispute that, until this point in time, the applicant was resolutely opposed to any move. Following some discussion that included the Managing Director indicating that the timescale proposed by the applicant could not be accommodated, the applicant confirmed that she did not wish to move. Her salary or other entitlements were not affected by her decision to remain working at the Kununurra campus.
Sometime after the applicant lodged her complaint with the Commissioner, the respondent advertised the new position of Human Resources Manager based at the campus in Broome. The applicant did not apply for the post.
The applicant filed a response to these statements in which she reiterated the fundamental elements of her claim. However, she did not challenge the factual information relied upon by the respondent that was relevant to the issues to be determined by the Tribunal.
The respondent's submissions
The respondent denies that it imposed a requirement or condition upon the applicant to relocate to Broome. It asserts that the applicant was afforded an opportunity to relocate to Broome where the job as Human Resources Manager would be based following the restructuring of the organisation, or to remain based at the Kununurra campus on the same terms and conditions of employment, but assigned to other duties.
To that end, the respondent submits that the complaint must fail, because the applicant is unable to demonstrate that she was required to comply with a requirement or a condition in order to sustain her employment.
The respondent submits that the applicant could have relocated to Broome if she had wished to do so and that there were no factors connected to her relevant attribute of family responsibilities that prevented her from making the move: see State Housing Commission v Martin (1999) EOC 92-975.
The respondent also submits that the applicant is unable to demonstrate that the respondent behaved in a way that was unreasonable in all the circumstances of the case. It relies upon the decision in Commonwealth Bank and HREOC (1998) EOC 92-908 as pointing to the test to be applied when considering one of reasonableness, being that it is less demanding than one of necessity, but more demanding than a test of convenience. The respondent submits that the Tribunal must apply an objective standard when weighing the nature and extent of the discriminatory effect on the one hand, against the reasons advanced in favour of the requirement or condition on the other.
The hearing
Neither party sought to crossexamine any witness about the contents of a statement and relied upon its submissions at the hearing in December 2011.
The grounds of discrimination
Direct discrimination occurs when someone treats a person less favourably than they would treat another person in the same or similar circumstances because of a ground such as the other person's race, impairment, marital or family status, pregnancy, family responsibility, age, sex, sexual orientation, religion or politics.
'Family responsibility' or 'family status' in relation to a person is defined in s 4(1) of the EO Act as follows:
…
(a)having responsibility for the care of another person, whether or not that person is a dependant, other than in the course of paid employment; or
(b)the status of being a particular relative; or
(c)the status of being a relative of a particular person;
…
Discrimination on the ground of family responsibility arises under s 35A of the EO Act that states:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of family responsibility or family status if, on the ground of
(a)the family responsibility or family status of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same family responsibility or family status as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same family responsibility or family status as the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who does not have such a family responsibility or family status.
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of family responsibility or family status if the discriminator requires the aggrieved person to comply with a requirement or condition
(a)with which a substantially higher proportion of persons not of the same family responsibility or family status as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
and under s 35B(2) of the EO Act, which states:
It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibility or family status
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the access of the employee, to opportunities for promotion, transfer or training or to any other benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
The applicant does not claim to have been directly discriminated against in any deliberate or overt way. She claims that the discrimination is indirect, and quotes directly from a pamphlet issued by the Equal Opportunity Commission that says the following:
… Indirect Discrimination is when a requirement, condition or practice that is the same for everyone has an unfair effect on someone because of their family responsibility or family status, and is unreasonable in the circumstances.
The issue for determination
The applicant needs to establish to the requisite standard whether or not the respondent imposed upon her a requirement or condition, namely, that she must move to Broome in order to retain her employment, with which a substantially higher proportion of employees who were not parents of schoolaged children were able to comply.
Evidential burden
The applicant bears the burden of proving her case on the balance of probabilities. In order to succeed, she must prove to that standard that the elements of her claim of indirect discrimination are more likely than not.
Conclusion
The parties agree that the respondent's decision to relocate its Corporate Services division from Kununurra to Broome was made in the light of recommendations from independent consultants asked to advise about the best way in which to deploy resources in the Kimberley region. In the context of the information available that included information about the increased population in the Broome area, it appears to be an orthodox, reasonable and sensible decision with which the applicant can take no real issue on an objective level.
The parties agree that the process by which the decision was taken was made known to the staff likely to be affected by it in an open and transparent manner.
The parties also agree that the decision to relocate the Human Resources department to Broome was not welcomed by the applicant.
It seems to the Tribunal that the decision came as a great blow to the applicant because she had relocated with her daughter from Darwin to Kununurra two years previously to take up employment, and she did not want to move again. She had made a life for herself and her daughter in Kununurra which was settled and content. Her dismay at the news that her department in Kununurra would be axed in favour of expansion in Broome was unsurprising.
However, nothing in the material filed by the applicant in support of her claim or, for that matter, by the respondent in response to it, indicates that it was a requirement or condition of the applicant's continued employment that she move to Broome. The applicant states the position clearly in her complaint to the Commissioner when she says she was 'invited to relocate' (see para 19). It was an invitation that she refused.
The Tribunal considers the applicant to have been faced with a difficult and real choice as to whether she should follow the job she liked to Broome where it was going, or whether she should stay in Kununurra. The decision was not an easy one, but it lacked any element of compulsion. The Tribunal accepts the respondent's submission that the applicant has failed to establish an essential element of her claim in this regard.
The Tribunal accepts that the applicant's decision to remain in Kununurra was influenced by her wish to provide continuity of education and society for her daughter. It also accepts her evidence, given by way of submission at the hearing, that during the period in 2010 when she was considering her position in the light of the respondent's decision, she took steps that led to her daughter being sent to school in Perth. The applicant is entitled to make decisions concerning the education of her daughter as she thinks best. However, her actions in this regard serve to further illustrate that she was not prevented from moving by her daughter's circumstances. They also indicate a readiness and ability to make a decision for the benefit of a family member that would appear to be diametrically opposed to a position held previously.
Because the applicant has failed to establish an essential element of her claim, it is not necessary for the Tribunal to consider it further. However, in the event that the Tribunal's conclusion in this regard is wrong, the Tribunal has decided to consider other aspects of the claim, because it has concluded that it would be unsuccessful nonetheless.
The applicant adduced no evidence to show that her family responsibilities prevented her from moving to Broome, should she have decided to do so. She advanced no reasons why her daughter could not be moved from Kununurra, such as the need to comply with court orders to spend time with another parent, or the provision of services for special needs connected with her health or education, which might have required her to remain tied to the location.
There is no objective reason why the applicant's family responsibilities caused her to be unable to move to Broome. The applicant would have been able to move to Broome and keep her position had she wished to do so. There was nothing in her daughter's personal circumstances or her own that tied the applicant to Kununurra. However, her preference at the time was to remain living and working there.
The Tribunal considers the applicant's submission that the decision to restructure its organisation to cater for the evolving needs of its students was unreasonable in the circumstances of the case to be without merit. The decision was made in response to the changing needs of the student cohort in the Kimberley region and in line with recommendations in an independent report. The applicant adduced no evidence capable of showing that the decision was unreasonable.
For all the above reasons, the application is dismissed.
Order
The Tribunal orders the following:
The application is dismissed.
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D TAYLOR, SENIOR MEMBER
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