Harvey v Lou & Lou Pty Ltd
[2012] QCAT 453
•27 September 2012
| CITATION: | Harvey v Lou & Lou Pty Ltd and Anor [2012] QCAT 453 |
| PARTIES: | Jessica Leigh Harvey (Applicant) |
| v | |
| Lou & Lou Pty Ltd Jacque Davison |
| APPLICATION NUMBER: | ADL072-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 9 March 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen, Member |
| DELIVERED ON: | 27 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The complaint of discrimination against both Respondents is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION MATTERS – Employment – discrimination on the basis of pregnancy – casual employment – finding of no discrimination Anti-Discrimination Act 1991, ss 7, 10, 11, 15, 25 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self represented |
| RESPONDENT: | Self represented |
REASONS FOR DECISION
Allegation of pregnancy discrimination
Ms Harvey was a casual employee of Lou & Lou Pty Ltd, which trades as Donut King Rockhampton. Ms Harvey commenced her employment in May 2010, as a “shop assistant”. Ms Harvey complains that her hours were decreased by Donut King after she told her employers that she was pregnant, approximately six months after she commenced work as a casual employee, in November of 2010.
Much of the dispute in this matter relates to the role of “donut icer,” which Ms Harvey undertook beginning in August of 2010. This role entails decorating the donuts with icing. By undertaking this role, Ms Harvey increased her casual hours, undertaking two additional “icing” shifts per week on Tuesdays and Fridays between 5am-8am, in addition to the hours she worked as a “shop assistant”. This arrangement continued until 11 November 2010.
It is clear that the icing shift must take place early in the morning, in order to ensure that a full case of freshly iced donuts is on display for customers at the time of opening.
On 1 November 2010, Ms Harvey notified Ms Barclay, one of the owner-managers of the Donut King where Ms Harvey was employed, that she was pregnant. During this conversation, Ms Harvey informed Ms Barclay that she would be unable to continue with the two icing shifts on Tuesdays and Fridays as she was experiencing morning sickness. Ms Barclay asked if Ms Harvey could continue until the end of November, or at least until a replacement could be found. It is understood that Ms Harvey agreed to try to continue on this basis.
On 10 November 2010, Ms Harvey spoke to Ms Davison, the other owner-manager (and a respondent in this matter), and informed Ms Davison that she would be unable to continue icing as her morning sickness had worsened. During this conversation, Ms Davison informed Ms Harvey that she would also lose the shop assistant shifts which followed the icing shifts. This did, in fact, occur and Ms Harvey was removed from the roster for those shifts.
Ms Harvey did not want short shifts due to travel
Importantly, however, Ms Harvey admits that she did not want to work shifts of less than 3 hours because she lived some distance from the shop and therefore did not consider it worthwhile to travel for shifts that were of shorter duration. It follows then that Ms Harvey would not continue to be offered the shop assistant hours that she had been performing following her icing shifts, for the reason that these shop assistant shifts were of a shorter duration.
Following Ms Harvey’s inability to continue working as a “donut icer,” the number of hours she was rostered on for was significantly reduced. Donut King accepts that Ms Harvey’s hours were reduced, however, contend that this was as a direct result of Ms Harvey’s inability to undertake the task of icing, which Donut King says is a fundamental part of the job of working at Donut King. Donut King further says that the role of shop assistant, as well as that of donut icer, includes icing donuts as necessary when stock is depleted.
Ms Harvey’s casual employment with Donut King
There is nothing before the Tribunal to suggest that Ms Harvey was anything but a casual employee, and neither party disputes this. Of course, this does not mean that as a casual employee, that Ms Harvey is not entitled to be protected from discrimination in the workplace in the same way as any other employee. However, it does mean that in this particular case, where Ms Harvey asserts that she did not want to work shorter shifts, and could no longer perform early morning icing shifts, that I must look carefully at the nature of the role of a casual employee for this business.
In small business, it is necessary that employers maintain the right to flexibly engage work staff in order to create business efficacy. This is particularly the case here, where the owner-operators only engaged casual staff for the hours they did not work themselves, in an effort to maximise the profitability, and therefore viability, of their small business. In an ideal world, a casual employment arrangement allows both the employer and employee the ability to determine what work is available to be offered, and what work the employee will accept. There is no requirement in any legislation that a small business operator make particular hours or shifts available to work to casual employees.
Pregnancy and the Anti-Discrimination Act 1991
Whilst there is no obligation upon employers to allow casual staff to choose their own hours, there is a legislative requirement that employers do not engage in discrimination on the basis of the attribute of pregnancy. The Anti-Discrimination Act 1991 prohibits both direct[1] and indirect[2] discrimination in the area of work[3] on the basis of various attributes, including pregnancy.[4] Under the Act, work includes that undertaken on full-time, part-time, casual, permanent and temporary basis.
[1] Anti-Discrimination Act 1991, s 10.
[2] Anti-Discrimination Act 1991, s 11.
[3] Anti-Discrimination Act 1991, s 15.
[4] Anti-Discrimination Act 1991, s 7(c).
This would include obliging employers to not remove casual staff from the roster on the basis of pregnancy, in circumstances where the employee wished to continue casual work. This has not happened here; the evidence before the Tribunal is that Ms Harvey was not removed from the roster, and was offered casual shifts following the news of her pregnancy reaching her employer, albeit not icing shifts, nor shifts of shorter duration that she admits she did not want. There is evidence that Ms Harvey declined to accept some of the shifts offered to her between the announcement of her pregnancy and 10 December 2010.
Following this period, from 10 December 2010 until 17 December 2010, Ms Harvey was on planned holidays and unavailable to work. She had intended to enjoy the theme parks in Brisbane with her partner, but then subsequently decided to cancel her holiday as she could not go on the rides whilst pregnant. She then told Donut King that they could roster her during this period. I do not consider Donut King’s declination to do so as evidence of any discrimination. On 20 December 2010, Donut King called Ms Harvey to ask whether she could work on 29 and 31 December, and Ms Harvey declined as she was “going to be out of town”. Donut King was also then closed for several days during the Christmas-New Years period.
Ms Harvey then contacted Donut King on 23 December 2010, and advised that she had returned from holidays and was now available. However, by this stage, the roster had already been prepared for the period until 23 January 2011. Having been recently away on holidays, and having declined at least two shifts, it is entirely understandable why Donut King did not roster Ms Harvey on for this period. In any event, following significant flooding in North Queensland, the Donut King shop engaged in limited trading for the period between 31 December 2010 and 14 January 2011.
During their telephone conversation on 23 December 2010, Ms Barclay asked Ms Harvey to call back on 29 December 2010, after she had a chance to discuss the next roster with Ms Davison. Ms Harvey did not call back until 10 January 2011, nearly two weeks after she was asked to ring. It is unsurprising that Donut King did not roster Ms Harvey on for any shifts in these circumstances.
Ms Harvey filed her complaint in the Anti-Discrimination Commission on 24 January 2011. Whilst I am not critical of Ms Harvey’s having been so quick to act in response to what she genuinely believes to be discrimination, her efficiency makes it extraordinarily difficult to conclude that she has been discriminated against. This is in part due to her casual employment, and also her admission that she may have lost hours as “there was just no shifts they could allocate me”. This is not a set of circumstances where Ms Harvey was ready and willing to undertake the shifts that she was offered; rather the evidence establishes that during the period where Donut King could potentially have discriminated against her, Ms Harvey was largely unavailable, or the Donut King shop was not open either due to the Christmas holidays, or flooding events. Ms Harvey’s complaint arrived hot on the heels of these events, and there is simply no period of time that Donut King has been unable to explain its reasons for having not rostered Ms Harvey on, in non-discriminatory terms.
It is a well accepted matter of common sense that as a casual employee, one will enjoy significantly more hours if they are available for work, and easy to contact. During the period in question here, I find that Ms Harvey was neither. This is not to say that when she was available, that Ms Harvey was not a good worker. However, Donut King’s conduct can not be seen to be discriminatory in circumstances where they continued to offer Ms Harvey work, and she refused. This is a case where the casual employment relationship has withered on the vine as Ms Harvey was simply not easy to roster, at least during the period in question.
Ms Harvey was not discriminated against
Whilst I accept that it was reasonable that another Donut King staff member undertook Ms Harvey’s icing shifts, I am not entirely convinced that the icing of the donuts is a “genuine occupational requirement[5]” of the role of shop assistant. I am also not entirely clear whether Ms Harvey confirmed that was unable to undertake some icing during shifts later in the day.
[5]It is not unlawful for an employer to impose genuine occupational requirements for a position – Anti-Discrimination Act 1991, 25.
In any event, there is no need for me to address the issue of whether icing is a genuine occupational requirement of the shop assistant role at Donut King. In order to establish that discrimination has happened here, Ms Harvey must first establish that the employer’s conduct was “on the basis” of her pregnancy.[6]
[6] Anti-Discrimination Act 1991, s 7(1).
Donut King did not decline to roster Ms Harvey on the basis of her pregnancy; it declined to roster her on the basis of her unavailability, desire for longer shifts only, difficulties communicating with, and lack of hours for casual employees generally, in the period she complains of.
For these reasons, I dismiss Ms Harvey’s complaint of discrimination against both respondents.
0
0
1