McIntyre v Hastings Deering (Australia) Ltd
[2013] QCAT 695
•20 December 2013.
| CITATION: | McIntyre v Hastings Deering (Australia) Ltd & Anor [2013] QCAT 695 |
| PARTIES: | Nicole Lynette McIntyre (Applicant) |
| v | |
| Hastings Deering (Australia) Ltd (First Respondent) Dean Hiskens (Second Respondent) |
| APPLICATION NUMBER: | ADL097-12, ADL101-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 15, 16 July 2013 and 12 September 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member A Fitzpatrick |
| DELIVERED ON: | 20 December 2013. |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | It is ordered that: 1. The applications are dismissed. 2. The injunction made on 14 September 2012 cease to have effect from the date of this Order. 3. The respondents file and serve any submissions in relation to costs by 28 January 2014. 4. The applicant file and serve any response in relation to costs by 11 February 2014. |
| CATCHWORDS: | Anti-discrimination – indirect discrimination – family responsibilities – imposition of roster – whether term reasonable – victimisation Anti-discrimination Act 1991 ss 11, 129 Catholic Education Office v Clarke [2004] FCAFC 197 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Nicole Lynette McIntyre represented by Ms N Rudland of Counsel, instructed by Maurice Blackburn, Lawyers of 170 North Quay, Brisbane |
| RESPONDENT: | Hastings Deering (Australia) Ltd and Dean Hiskens represented by Mr J McLeod of Counsel instructed by Allens, Lawyers of 123 Eagle Street, Brisbane |
REASONS FOR DECISION
This matter involves two complaints made pursuant to the Anti-Discrimination Act 1991 (the Act). The first complaint, in proceeding ADL101-12, is that the applicant Ms McIntyre has suffered indirect discrimination on the basis of family responsibilities in relation to her employment with the first respondent, Hastings Deering (Australia) Ltd, within the meaning of section 11 of the Act. The second complaint, in proceeding ADL097-12, is that Ms McIntyre has been the subject of victimisation by the respondent Mr Hiskens in breach of section 129 of the Act. The two matters have been heard together.
Hastings Deering is a company which sells, services and supports Caterpillar heavy equipment used in the mining, construction, forestry, agricultural, materials handling and government sectors. In Queensland it operates facilities in a number of centres, including in Mackay.
Mr Hiskens was at the relevant time employed by Hastings Deering as an Infrastructure and Support Manager at the Hastings Park facility, Caterpillar Drive, Paget, Mackay.
Ms McIntyre is a Registered Nurse. She commenced employment with Hastings Deering on 21 November 2011 as a Health and Safety Advisor at Hastings Park. At the relevant time Ms McIntyre reported to Mr Hiskens.
Evidence and findings of fact – indirect discrimination
Ms McIntyre is a single mother with the sole financial and physical care of her two daughters aged five and two as at the time of the hearing.
Ms McIntyre was employed pursuant to a written contract of employment dated 4 November 2011. Relevantly she was engaged Monday to Friday, 38 hours per week plus reasonable overtime. Clause 4 of the contract provides that the company may alter her roster and work hours in line with operational requirements after giving the appropriate notice.
I accept Ms McIntyre’s evidence that she raised her family responsibilities with Mr Brendan Webb, Area Manager, when she was interviewed by him for the role. Although denying that Ms McIntyre told him she required family friendly hours and that she was a single parent, Mr Webb acknowledged in cross examination that he told her the organization was family friendly. He acknowledged that Ms McIntyre told him she did not wish to work in the public health system because it did not accommodate family responsibilities and that although she could earn more in public health the hours of work were more important to her. He acknowledged that he told her compared to public health she would not have to regularly work weekends or public holidays.
Ms McIntyre’s usual work pattern was Monday and Friday, 7am to 5pm; Tuesdays, Wednesdays and Thursdays, 9am to 3.30pm. She was allowed flexible start and finish times and worked additional hours to meet operational requirements.
I accept Ms McIntyre’s unchallenged evidence that her major responsibilities included:
· co-ordinating and performing medical assessments for new and existing employees;
· coordinating and providing first aid services to employees;
· managing and monitoring the rehabilitation of injured workers;
· creating, developing and progressing graduated return to work programs for injured workers;
· coordinating and providing services such as flu shots, hearing tests and appropriate referrals for the treatment of individual health issues;
· participating in the development of health and safety policies and procedures for each department of Hastings Deering, including in response to health and safety issues raised by departments;
· maintaining thorough and confidential medical records for employees and prospective employees; and
· attending health and safety meetings with the health and safety team, as well as other departments, to discuss and address ongoing safety issues.
I accept Ms McIntyre’s unchallenged evidence that in terms of her qualifications as a registered nurse she is limited in the care she can provide onsite, to first aid. In particular she is unable to administer medication. In the event of an accident, reliance is placed on an ambulance being called and employees trained in first aid. 17 employees working across all shifts at the facility are trained in first aid.
I accept that as part of Ms McIntyre’s role she is often required to be offsite to attend medical appointments or rehabilitation assessments with injured workers or to perform other tasks associated with her work.
Mr Hiskens admitted that there was a recognized need for at least one additional Health and Safety Advisor at the Hastings Park site due to the work load involved in the role.
In May 2012, a change to Ms McIntyre’s working hours was required by Mr Hiskens. He developed a roster which would involve 2 nurses working the following rotating roster:
· nurse 1 would work 8 days straight, including weekends and public holidays from 6 am to 4 pm.
· nurse 1 would then have 6 days off.
· nurse 2 would start her roster on an overlap day, being the 8th day, and work for 8 days straight from 8.30 am to 6.30pm.
· nurse 2 would then have 6 days off.
· nurse 1 would resume work on an overlap day, being the 8th day and work for 8 days from 8.30 am to 6.30 pm.
· nurse 2 would resume work on an overlap day, being the 8th day and work for 8 days from 6 am to 4pm.
Effectively Hasting Deering would have a Health and Safety advisor engaged in a block of 15 days from 8.30am to 6.30 pm then a block of 15 days from 6 am to 4pm, repeating throughout the year.
The change was sought to be implemented by Mr Hiskens because of a request from the then Area Service Manager, Mr Craig Freeman and Mr Hiskens’ superior, Mr Webb.
Mr Freeman’s statement of evidence, dated 11 July 2013 (Exhibit 23) records that he told Mr Hiskens and Mr Webb that he required nursing coverage at the Hastings Park site 7 days per week to reflect the 7 day operations of the site.
At the hearing Mr Freeman elaborated on that evidence and said that he asked for coverage by a nurse from 6am to 6pm for 7 days a week, when the high risk work is done and when most of the workforce is present.
The background to the request is that between April and May 2012, the Hastings Park site commenced operating on a 24 hour 7 day a week basis. Also, in February and April 2012 there were two major incidents involving workers losing fingers. One incident occurred at 9pm at a different site in Mackay. The other incident occurred between 5 and 6pm at Hastings Park when no nurse was present.
Mr Freeman said that he requested extended cover because he thought given the number of people on site and the two major incidents that 1 nurse was inadequate and that extended nursing coverage was required. He acknowledged that employees with first aid training are trained to deal with bleeding and shock and to administer CPR, however he thought a nurse was more qualified to deal with serious incidents. Mr Freeman was not aware that a nurse could not administer medication or insert a cannula to administer medication.
Mr Freeman agreed in cross examination that accidents can happen at any time of the day or night. His evidence is that he was not seeking 24 hour coverage.
Mr Hiskens evidence under cross examination was that there was no discussion with Mr Freeman or Mr Webb in relation to the hours of work required, just that work over 7days was required.
Mr Hiskens said that he reviewed rosters for 7 day coverage and a 9.5 hour day came out of an 8 day on 6 day off roster. He acknowledged that the day would in fact be 10 hours because the nurse would be expected to remain on site during a half hour lunch break, because if there was an accident during that time she would be required to attend.
Mr Hiskens said under cross examination that he could not recall if he asked Ms McIntyre what she ordinarily did in the course of a day, other than a general discussion about work on a date he could not recall. He agreed that he did not formally sit down with Ms McIntyre to look at the needs of the workplace, before deciding on the roster.
Evidence was given by Ms Comollatti, the Health Advisor at the Hastings Deering facility at Port Curtis Road, Rockhampton. She fills the same role as Ms McIntyre.
Ms Comollatti works from 7am to 4pm Monday to Friday and covers the Port Curtis Road site as well as another facility site at Rockhampton. She said that some of the general workforce at Port Curtis work extended hours and some work weekends. A first aid qualified staff member provides coverage on weekends. At the other site an afternoon shift operates which she thought may finish at midnight.
Ms Comollatti said that she when she is ill or away the workplaces are covered by first aiders. The system has been operating in that way for eight years.
Evidence was given by Ms Paton, the Health Advisor at the Hastings Deering facility at Commercial Avenue, Paget. She fills the same role as Ms McIntyre.
Ms Paton works from 7am to 4pm, Monday to Friday and sometimes on Saturday or Sunday. She said that first aid officers are on site for every shift across each work site. The work sites employ approximately 550 people, predominantly trades people across a spread of hours from 6.30am to 11pm.
When first told by Mr Hiskens of the 9.5 hour shift, 8 days on 6 days off, Ms McIntyre told him that she could not work that arrangement because of her family responsibilities. Ms McIntyre then raised the matter with Mr Webb who suggested she put forward alternative suggestions.
On 23 May 2012 Mr Hiskens and Ms Curry (Mr Webb’s assistant) met with Ms McIntyre and she was given a new contract and position description which set out the change of hours. The contract provided for her existing base salary of $77,150 per annum, but with the addition of a roster allowance of $9,258 per annum. Mr Hiskens told Ms McIntyre that the change in hours was an operational requirement and if she could not comply with the required change, she needed to advise as soon as possible so ‘we can make the appropriate decisions’.
In early June 2012, Ms McIntyre gave a letter to Mr Webb, Mr Freeman and Mr Hiskens stating she could not comply with the change of hours due to her family responsibilities. The letter suggested alternative arrangements.
In mid June 2012 a further meeting was held with Ms McIntyre, Mr Hiskens and Ms Curry, when she was told she was required to work the changed hours.
On 9 July 2012 Ms McIntyre met with Mr Hiskens and reiterated that because of her family responsibilities she could not comply with the new work hours requirements.
On 16 July 2012, a meeting was held between Ms McIntyre, Mr Hiskens and Ms Rebecca Pace (Human Resources Advisor). Ms Pace gave Ms McIntyre a letter stating that due to the operational requirements of the company Ms McIntyre was required to work the roster of 9.5 hour shifts worked 8 days on - 6 days off, commencing from 10 September, 2012. It further stated that the offer would lapse in 10 days and the company would ‘not consider an employment relationship exists until receipt of the signed agreement’. Ms McIntyre was required to advise her response by 27 July 2012.
Ms McIntyre formed the opinion that because she could not comply with the change of work hours requirement that her employment would terminate on 10 September 2012 when the new arrangement was to come into effect.
Ms McIntyre gave evidence as to why she could not comply with the required roster. I accept her evidence that:
a) In relation to those parts of the roster which require a 6am start, Ms McIntyre would have to leave home at 5.30am. The child care facility she uses opens at 6.30 am. The earliest Ms McIntyre’s school age child can be dropped at school is 7.30 m.
b) In relation to those parts of the roster which require a 6pm finish, the latest she can collect her child from day care is 6.30pm and the latest she can collect her child from school is 6.00pm leaving no ability to take her daughter to after school activities.
c) There is no care offered on weekends and public holidays.
d) In order to cover child care for the mornings when she is rotated onto the early start and afternoons when she is rotated onto the late finish, a nanny would have to be engaged. Nanny services have a minimum 3 hour engagement.
e) Because of the rotating nature of the shifts and six days off consistent weekly hours of work could not be offered to a nanny or carer.
f) Ms McIntyre’s enquiries of all the nanny services listed in the Yellow Pages for Mackay, being 8 nannies and 2 agencies, indicated that it would not be possible to put a regime in place to cover the hours required, as a result of the roster.
g) Because it is not a once off request, Ms McIntyre could not ask friends to look after the children. Her former partner would not do so.
h) The cost of a nanny was calculated in her affidavit at $25 per hour. A nanny would be required for 81 - 82 hours per month at a cost of $2,050 per month. At the hearing Ms McIntyre said that the cost was in fact $33.00 per hour and that did not take into account rates for weekends and public holidays. No government subsidy is given for the cost of nannies.
i) The roster allowance would not cover the increased costs of childcare and she would be unable to meet her financial commitments from what was left of her wage.
j) The roster would eat considerably into her available time with her children.
On 26 July 2012 Ms McIntyre lodged a discrimination complaint to the Anti-Discrimination Commission and made an Application to the Tribunal for injunctive relief to maintain her employment until the discrimination complaint was resolved. On 21 August 2012 Ms McIntyre made a victimisation complaint to the Anti-Discrimination Commission.
On 14 September, 2012 His Honour Justice Wilson ordered that:
a) Hasting Deering and Mr Hiskens are prohibited from altering Ms McIntyre’s present hours of work in the manner set out in the letter dated 16 July,2012 until further order.
b) Costs reserved.
In cross examination Mr Hiskens said the he had very little experience in preparing rosters. He acknowledged that it was “possibly” a reasonable thing to have done to have worked out options with Ms McIntyre. He agreed that he did not look at any options to accommodate Ms McIntyre from May 2012 and that the only time he explored alternatives was during the time when he was developing the roster. He said that he at no time considered the Anti-Discrimination legislation. He made the recommendation for a 8 days on – 6 days off roster because he thought it best for the business. He did not speak to the Human Resources team about Ms McIntyre’s difficulties in meeting the roster.
Mr Webb agreed under cross examination that it would have been reasonable to give consideration to how Ms McIntyre’s needs could have been met.
On 10 September 2012 Ms Amanda Mahey commenced employment as a Health and Safety Advisor working Monday to Friday 8 am to 4.30 pm, including a lunch break.
Ms McIntyre went on annual leave for the period 14 September to 28 September 2012. She was deemed unfit to work on 18 October 2012 and has not returned to the workplace since that time.
From May 2013, two other Health and Safety Advisors began working an 8 days on – 6days off roster from 6am to 3.30pm.
Anti-Discrimination Act 1991
Section 6 of the Act provides that one of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work.
Section 7 of the Act prohibits discrimination on the basis of a number of attributes, including family responsibilities. “Family responsibilities” is defined to mean the person’s responsibilities to care for or support, relevantly, a dependant child of the person.
Section 9 of the Act prohibits direct and indirect discrimination.
This case is concerned with indirect discrimination. The meaning of indirect discrimination is set out in section 11 of the Act:
(1)Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose a term:
(a)with which a person with an attribute does not or is not able to comply; and
(b)with which a higher proportion of people without the attribute comply or are able to comply; and
(c)that is not reasonable.
(2)Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example –
(a)the consequences of failure to comply with the term; and
(b)the cost of alternative terms; and
(c)the financial circumstances of the person who imposes, or proposes to impose, the term.
(3)It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4)In this section –
termincludes condition, requirement or practice, whether or not written.
Section 15 of the Act provides that a person must not discriminate in any variation of the terms of work.
By section 204 of the Act Ms McIntyre must prove, on the balance of probabilities, that Hastings Deering contravened the Act, subject to section 205 which provides that Hastings Deering must prove on the balance of probabilities, that the term complained of is reasonable.
The term
The parties agree that the term sought to be imposed by Hastings Deering on Ms McIntyre is that she work an 8 days on – 6 days off roster during the hours of 6am – 4pm and 8.30 am – 6.30 pm.
Cannot comply with the term
Ms McIntyre must demonstrate that she cannot comply with the term because of her family responsibilities. I found Ms McIntyre to be an honest and forthright witness. I accept that she made every enquiry possible to see how she could arrange care for her children in order to work the roster. I accept that given the limited hours of childcare centres, the only alternative is care by a nanny. I accept that Ms McIntyre made a fair estimate of the cost of a nanny for her children. I am of the view that her estimate was very low as it did not take into account the cost of covering weekends, public holidays and school holidays. I accept that given the spread of hours and the chopping and changing from shifts with early starts to shifts with late finishes and gaps of 6 days every 8 days, that it was highly unlikely a person or persons would be found in a regional centre like Mackay to cover the hours needed. Indeed it is hard to imagine a work roster more difficult to comply with if one has the sole care of very young children.
I find on the basis of her evidence as to a lack of childcare centre services over the hours required, the lack of availability of a nanny to cover the hours required and the high cost of nanny services, that Ms McIntyre cannot comply with the term.
I reject the respondents’ submission that the roster allowance is of help to Ms McIntyre. I have accepted her evidence as to the cost of obtaining nanny services soon exhausting the allowance.
I reject the respondents’ submissions as to any positive benefits from having 6 days off as part of the roster. That simply makes it impossible to offer ongoing work to a nanny. Childcare centre service costs would continue whether used or not.
I reject the submission that one of the alternatives proposed by Ms McIntyre with a 6am start demonstrated she was able to work the roster proposed. That submission ignores the constant changing of start times and the 6 day gap which creates problems in obtaining care. I reject the submission that because Ms McIntyre was able to work to 5pm on her original roster that she must be able to work the hours of 6am to 4pm. The evidence was that the early start fell outside childcare centre hours. It was the late finish in the other shift which also fell outside childcare centre hours that created a problem.
I reject the submission that there is real doubt about the availability of care over the hours required. Ms McIntyre gave clear evidence of her enquiries in this regard. I accept her as an honest witness.
Higher proportion of people without family responsibilities would be able to comply
The respondents have made no submission as to whether a higher proportion of employees who do not have Ms McIntyre’s family responsibilities, would be able to comply with the proposed roster.
It is submitted by Ms McIntyre that the base group for the purpose of this exercise is comprised of people who work shifts including weekends and public holidays. I think the base group is more specific than that, and that it is comprised of people who work rotating shifts with differing start and finish times over the roster cycle.
It is submitted that the comparator group is single female parents with dependent children.
I am offered no statistical evidence in relation to these groups at the Hastings Point workplace. Instead I am asked to make an “inevitable inference” based on a common acceptance that a higher proportion of employees without family responsibilities are able to comply with requirements in relation to hours of work as compared to employees with family responsibilities. I am able to make that inference.[1]
[1]Queensland Health v Che Forest [2008] FCAFC 96.
I accept that it is appropriate in enquiries as to proportional compliance with a term to use common knowledge.[2]
[2]Edwards v Hillier & Educang Ltd t/as Forest Lake College [2006] QADT 34; Hickie v Hunt & Hunt (1998) EOC 92-910 at [16.17.10] – [16.17.12]; Mayer v ANSTO [2003] FMCA 209 at para 71; Howe v Qantas Airways Ltd [2004] FMCA 242; Escobar v Rainbow Printing Pty Ltd (No.2) [2002] FMCA 122 at [33]; Court v University of Western Sydney [2013] NSWADT 16; Maxworthy v Shaw [2010] FMCA 1014 at [145] –[151].
I am satisfied that Ms McIntyre has established that a higher proportion of people without her family responsibilities would be able to comply with the term imposed by Hastings Deering.
Is the term reasonable?
The respondents submit that the requirement to work 8 days on – 6 days off during the hours 6am – 4pm and 8.30am – 6.30pm was reasonable having regard to all the relevant circumstances of the case. They submit that the present case is one where a reasonable management decision has been taken based on operational requirements.
The respondents must prove on the balance of probabilities that the term is reasonable.
Ms McIntyre submits that the term is not reasonable.
Both parties are agreed as to the relevant principles to be applied in determining whether a term is reasonable and refer to State of Victoria v Schou[3]. I accept the authorities submitted to me by both parties as helpful guides. [4] I intend to amalgamate and summarize the principles as follows:
a) the test is an objective one which requires the nature and extent of the discriminatory effect to be weighed against the reasons advanced in favour of the term;
b) all the circumstances must be taken into account;
c) the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience,
d) in considering the reasonableness of a term an important factor is the presence of a logical and understandable basis for it;
e) in considering the reasonableness of the term one may ask if the term is appropriate and adapted to the performance of the work in question. Could the work be performed without imposing a term as discriminatory in effect as the one imposed? These are questions of fact and degree. Effectiveness in performing the work and the cost of not imposing the term or substituting another are relevant factors;
f) for an alternative to carry weight it must be equally suited or efficacious to the requirements of the job.
g) a court or tribunal should not seek to impose its will on management decisions, but rather make a finding as to whether the Act is infringed.
[3][2004]VSCA 71.
[4]Waters v Public Transport Corporation (1991) 173 CLR 349; Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 253; Catholic Education Office v Clarke [2004] FCAFC 197; Devers v Kindlian Society [2010] FCAFC 72; King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8; Tung v State of Queensland [2013] QCAT 251.
The respondents submit that the reality of the present case is that:
a) the 8 on – 6 off roster is founded in logic and operational requirements;
b) it enhances the ability to provide a safe work environment; and
c) it increases the efficiency of the delivery of workplace outcomes.
The respondents submit that there is no discriminatory effect from the term because Ms McIntyre proposed an alternative roster with a 6am start so she cannot now complain about that. Further her childcare costs have decreased because one child is now at school.
The respondents say that Ms McIntyre is seeking to permanently restrain Hastings Deering from implementing its preferred roster by requiring it to maintain the original roster. That would place impermissible limitations upon management discretion and should not be made.
Findings
To deal with the last of those submissions, I decline to order that Ms McIntyre’s original roster be permanently maintained. I accept the respondents’ submissions that to do so would interfere with management discretion to an unacceptable degree. I note that Ms McIntyre’s contract of employment enables her employer to alter her roster and work hours in line with operational requirements after giving appropriate notice. That does not mean however that the company is free to impose any roster and work hours it prefers. Any changes must be made in the context of what is lawful.
In relation to the submission that there is no discriminatory effect from the term, I disagree. I have found that Ms McIntyre cannot comply with the term. I have found that a higher proportion of people without Ms McIntyre’s family responsibilities would be able to comply with the term. Hastings Deering has at no time said that it will maintain her employment if she cannot abide by the term. It has not offered to explore other roles or rosters with her. In these circumstances it is probable that she will lose her job. That is the discriminatory effect of the term. That is what must be weighed up against the other factors in this case. For a sole carer of 2 young children that is a very serious consequence.
It is convenient at this point to deal with Ms McIntyre’s submission that during the pre-employment interview she was given assurances as to the hours of work in the role. I have found that during Ms McIntyre’s interview she was told by Mr Webb, that unlike the public health service, she would not have to work weekends or public holidays because the job being filled was a 38 hour week job, Monday to Friday. The job required to be performed only 6 months later is radically different, requiring regular weekend work and public holidays as well as work outside business hours. There is no doubt Ms McIntyre would not have accepted the job if she knew that was the extent of change likely to be made to the role. That said there is no reason why an employer cannot restructure its business to meet perceived business need if it is reasonable to do so and it follows a fair process of consultation, notice and compensation in accordance with the contract and the prevailing industrial legislation. These latter issues may be matters for the Fair Work Commission, not this Tribunal.
On balance I do not think Mr Webb’s assurances as to no weekend or public holiday work outweigh the employer’s prerogative to change the way in which work is performed at its workplace at a future time.
In relation to the respondents’ submissions that the 8 on – 6 off roster is founded in logic and operational requirements, I note the following evidence:
a) Mr Hiskens’ evidence in chief set out in his statements (exhibit 12) was that his objective in implementing the roster change was to:
i) support the growth of staff numbers at Hastings Park by;
ii) better align the delivery of services provided by qualified nurses with shift arrangement at Hastings Park to provide seven day coverage;
iii) to enable the large workload of the safety advisor nurses to be more successfully completed by staff; and
iv) to create a safer work environment.
b) Mr Webb’s evidence was that he was responding to industrial pressure in relation to safety issues and a request from Mr Freeman for increased nursing coverage, where it was thought nurses were the best qualified personnel on site to respond to safety incidents that result in injuries. He said that the matter took on greater urgency when 2 incidents occurred when no nurse was present.
c) Mr Freeman’s evidence also seems to be more heavily weighted around seeking to ensure nurses were onsite to respond to injuries, it being thought they were most qualified to do so. He was seeking coverage across 7 day operations and outside of business hours.
Mr Hiskens prepared a document in April 2012 which contemporaneously reflects his review of the need to increase staff and operating hours. The document is attachment “MDH4” to his first affidavit made on 8 August 2012.
The document records the extent of business expansion at Hastings Park and concludes that:
· Seven day coverage would be better for aligning support for the operational departments.
· The increase in workforce will increase the requirement for on board medical assessments, increase employee reviews and have a flow on effect with workcover and health education requirements.
· An additional nursing position had been budgeted for and would reduce the reliance on outsourcing temporary nursing requirements to cover times when the nurse is off site for work, leave or training requirements.
· To achieve 7 day coverage nurses would have to work on a roster.
· The 8 on – 6 off roster may provide the best compromise as it provides one day per cycle where both personnel will be on site for handover of information and to coordinate work for the coming period. The 8 and 6 roster would typically provide 9.5 to 10 hours of coverage per day by the nursing staff, with starting hours varied to cover shift start or change over during the roster cycle.
· The increased time on site due to the roster will align the nursing staff to the operations and allow greater alignment with work crews and will assist with providing educational training at PASS and toolbox meetings. The extended hours and weekend coverage will allow greater flexibility to schedule pre-employment medical assessments and to schedule health reviews of current staff.
I note Ms McIntyre’s criticisms of the proposal set out in her affidavit (exhibit 2), to the effect:
· The proposed roster does not meet the need of ensuring a nurse is present on site outside of business hours to meet the eventuality of an accident, because not all hours of work at the site are covered.
· There are trained first aid personnel on all shifts in the event of an accident.
· The only care which she can provide if an employee is injured, is first aid and to call the ambulance.
· All her work can be performed during business hours and most of her work needs to be performed during business hours.
· The 6 days off will negatively affect continuity of contact with contact officers, medical practitioners and employees.
These criticisms have some force.
It is appropriate to ask whether there are alternatives which do not have the same degree of discriminatory effect, which are just as efficacious and which could be implemented in a cost effective way. As stated by Justice Brennan in Waters v Public Transport Corporation, these are questions of fact and degree.[5]
[5] Waters, op.cit., at p.378.
In an effort to demonstrate her willingness to be flexible and after being requested by Mr Webb to do so, Ms McIntyre made two proposals for alternative means of addressing the company’s need for 7 day coverage and greater nursing coverage on site. One can conceive of other alternatives, however there is no further evidence before me.
Mr Hiskens’ evidence in cross examination was that he did not consider any other options after he had determined the 8 days on – 6 days off roster was appropriate.
In his statement of evidence, made 11 July 2013 (exhibit 12), Mr Hiskens criticizes Ms McIntyre’s proposals on the basis of cost and lack of coverage by nurses at given times. The evidence as to cost is very broad brush, with no supporting evidence. Nevertheless it is tolerably clear that if Hastings Deering is determined to implement 7 day coverage and Ms McIntyre does not work 8 days on and 6 days off that a third nurse would be required to cover a number of hours in the roster cycle. Ms McIntyre submits that for a company the size of Hastings Deering with its substantial turnover, those costs should not be a consideration. I reject that submission. It is not unreasonable for a company to organize its work in the most cost effective way.
As it transpires, an alternative roster has been implemented from May 2013. It is an 8 days on – 6 days off roster, however, the two nurses only work the early shift from 6 am to 3.30 or 4pm.
I draw from Ms McIntyre’s submissions that the fact no 7 day coverage was implemented until 2013 and no late shift to coincide with the start of the night shift has been implemented, suggests there was no real business imperative to work the extended hours or to provide 7 days coverage.
Ms McIntyre also points to the fact that her colleagues performing the same work at other sites do not work extended hours or 7days. They rely on employees trained in first aid to respond to accidents when they are not there.
This is a finely weighted case. Ms McIntyre has had her job threatened for a discriminatory reason. No attempt has been made to consult with her in relation to her workload and how alternatives could be trialled or implemented. The company has maintained the old hours of work for many months after first flagging the changed roster and once implemented, the new roster does not seek to cover the start time of the night shift. On any view of it the nursing coverage provided under the proposed roster or the new roster does not address the evinced desire of Mr Webb and Mr Freeman to have a nurse on site to attend to accidents which may occur at any time of the day or night or even across the spread of hours from 6am to 6pm when the most dangerous work is being performed. That desire may in any event be ill informed given that nursing care is limited to first aid which can be administered by properly trained staff and that appears to be recognized by other sites whose nurses do not work extended hours.
The evidence of Ms Mahey, the second nurse engaged by Hastings Deering who is now working the new roster, is to the effect that working outside business hours, including over the weekend allows enough quiet time to get through the work to be done. Her evidence was not that it was necessary that she be present on site over the weekend in the event of an accident or that any of the work could not be done during business hours or Monday to Friday working extended hours, if it was more fully resourced.
Plainly there was no consideration of the human implications of the company’s decision. Its method was to force Ms McIntyre to work the proposed roster, making it plain that there would be no contract of employment in place if she did not do so. The attempt to suggest that Ms McIntyre could work the roster if she wished and that she is being wilful and unreasonable is simply ignorant of the needs of young children and their demands on their mother. The submission is rejected.
However, whatever the failings of the company in its employee relations, and the perceived inadequacies of the proposed roster to meet the needs of the business, I find that Hastings Deering did have some logical and understandable basis for moving to an 8 days on – 6 days off roster, in order to provide 7 days coverage, as set out in Mr Hiskens’ April 2012 document.
The test I am to apply requires me to recognize that whether the proposed roster is reasonable rests on more than convenience to the company, but less than necessity.
I find that the desire to provide 7 days coverage by a nurse in order to align with 7 days a week work performed on the operational side of the business, is more than mere convenience. I am conscious that it is not the role of the Tribunal to interfere with legitimate business decisions taken on rational grounds. For these reasons, weighing an imperfect, but rational business decision, against the loss of a job by a sole parent of young children, I am compelled to find in favour of the respondents. I accept the respondents’ submission that the personal impact of the proposed roster on Ms McIntyre does not outweigh an otherwise rational term. The proposed roster is not so extreme or ill-suited to the work of the nurses at Hastings Deering that it cannot be justified. There is insufficient evidence before me of the range, cost and efficacy of alternatives to say that they are clearly preferable to the proposed roster to justify interfering in Hastings Deering’s business decision. I find that in all the circumstances the term was reasonable.
Conclusion
I find that the respondents have not infringed s 11 of the Anti-Discrimination Act. Their conduct does not amount to indirect discrimination.
Victimisation claim
Section 129 of the Act makes it unlawful for a person to victimise another person.
Section 130 of the Act provides that victimisation happens if a person does an act, or threatens to do an act to the detriment of another person, because, relevantly, the other person alleges a person has contravened the Act or makes a complaint under the Act.
Victimisation may be found to exist, even if a complaint of discrimination has not succeeded.
I accept the respondents submissions that in order for Ms McIntyre to be successful, she must show:
a) that a person has done an act or threatened to do an act;
b) the act is to the detriment of another; and
c) there is a causal nexus between any detriment suffered and the matters stated in section 130 of the Act.[6]
[6]TT & Ors v Lutheran Church of Australian Queensland District [2013] QCAT 48 at par 108; Wadsworth v Akers and Woolworths Limited t/as Big W Discount Stores [2007] QADT 17 at par 16.
I accept that in order to establish detriment, Ms McIntyre must establish she is placed ‘under a disadvantage of a matter of substance, or suffers a material difference in treatment which is real and not trivial’.[7] I accept that Ms McIntyre must do so on the basis of an objective, not subjective test.[8]
[7]Damiano & Anor v Wilkinson & Anor [2004] FMCA 891 at par 23; Wadsworth, op.cit., at par 31.
[8]Wadsworth, op.cit., at par 32.
Ms McIntyre raised her inability to comply with the term because of her family responsibilities in the meeting with Mr Hiskens on 23 May 2012. She lodged her Anti-Discrimination complaint on 26 July 2012 and her victimisation complaint on 21 August 2012. Ms McIntyre took leave between 14 September 2012 and 28 September 2012. She left on sick leave on 18 October 2013.
Ms McIntyre’s evidence is that since making complaints to the Anti-discrimination Commission, Mr Hiskens has excluded her from meetings, excluded her from performing her usual duties, reduced communication with her to being via another Health and Safety Advisor and prevented her from accessing professional development. She asserts that Mr Hiskens has also made comments about her to other employees and that the office was reconfigured to further isolate her within the team.
Mr Hiskens denies treating Ms McIntyre any differently to the way he treated her before her complaint.
Ms McIntyre called Ms Kimberley Heremia to corroborate her evidence. Ms Heremia was engaged as a Health, Safety and Environment Administrator for the period 27 August,2012 to 22 October 2012. I found Ms Heremia to be a credible witness. She gave evidence that she perceived a toxic atmosphere in the health and safety team as a result of Mr Hiskens treatment of Ms McIntyre. She gave examples of Mr Hiskens communicating predominantly with Ms Mahey who would relay information to her and to Ms McIntyre. I cannot however find anything in her evidence which would amount to serious acts of detriment meted out by Mr Hiskens to Ms McIntyre.
Ms McIntyre said that she told the human resources officer Ms Pace that she was feeling isolated and her work environment was hostile. Ms Pace could not recall the conversation.
It would be unnatural if Ms McIntyre and Mr Hiskens did not feel awkward and unhappy, given her complaint and the ensuing litigation. It was submitted by the respondents that there was some uneasiness but no victimisation.
I accept the respondents’ submissions that other than a subjective perception of being isolated and that her work atmosphere was hostile, Ms McIntyre could not point to any particular nasty or disparaging comment made to or about her. Her duties were not changed other than not being asked to induct Ms Mahey, which I find was not unreasonable. Ms McIntyre acknowledged that she was free to access Mr Hiskens at any time in relation to work. I am not satisfied on the evidence that there were regular health and safety team meetings held to which Ms McIntyre was not invited. I accept that just because Ms Mahey spoke regularly to Mr Hiskens, those conversations should not be construed as harmful to Ms McIntyre. In relation to reconfiguration of the office, I consider it to be a trivial matter. In relation to not attending the company’s health and safety conference at the Gold Coast, I note that under cross examination Ms McIntyre acknowledged that she agreed not to go because there was no cover for her role during her absence.
Although I do not doubt that Ms McIntyre felt isolated and that her work environment was uncomfortable after her complaint, I am unable to find that she was subjected to any substantial detrimental treatment by Mr Hiskens.
Orders
For the reasons set out in this Decision, I order that the applications be dismissed.
Given this order, the injunction made on 14 September 2014 should cease to have effect from the date of this order.
The respondents have reserved their position on making a submission as to costs pending the outcome of the proceeding.
The respondents must file and serve any application for costs by 28 January 2014. The applicant must file and serve any response by 11 February 2014.
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