Ram v Yes Distribution Pty Ltd
[2012] QCAT 605
| CITATION: | Ram v Yes Distribution Pty Ltd and Anor [2012] QCAT 605 |
| PARTIES: | Lolita Ram (Applicant) |
| v | |
| Yes Distribution Pty Ltd Robert Ferguson (Respondent) |
| APPLICATION NUMBER: | ADL127-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 24 September 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen, Member |
| DELIVERED ON: | 27 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The complaint is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – complaint of unlawful discrimination at the workplace on the basis of parental status and family responsibilities – complainant told to transfer or accept redundancy – restructuring of position was for legitimate business purposes – poor human resource management by respondent, but complaint dismissed |
APPEARANCES and REPRESENTATION (if any):
The parties were self-represented.
REASONS FOR DECISION
This matter involves a complaint of discrimination by Mrs Lolita Ram on the grounds of parental status and family responsibilities against her former employer, Yes Distribution Pty Ltd, and a partner in Yes Distribution, Mr Robert Ferguson.[1]
[1] Anti-Discrimination Act 1991, sections 7(1)(d), 7(1)(o), 11 and 15(1).
The complaint was referred to QCAT by the Anti-Discrimination Commission (Qld) on 15 November 2011, pursuant to s 164A of the Anti-Discrimination Act 1991.
In essence, Mrs Ram complains that Yes Distribution constructively dismissed her from her position as a full-time sales representative, by forcing her to accept a transfer from Cairns to Townsville, in circumstances where Yes Distributions was aware that she had family commitments that would preclude her from relocating. It is not disputed that Yes Distributions was aware that Mrs Ram had children and a husband who worked shift work, prior to her becoming a full-time employee.
As an initial matter, I note that much of both parties’ material relates to what might be collectively referred to as “employment performance” issues. I do not consider any of this material to be particularly relevant, here, and have therefore not outlined this evidence. At the hearing, Yes Distributions indicated that it did not take issue with Mrs Ram’s work performance; rather, Yes Distributions argued that there was a legitimate, economic basis for its reshuffling of sales areas that resulted in Mrs Ram’s Cairns’ based position being made redundant.
Restructuring Mrs Ram’s position was a legitimate business decision
The parties agree that Mrs Ram’s employment with Yes Distribution commenced on 1 December 2009, with Mrs Ram working as a part-time sales representation in Cairns. In June of 2010, the parties agree that Mrs Ram approached Yes Distributions asking to be employed full time.
Yes Distributions agreed to employ Mrs Ram full-time, provided that she met certain sales goals and agreed to travel to Townsville every five weeks. In Mr Ferguson’s statement, he explains that it was essential for Mrs Ram to cover the Townsville area, as otherwise a full-time position was not viable.
Ultimately, to make the region profitable, Yes Distributions says that it needed to make a commercial decision to restructure North Queensland, and have one sales person only. Mr Ferguson says that it became necessary to have an employee devote more time to Townsville, and that it also became apparent that Cairns only required a part-time person.
Mr Ferguson says that he asked Mrs Ram what suggestions she had to restructure her work, but got no response. This evidence conflicts with Mrs Ram’s evidence – she says that she received a phone call from Yes Distributions asking her to choose between redundancy or relocation to Townsville on 7 July 2011, and was given 26 hours only to make a decision. Whilst the parties are in conflict on this point, ultimately, there is nothing that turns on which version is correct.
In the absence of a response, Yes Distributions then determined that it would be best to have one employee, based in Townsville, who would service Cairns and Townsville, plus Mackay to the south. Yes Distributions offered Mrs Ram the restructured position on more than one occasion during the period from mid-June to early July, and also offered to pay her $3,000.00 to cover moving expenses. I accept the evidence given by Yes Distributions that the position held by Mrs Ram was restructured.
Mrs Ram was unable to accept the restructured position, as it would have also required her husband and children to relocate. The inability of an employee to transfer, for the reason that they would have to move family, does not automatically mean that the employer has engaged in unlawful discrimination. It would be fair though to say that regardless of the outcome here, from a human resources perspective, the manner in which Mrs Ram’s redundancy was handled could have been improved. For example, there is little point, at least in my view, in focussing on the work performance aspects of an employee’s performance, if the redundancy is for operational reasons. In doing so, Yes Distributions perhaps left Mrs Ram with a feeling that she was being kicked on her way out the door. This is not necessary, nor constructive, when an employer wants to make a position redundant. It would have been preferable for the discussions to have focussed on the issues that became apparent during the hearing; namely that there was legitimate reasons based upon the market and need to travel in order to make the position centered in Townsville.
Had Mrs Ram been treated differently by her employer here, she may not have drawn the conclusions she has in relation to unlawful discrimination. I accept that Mrs Ram has a genuinely held belief that she has been the victim of unlawful discrimination, as opposed to ineffective human resource management.
Decision
This is a claim of “indirect discrimination”[2]. In short compass, Mrs Ram alleges that Yes Distributions imposed upon her a term (to transfer to Townsville or be made redundant) with which she could not comply, and with which a higher proportion of people without family responsibilities, and who were not parents, could comply. I accept that it would be more difficult for employees with children and responsibilities to accept a transfer.
[2] Anti-Discrimination Act 1991, section 11.
However, finding that “indirect discrimination” is unlawful is a three-step process. Whilst Mrs Ram satisfies the first two steps of the process discussed above, she does not satisfy the third-step, which is that the term (here, the transfer) is not reasonable.
I consider it to have been reasonable for Yes Distributions to restructure its North Queensland sales territory, and determine to have one employee who would service Cairns, Townsville and Mackay. I note that Yes Distributions has paid to Mrs Ram the redundancy payment she was entitled to in the circumstances.
Yes Distributions explained that it was no longer financially viable to maintain the position with Mrs Ram working from Cairns. The complaints that Yes Distributions makes with respect to Mrs Ram being unable to meet sales goals and targets support a conclusion that it was necessary for them to take steps to make the position more profitable. One of the complaints made by Yes Distributions was that it was necessary for whoever was in the position to be able to grow the Townsville sales, and that this required more of a presence. I accept the evidence on these points.
Mrs Ram complains that she should have been offered a part-time position based in Cairns. Requiring an employer to employ 2 part-time employees, in circumstances where it is apparent that they want one person to perform the role, is not a condition that the Tribunal can impose upon Yes Distributions, in these circumstances. Mrs Ram was a full-time employee, and her case before the Tribunal was in relation to her being made redundant. The Tribunal should, in my view, be reticent to tell employers how to structure business operations; rather, the role of the Tribunal is to determine whether the employment as structured runs afoul of the Act.
For these reasons, I find that Mrs Ram has not been unlawfully discriminated against on the basis of parental status and family responsibilities in the area of employment. However, I think that Yes Distributions handled her redundancy poorly, and may have avoided this matter by having in place better human resources communication channels.
Order
The complaint is dismissed.
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