Spyrou v The State of South Australia (the Department of Health and Ageing) - [2013] SAEOT 11

Equal Opportunity Tribunal
(District Court Administrative and Disciplinary Division)
SPYROU v THE STATE OF SOUTH AUSTRALIA (THE DEPARTMENT OF HEALTH AND AGEING)
[2013] SAEOT 11
Judgment of His Honour Judge Costello, Member Ms H Jasinski and Member Mr D Shetliffe (ex tempore)
6 November 2013
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION
Complaint pursuant to Equal Opportunity Act 1984 alleging discrimination on the ground of caring responsibilities – complainant alleged that the respondent discriminated against her by denying her flexible working arrangements, harassing her to start work at an earlier start time and failing to discipline employees who discriminated against her – nature of complainant’s particular position dictated that she could not commence work after 9:30 am – complainant not treated less favourably than others in similar or identical circumstances – respondent’s requirement to start no later than 9:30 am not unreasonable in the circumstances - no jurisdiction to consider failure to discipline allegation.
HELD: Complaint dismissed.
Equal Opportunity Act 1984 s 5, s 6, s 85T, s 85V, referred to.

SPYROU v THE STATE OF SOUTH AUSTRALIA (THE DEPARTMENT OF HEALTH AND AGEING)
[2013] SAEOT 11
Introduction

This is a complaint by Ms Spyrou, the complainant, alleging discrimination against her by the Department of Health and Ageing on the ground of caring responsibilities, contrary to the Equal Opportunity Act 1984 (’the Act’).
The structure of the Act as it relates to discrimination on this ground relevantly provides as follows:
85V   Discrimination against applicants and employees
(1)   ...
(2)   It is unlawful for an employer to discriminate against an employee -
(a)in the terms or conditions of employment; or
(b)by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or
...
(d)by subjecting the employee to other detriment.
85T    Criteria for establishing discrimination on other grounds
...
(6)   For the purposes of this Act, a person discriminates on the ground of caring responsibilities -
(a)if he or she treats another unfavourably because of the other's caring responsibilities or proposed caring responsibilities; or
(b)if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and –
(i)    the nature of the requirement is such that a substantially higher proportion of persons without caring responsibilities comply, or are able to comply, with the requirement than of those with caring responsibilities; and
(ii)   the requirement is not reasonable in the circumstances of the case;
5Interpretation
...
(3)   For the purposes of this Act -
(a)a person has caring responsibilities if the person has responsibilities to care for or support -
(i)    a dependent child of the person; or
(ii)   any other immediate family member of the person who is in need of care and support; and
6Interpretative provisions
...
(3)   For the purposes of this Act, a person (the discriminator) treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance.
Between 12 May 2008 and 19 March 2012, the complainant was employed as the personal assistant to the Director - Public Health, Public Health Unit, Department of Health and Ageing.
In late 2008, the complainant’s father suffered a broken hip following a fall. As a result, he was immobilised and his ability to care for himself compromised. Thereafter, in conjunction with her brother, the complainant undertook the role as her father’s carer.
There is no dispute that for the purposes of the Act, Ms Spyrou had ‘caring responsibilities’ for her father.
Background to the Complaint
Although what follows is a narrative of the events leading up to the making of the complaint, it also contains, where indicated, our findings of fact on some of the issues.
After her father’s initial fall, the complainant sought permission to commence work later than the normal start time of 8.45 a.m. in order to allow her to ‘get her father ready’ in the morning after her brother had attended to him during the night hours. The respondent in the person of Dr Buckett, the director of the Public Health Unit, was initially sympathetic to the complainant’s need to start work later and acquiesced in her starting work, at times as late as 10 a.m. Indeed, at an early stage, this appears to have been the subject of some discussion and informal agreement.
While this was accommodated, it was not without its share of difficulty on occasions. On those occasions, the absence of the complainant (whose presence was generally necessary in order to attend to certain activities in preparation for morning meetings), meant that other staff had to take over. This in turn led to stresses and tensions in the work area, due to uncertainties as to when the complainant would arrive.
As a result, in or about September 2011, Dr Buckett restructured the office by appointing a Ms Casserley, as office manager and Ms Spyrou’s line manager. At that time, there was also a meeting (on 11 September 2011) conducted between Dr Buckett, Ms Casserley and Ms Spyrou, at which, amongst other things, her start times were discussed.
Whilst details of exactly what was said at that meeting remain unclear, we are satisfied that Dr Buckett and Ms Casserley indicated to Ms Spyrou that they would like her to commence earlier than 10 a.m. and probably by 9.30 a.m. at the latest. Ms Spyrou agreed to trial (to use her words) an earlier start time, although she did inform them that she did not believe that it would ‘work out’, due to her belief that she would not be able to get her father moving any earlier in the morning.
We pause here to observe that (after the initial discussions following her father’s fall) her practice of late arrivals appears to have developed, over the ensuing period of some three years, in a somewhat ‘ad hoc’ fashion, as a result of which the complainant may have been led to believe that a 10 o’clock start was her entitlement rather than a privilege. Thereafter, when the subject of her start times was raised by either Dr Buckett or Ms Casserley, this came to be viewed by the complainant as an infringement of her rights and an unnecessary imposition on her carer role.
Without wishing to be overly critical of the respondent, we feel that had the issue of the complainant’s start time been formalised and structured following a period of discussion, this dispute may never have arisen.
After the meeting of 11 September, the complainant (as she predicted) was unable to consistently comply with the agreed start time of 9.30 a.m. On 6 March 2012, prior to an important weekly meeting, the complainant arrived at about 9.58 a.m. Papers for the meeting had apparently not be prepared, distributed or copied, which Dr Buckett regarded as both unprofessional and embarrassing. This led to an incident on 8 March 2012, where Dr Buckett again sought to raise the question of the complainant’s start time.
We accept that the incident on 6 March may well have been the ‘straw that broke the camel’s back’. We are satisfied that on 8 March 2012, Dr Buckett was agitated and emotional and raised his voice, upsetting the complainant.
Again, we feel that, had more definite arrangements been put in place with the complainant, such an incident may not have arisen. In so saying, we accept that Dr Buckett and Ms Casserley may have been well intentioned. However, this was a case where a firm handling was necessary, rather than an overly benevolent one.
The Evidence
The complainant gave evidence and called four witnesses Ms Forel, Ms Williams, Ms Wildgoose and Ms Sawford.
We accept that the complainant was an honest and forthright witness. The four witnesses who gave evidence in support were largely unhelpful in that they gave evidence of different employment situations or of experiences of different flexi hours or of employment concerned with different classifications.
Dr Buckett and Ms Casserley gave evidence for the respondent. As with the complainant’s witnesses, we accept them as witnesses who were honest and forthright.
What emerged from the evidence of Dr Buckett and Ms Casserley, which evidence we accept, was that the complainant’s role in the organisation was a special one. It required her to be available, particularly in the mornings and prior to 9.30 a.m., in order for her to be in a position to react to a number of possible situations which might require Dr Buckett’s day to be reorganised. Whilst it was a role where flexibility was possible and start times beyond 9.30 a.m. also possible, this was acceptable only as an exception and even then only with advanced notice.
In this way, we perceive her position to be fundamentally different from some of the other administration roles mentioned during the evidence where greater flexibility was not only possible, but implemented for those employed in such roles.
Against that background we now turn to consider the gravamen of the complaint.
Discussion
There would appear to be three strands or allegations to the complaint. First, discrimination on the basis that the complainant was denied flexible working arrangements. As to this allegation, we are not satisfied that the complainant has established that she has been treated less favourably than a person in identical or similar circumstances without such caring responsibilities. In this respect we accept the evidence of Dr Buckett that a person without her caring responsibilities would have been required to start before 9 o’clock and certainly not at 9.30 a.m. or later. Similarly, we are not persuaded that given the peculiar nature of her position, a requirement that she start no later than 9.30 a.m. was other than reasonable.
In this respect, we accept that the word ‘reasonable’ in s 85T(6)(b)(ii) involves a consideration of not only the carer’s needs but also the needs of the employer to ensure, amongst other things, a productive and efficient office unit.
Secondly, the complaint alleges discrimination constituted by persistent harassment, bullying and abuse in the regular raising with the complainant of the issue of an earlier start time and the portraying of her later starts as poor work performance.
As we said earlier, the inaction of the respondent (however well-meaning) would appear to have lulled the complainant into a belief that she was entitled to a 10 o’clock start. Had it been handled differently and in the manner adverted to earlier, the complainant in all probability would not have perceived a reasonable request for her to start earlier in the way she did and certainly not as harassment or bullying or abuse.
Despite our view that it could have been better handled, we do not regard the regular reference to starting earlier as either unfavourable treatment or unreasonable.
The third allegation of discrimination relates to a failure by the respondent to discipline Dr Buckett and Ms Casserley. In our view this allegation falls outside the parameters of the initial complaint and cannot be considered by the Tribunal.
Having said that, if we had had jurisdiction to consider this allegation we do not believe that there is any evidence to support it given the findings of the Quark investigation, even though we agree that that investigation looks to have been deficient in a number of respects.
For these reasons we dismiss the complaint.