Managing Diversity: Legal Case Study

IRHR3035 – Managing Diversity

Legal Case Study

Sam Garnham – 3129691

Due Date: March 28 @ 11:59pm

Tutorial: Monday 2 – 3pm

Part 1
Due to the nature of Mel’s dismissal, she should file for unfair dismissal to the Fair Work Commission, Australia’s national workplace relations tribunal. Mel will claim constructive dismissal, with unfair dismissal the dismissal-based claim. For cases in New South Wales, which is where the situation occurred Mel can refer to the Anti-Discrimination Act of NSW, however, the federal Sex Discrimination Act also encompasses relevant legislation, and this Act should be Mel’s primary focus. In order to make an unfair dismissal remedy application an employee must be covered by the national unfair dismissal laws and be eligible to make an application. As Mel was employed by a private enterprise in New South Wales, she is eligible to file an application. Mel needs to have lodged her application within 14 days of the dismissal coming into effect. She must also prepare any relevant information for future reference and claims. It would be wise for Mel to seek some sort legal representation, to ensure the application is appropriately filled out.
“The key steps involved in the unfair dismissal application process are: 1. Employee lodges application.
2. The application is checked to ensure it is complete and valid.
3. Employer is notified of the application.
4. The Commission conciliates the application to try to have the parties resolve it amongst themselves.
5. An unresolved application is determined by the Commission following a conference or hearing.” (Fair Work Commission, 2013)
Part 2
Issue
Has Mel been unfairly dismissed under the Sex Discriminations Act (1984) or the Anti-Discrimination Act (1997), as a result of her pregnancy.

Laws/Rules
Relevant legislation in determining unfair dismissal can be found under sections 5 (s5) and 7 (s7) of the Sex Discrimination Act (1984) and under section 24 (s24) of the Anti-Discrimination Act (1997)
Under s5 of the Sex Discrimination Act, it is stated that: (1) A person discriminates against another person on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person;
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
As the issue in the case revolves around sexual discrimination on the basis of pregnancy, s7 of the Sex Discriminations Act provides more specific legislation as it is concerned with discrimination on the ground of pregnancy or potential pregnancy. This section of the Act states that: (1) A person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman's pregnancy or potential pregnancy if, because of: (a) the aggrieved woman's pregnancy or potential pregnancy; or (b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or (c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant;
The discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant. (2) For the purposes of this Act, a person discriminates against a woman on the ground of the aggrieved woman's pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are pregnant or potentially pregnant.
Under both s5 and s7 of the Sex Discrimination Act (1984), Mel must prove that she has been discriminated against on the basis of her pregnancy, a characteristic that appertains specifically to women.
Section 24 of the Anti-Discrimination Act (1997) also provides relevant legislation as it focuses on discrimination on the grounds of sex. It states that: (1) A person discriminates against another person on the ground of sex if, on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(1A) For the purposes of subsection (1) (a), something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.
Relevant cases to be considered in assessing Mel’s cause include: * Thomson V Orica Australia (2002) * Howe V QANTAS Airways Ltd (2004)
Apply
Through applying the results of the relevant cases and the legislation outlined in the relevant Acts to the facts of the case, the chances of Mel’s claims for constructive dismissal can be determined.
As Mel has not been discriminated against purely on the basis of her gender, under s5(b) of the Sex Discrimination Act (1984), it must be proved that Mel was discriminated against on the basis of a characteristic that appertains generally to women, in this case, pregnancy. Therefore, should Mel be able to prove discrimination under any of the subsections of s7, a section related directly to pregnancy, she would be deemed to have been sexually discriminated against under both s5 and s7 of the Act. (1) a) A person will be seen to have discriminated against a woman on the grounds of pregnancy if the aggrieved is treated differently as a result of the pregnancy. In the case, there are a number of situations where Mr Tenshus treats Mel differently, all of which occur after Mel notifies Mr Tenshus of her pregnancy. One such scenario was the moving of Mel from debtors, back to the creditors, as he apparently feared her falling from the ladder. While this form of different treatment may on the surface seem a necessary precaution, Mr Tenshus did not approach Mel on the issue, leaving her no choice in the matter. However, the most prevalent discrimination occurs through Mr Tenshus push for Mel to cut back to part-time just weeks after revealing her pregnancy. Despite Mr Tenshus’ claims in the attachment that Mel agreed that lowering her hours would be appropriate, she had given no intention of going back to part-time work in the short term. Even when Mel reiterates her desire to continue working full time, she is subjected to continued meetings and questioning. Mel claims to have been asked about 5 times in a month when she would be going back to part-time, with her only being about 2 months pregnant at this stage. This caused her to feel pressured and stressed, the reason for her resignation. In Thomson V Orica Australia (2002), Thomson was ultimately offered a lesser position following her pregnancy. This relates to the situation with Mel whereby she has been pressured to drop back from full to part time work (a lessor position/role) shortly after revealing her pregnancy. In Thomson’s case, the Federal Court ruled her to have been discriminated against, suggesting that Mel too has grounds to claim discrimination under this section of the Act.
b) Mel also has grounds to claim discrimination against Mr Tenshus on the basis of a characteristic that appertains generally to pregnant women. In the case, Mr Tenshus cites eating at her desk as a contributor to her poor performance, despite not being able to give an example of it happening. As the need for Mel to eat was to counteract her morning sickness, a characteristic that appertains to pregnant women, his unwillingness to allow her to do such a thing discriminates against this characteristic. This is supported by the Howe V QANTAS Airways case ruling, where Howe was ruled to have been discriminated against after being denied part-time work. She rightfully claimed the need to care for her young children being a characteristic particularly appertaining to women.
While Mr Tenshus may have treated any women in the same way regarding the eating issue, he would be expected to allow Mel some leeway given her situation. His treatment was certainly far less favourable in attempting to pressure Mel into cutting back to part-time work. It would be assumed that other female employees would not have been called in so frequently for performance reviews, nor had their performance questioned over misdemeanours for which there was no evidence. The Thomson V Orica findings support the notion and existence of less than favourable treatment. (2) Discrimination will also be concluded to exist if the behaviour of the discriminator disadvantages the pregnant women. In the case, Mr Teshus’ push for Mel to cut back to part-time work and the resultant creation of pressure and stress leading to what Mel claims to be constructive dismissal sees her out of a job, a clear disadvantage. This is a similar scenario to the Howe case, where Howe was prevented from working part-time, with her disadvantage being an inability to look after her children. Therefore, should Mel’s resignation be considered a constructive dismissal, Mr Tenshus’ actions will definitely have disadvantaged the aggrieved women, violating this section of the Act.
The Anti-Discrimination Act (1997) also provides a legal framework relevant to Mel in her claims for discrimination. While it may not allow damages to the extent that the federal Sex Discrimination Act does, it is still highly relevant to Mel’s situation. Once again, Mel will need to prove that under s24 (a) of the Act, that discrimination occurred as a result of a characteristic that appertains generally to persons of her sex. As has been mentioned above, pregnancy lies as this characteristic, with both the Howe and Thomson cases providing precedent to support such a claim. Therefore, should Mel be able to prove she has been discriminated against on the basis of her pregnancy under the Sex Discrimination Act, she would also be covered by the Anti-Discrimination Act.
Conclusion
Therefore, should Mel lodge an application for unfair dismissal, she needs to be able to prove that she has been treated differently/unfavourably on the basis of a characteristic that appertains generally to women. It is not until she reveals her pregnancy that her treatment from Mr Tenshus changes, with the change in treatment and the resultant stress and pressure caused the reason for her resignation. It must be noted that Mel’s claim is for constructive dismissal, as she was not unfairly sacked, rather forced into retiring.

Reference List
Fair Work Commision (2013), What is the process?, Retrieved 25th March 2013, from http://www.fwc.gov.au/index.cfm?pagename=home
Thomson V Orica Australia (2002)
Howe V QANTAS Airways Ltd (2004)