Boss: Make room for working mums and dads

Changes are afoot on the legally required responsibilities that employers must meet in regard to staff family commitments. Is your business able to comply; and cope? By PETER VITALE.

By Peter Vitale

A recent anti-discrimination case offers employers guidance in working out the extent to which they are required to accommodate employees’ family responsibilities. 

In the case St Joseph’s Hospital Ltd v Correy, a nurse in NSW returning from maternity leave had her claim of discrimination on the basis of carer’s responsibilities dismissed by an appeal panel in the NSW Administrative Decisions Tribunal.

The nurse worked in the palliative care unit (PCU) of St Joseph’s Hospital in Sydney’s west for about nine years before to going on maternity leave in 2004.

On her return to work in 2005, she requested that she be rostered to work in the PCU for a reduced number of hours compared to her pre-maternity leave situation.

The hospital rostered her to work in units other than the PCU. She was reluctant to do so and claimed that the failure of the hospital to return her to her previous position in the PCU was discriminatory for reasons including that she had carer’s responsibilities, contrary to the NSW Anti Discrimination Act.

The Anti Discrimination Tribunal originally found that the nurse had suffered a “detriment” because of the loss of job satisfaction she experienced in the PCU.

That detriment had been suffered because of the altered roster arrangement, which the hospital had put in place as a result of her taking maternity leave. Therefore, it was found the nurse’s responsibilities were the reason for the detriment.

The appeal panel rejected that finding.

It referred to the important High Court case of Purvis v New South Wales Department of Education. In Purvis’s case, the High Court rejected the use of a simple “but for” test when considering whether an allegedly discriminatory act was the reason that the complainant had a particular characteristic, such as carer’s responsibilities.

In this case it was not sufficient for the complainant to say that the roster changes would not have occurred “but for” her maternity leave. The roster changes were not linked closely enough to the maternity leave to enable the tribunal to say that this was the reason for the change of roster.

Interestingly, the complainant did not claim “indirect” discrimination, which would have required her to show that she was unable to work the new rosters. In fact she admitted that she could have worked those rosters.

The case shows that changes to work requirements on return from parental leave will not automatically be considered discriminatory. Employers have the right to request that the employee perform duties within their capabilities, provided that it does not unreasonably hinder their carer’s responsibilities or reduce their remuneration.

The case is of particular interest because, as reported on SmartCompany yesterday on new discrimination duties for employers, the Victorian Government last week changed the Equal Opportunity Act to impose an obligation on employers not to unreasonably refuse a request for flexible working arrangements.

The Federal Government is also moving towards encouraging employers to accommodate their employees’ family responsibilities, with legislation soon to be introduced that will give workers a right to request additional parental leave and flexible work arrangements to help them care for children.

This area is still fraught with risk for employers and the following lessons should be carefully observed:

• Make sure any employment agreement, award or other statute does not require the employee to be returned to exactly the same position that he or she held before parental leave was taken.
• Try and work with your employees to come to a mutually acceptable return to work arrangement. Before the employee goes on parental leave, give careful consideration to what the interim arrangements are going to be while the employee is away and what will happen if they are to be retained. If the employee is unable to comply with altered arrangements, there may be a claim of indirect discrimination waiting.
• Bear in mind the impending changes to Victorian and federal law which will give employees additional rights to request flexible working arrangements to accommodate carer’s responsibilities. You need to make sure your business can deal with it.

Peter Vitale is the principal of CCI Victoria Legal