Australia: Employer response to a worker request to not work on Saturdays for religious reasons passes reasonable management action test

An employer that offered an employee a five day a week role with less remuneration responded reasonably to the employee's request to work less to attend to a religious observance (McMah v Blackwood & BHP Billiton Coal Pty Ltd(2015) ICQ 009).

Facts

The injured worker, Paul McMah, was employed as a Diesel Fitter with BHP Billiton Coal Pty Ltd ("BHP"). He worked on a roster consisting of two days on, two nights on, two days off, two days on, two nights on, six days off.

In about September 2011, Mr McMah re-engaged with his religious faith. His new religious beliefs required that he not work from sundown on Friday to sundown on Saturday, which was the Sabbath for that religion. In order to have enough time to return home from the mine site and to prepare meals for the Sabbath, Mr McMah needed to leave around midday on Friday.

Mr McMah was away from work between November 2011 and 19 January 2012 for an unrelated disciplinary matter. Upon his return to work, Mr McMah formally applied to be placed on a five-day roster so he could avoid working on Saturdays. He was advised that he would need to take annual leave on Saturdays while BHP considered his request. He was also advised that he could not take the Saturdays off as leave without pay.

Mr McMah calculated that the amount of annual leave he would be required to take across the year would exceed his annual leave days. He raised his concern with the HR department, who did not get back to him prior to him suffering stress. Mr McMah alleged that his injury occurred over a period of time from 19 January 2012, with symptoms becoming apparent on 7 February 2012.

On 8 March 2012, a new role was specifically created for Mr McMah which allowed him to work from Monday to midday Friday. However, this meant his remuneration would fall from about $113,000.00 to $85,000.00 per year.

On 1 March 2012, Mr McMah lodged a workers' compensation claim. He alleged that his psychiatric injury arose from unreasonable management action, which he described as follows:

• BHP was slow to act on his request to be removed from Saturday work; and
• BHP treated him unfavourable in acceding to his request for a five-day roster, which left him financially disadvantaged.

Mr McMah also alleged that BHP indirectly discriminated against him under section 11(1) of the Queensland Anti-Discrimination Act1991 in requiring him to continue working on Saturdays if he wished to remain on the seven-day roster.

BHP Queensland Workers' Compensation rejected Mr McMan'sclaim on the basis that BHP's action was reasonable management action taken in a reasonable way pursuant to section 32(5) of the Workers' Compensation and Rehabilitation Act2003 ("the Act"). Mr McMah appealed the rejection to Q-Comp (now the Regulator),who upheld the rejection of Mr McMah's claim. Mr McMah then appealed to the Queensland Industrial Relations Commission ("the Commission"). The Commission dismissed the appeal on the basis that Mr McMah's injury arose from reasonable management action undertaken in a reasonably way.

Deputy President O'Connor found that Mr McMah specifically sought a five-day roster, and BHP acted on that request. Deputy President O'Connor noted there was some delay in BHP's response to the request, but it was not inordinate. He held that management action did not need to be without blemish to be considered reasonable in a psychological injury dispute.

Mr McMah then appealed to the Queensland Industrial Court.

Findings

The Queensland Industrial Court found that Mr McMah's stress arose from reasonable management action, and BHP did not indirectly discriminate against him. The Court held that the reasons for decision provided by the Commissioner were adequate and did not demonstrate an error of law.

Conclusion

Employers should be encouraged by this decision as it has reinforced the right of employers to have regard to the operational requirements when considering alternative employment arrangements for employees with protected attributes under the Queensland Anti-Discrimination Act1991. However, employers still need to proceed methodically and promptly when considering such arrangements and not respond in a "knee jerk" fashion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.