Australia: $40,000 Awarded For Discrimination Based On Family Responsibilities

On 5 August 2008, the Anti-Discrimination Tribunal found Carpet Call liable for the conduct of its managers for treating an employee unfavourably because the employee sought to take leave at short notice to provide care and support for members of his family.

The employee, who later developed a depressive illness, established that he was treated less favourably than a person would have been who did not have "family responsibilities". For the managers' conduct in directly discriminating against the employee, Carpet Call was jointly and severally liable with the managers for compensation for hurt and humiliation, and economic loss totalling $39,325.

The facts– Bishop v Gedge & Rudd [2008] QADT 17

The complainant was an employee of Carpet Call (Qld) Pty Ltd from 7 November 2003 to 15 July 2005. On 15 July 2005, the employee told his manager to "shove" his job and immediately left the workplace. Although there were some later attempts to ask for his job back, the employer refused.

Relevantly, the complaint centred around the conduct of the Carpet Call managers in response to some leave that was taken by the employee in the first half of 2005, and then at around the time of the cessation of employment.

During the first few months of 2005, the employee, a timber warehouse supervisor, was participating in a training program for the position of Installation Manager. On three separate occasions earlier that year, the employee took leave on short notice to attend court with his son, who had been charged with criminal offences, to support him. He also had a period of leave on short notice in late February because of relationship difficulties he was having with his wife. All of the leave was approved, and the employee was paid in accordance with his entitlements.

The employee's manager decided to put a temporary stop to the training. It emerged that the manager had done so because he knew the Installation Manager's role was stressful, and he felt it better to postpone the training until the employee had resolved his homelife difficulties.

Later, on 15 July 2005, an incident arose with the employee's young daughter who had apparently been bitten by a fire ant the night before. When the employee called his wife mid-morning to check on the child's status, Mrs Bishop told him that she believed the child really needed to be taken to hospital. The employee called his manager and told him that his daughter was unwell, that it was unclear what was wrong and that he and his wife had medical advice that it could have been that she had been bitten by a fire ant and that she needed to be taken to a hospital. He asked his manager if he could leave work at that time to go home and take his daughter to the hospital.

There was already one employee absent from the carpet warehouse at the time. The manager rejected the employee's request for urgent leave, and when the employee took issue with that, the manager said words to the effect, "Vernon, we've all got a job to do here. You've got a choice to make." The employee believed that he was being given a choice between acting in a way that kept him in his job (by staying at work) or acting in a way that would lose him his job (going home to take his daughter to hospital). The employee said, "Well, you can shove your job up your arse" and walked out.

A short time later, the employee rang his manager to discuss the issue. By that time, the manager had conferred with other managers, who were supportive of his stance.

Then he and his wife took their daughter to hospital, where she was admitted for a number of weeks suffering from a potentially life threatening serious blood disorder.

The Tribunal found that the employee was treated unfavourably at work by being denied carer's leave that he was lawfully entitled to and, on the other occasions, having his training discontinued because of the previous repeated occasions of him taking leave connected with providing care or support to his family.

The Tribunal ordered the relevant managers to apologise to the former employee and, based on its assessment of the contribution the events had in causing his depressive illness (there was evidence that there were a number of stressors in his life other than the denial of carer's leave), the Tribunal awarded general damages of $17,500. Economic loss was calculated, taking into account that the employee had obtained further employment, at $16,000. The total damages awarded, including interest, was $39,325.

Implications for employers

The statutory protection for individuals against being treated less favourably in connection with their family responsibilities continues to be one that some employers and individual managers have difficulty appreciating. Employers should ensure that their relevant managers and staff are aware of their responsibilities to colleagues and not to make decisions based on relevant attributes (for example, race, religion, family responsibilities). The prohibitions against direct and indirect discrimination under anti-discrimination laws should be appropriately reinforced periodically at work through training, to assist the employer to properly defend a claim of unlawful discrimination.

The amount awarded here indicates an increasing willingness by courts and tribunals to award significant amounts of money in compensation for hurt, humiliation and stress.

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.

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