Work from office requirement not discrimination

THE Victorian Court of Appeal has allowed an appeal by the Victorian Government against a finding of indirect discrimination based on its failure to allow a Hansard reporter to work from home.

The employee was employed by Hansard from January 1979 to November 1996.

She commenced employment as a trainee parliamentary reporter and was promoted to the position of sub-editor and held that position until she resigned on November 1 1996.

In February 1996 the employee told Hansard’s managers that her second child was experiencing health problems with separation anxiety and that she wanted to work part-time until his health improved.

This led to part-time work negotiations in 1996 but they reached a stalemate as Hansard rejected the proposal for part-time work because it regarded the employee’s services during sitting weeks as indispensable.

As an alternative it was proposed the employee work from home on Thursdays and Fridays of sitting weeks via a modem.

In principle it was agreed with the employee that the best solution to her difficulties was the installation of a modem line between her home and Parliament House and a fax machine to allow her to work from home on Thursdays and Fridays when Parliament was sitting.

By November 1 1996 the modem had not been installed and, believing that it would not be done, the employee resigned from her employment.

Following her resignation the employee made a claim under the Equal Opportunity Act that her employer had indirectly discriminated against her by reason of her status as a parent and a carer by requiring her to work full-time at Parliament House on sitting days ("the attendance requirement").

Her claim was that the employer was imposing an unreasonable requirement or condition on her with which she, unlike her colleagues, could not comply because of her status as a parent and a carer.

The Victorian Civil and Administrative Tribunal found in favour of the employee and awarded $160,000 in compensation, finding that the employer’s actions amounted to discrimination based on the reasonableness of the attendance at work requirement.

On appeal to the Victorian Court of Appeal, the majority found that an attendance at work requirement was reasonable.

The court said it was inconceivable that the attendance requirement for sub-editors to attend the house on sitting days should be regarded as not reasonable.

The court found there was ample reason to justify this requirement, which was a term of the contract of employment.

It determined there was a need in this particular work environment for interaction between staff members if the reports were to be produced both accurately and quickly.

It also looked to that fact that Hansard was a relatively small department and there was a real pressure on all reporters during sitting days to quickly complete the work, which was highly skilled and unique.

The court went on to emphasise that this was not to say reasonableness should be considered without regard to alternatives as this would be contrary to the provisions of the Equal Opportunity Act.

Carla Paratore, solicitor - 9288 6940

Michael Jensen, associate - 9288 6944