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Are your employees entitled to part time work? |
In a landmark decision, the Administrative Decisions Tribunal found that an employer had been unreasonable in requiring an employee to return from maternity leave to her job full-time. The employee received $16,000 in damages for unlawful discrimination from her employer due to their refusal to consider her request and responsibilities as a carer. |
Having been unable to find suitable childcare, the employee had taken her daughter to her mother's home 25 kilometres away. To avoid peak-hour traffic she wanted to work from 7.30am to 4pm on Mondays, Tuesdays and Thursdays. |
The employee received a letter from the company stating that:
"As your former position was full time you are not entitled to work part time. You will appreciate that whilst you have certain entitlements, the company has consequent obligations to you. These obligations do not include meeting your personal circumstances, however praiseworthy those circumstances might be". |
The Tribunal, on consideration of the case, found that the speed with which the proposal was rejected raised a suspicion that it was given little or no thoughtful consideration. There was no discussion with the employee or exploration of other options such as job sharing. |
"In days of advanced and relatively cheap communications, it does not appear to have been a startlingly visionary and experimental idea for a company to have someone on call with the capacity to respond immediately" the Tribunal observed. |
The Tribunal concluded that the company had discriminated because a substantially higher proportion of employees without carer's responsibilities were able to comply with the full time requirement. |
This is the first case in which carer's responsibilities have been used to argue a claim for part-time work. Mothers had won similar cases previously on the grounds that denying them part-time work amounted to sex discrimination and whilst the judgment does not imply that there is a right to return to part time work after maternity leave, it does state clearly that an employer should properly consider such a request as well as alternatives. Employers might even be expected to trial a part time plan. |
peter.mcnamara@cml.com.au
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