|Dealing with unfair dismissal|
|Tuesday, 19 July 2005 02:15|
‘Unfair dismissal’ is on everybody’s lips as the Federal Government’s proposed new industrial relations changes are debated. “Can I be sacked because of my caring responsibilities?” The answer is a clear no. While the Federal Government does want to reform workplace laws, it also wants carers to participate in paid work and it is committed to retaining protection from unfair termination for workers on discriminatory grounds.
If you feel you have been unfairly dismissed or threatened with dismissal because of your caring responsibilities, several organisations are able to assist you. This article outlines the current roles of the NSW Anti-Discrimination Board (ADB), the Sex Discrimination Unit of the Human Rights and Equal Opportunities Commission (HREOC), and the Australian Industrial Relations Commission (AIRC), in protecting the legal rights of working carers.
If the government’s proposed changes go ahead, the role of the AIRC may change, and it is likely that the anti-discrimination tribunals will be busier. Keep an eye on the Gateway website for the latest information.
NSW Anti-Discrimination Board
Under the Anti-Discrimination (Carers Responsibilities) Act 2000 (NSW), employers are expected to support people who care for family members while working. The ADB says that all employers must provide any special arrangements that you need to do all the essential things the job requires at the same time as managing your carers’ responsibilities. This might include, for example, allowing flexible working conditions. The only exception to this is if making special arrangements would cause the employer ‘unjustifiable hardship’.
The ADB suggests there will be times when an employer will be able to say that it would cause them ‘unjustifiable hardship’ to provide you with what you need. For example, it might be impossible for them to allow you to take time off during the day and make it up later without seriously harming the business. Or it might cost them more than they can afford.
However, before an employer decides that any particular arrangement would cause them ‘unjustifiable hardship’, they must first take into account all the circumstances, including:
In general, your employer can only dismiss you or make you redundant because of your actual, past, presumed or future carers’ responsibilities if :
Sex Discrimination Unit
Women have legal protection from unfair dismissal due to family responsibilities under the Sex Discrimination Act 1984 (Cth). Family responsibilities are defined in the Act as the responsibility to care for or support a dependent child or immediate family member. Courts have interpreted dismissal to include constructive dismissals, which occur where the employer’s actions give the employee no choice but to leave their job.
The Sex Discrimination Unit of HREOC can give advice and hear complaints from female working carers.
The Sex Discrimination Unit gives an example of unfair dismissal in its recent discussion paper ‘Striking the Balance: Women, Men, Work and Family’. In the case of Song v Ainsworth Game Technology Pty Ltd  FMCA 31, a female working carer would leave work each day from 2.55 p.m. to 3.15 p.m. to transfer her son from kindergarten to a carer. She claimed this was done with the knowledge and consent of her employer, which her employer disputed. The employer directed her to work her contract hours of 9 a.m. to 5 p.m. with a lunch break at 12 to 12.30 p.m. When the worker continued to leave work at 2.55 p.m. to transfer her child, she was moved to part time work.
The working carer submitted in court that the requirement she move to part-time work constituted dismissal on the grounds of family responsibilities. The court ordered she be reinstated to full-time work on terms that allowed her to meet her family responsibilities, and she was awarded damages.
Australian Industrial Relations Commission
While female working carers have legal protection under the Sex Discrimination Act, men do not. Male working carers can instead use the Workplace Relations Act 1996 (Cth), which protects all workers from discrimination - including termination - on the grounds of family responsibilities. Working carers can take such cases to the AIRC.
In a recent case also cited by the Sex Discrimination Unit’s paper ‘Striking the Balance’, a male factory worker successfully argued that the relocation of his work site would significantly impede his caring responsibilities to his two children and his frail mother, and was effectively a dismissal (Han Jian Liu v NHP Electrical Engineering Products Pty Ltd, AIRC, C2004/6073, 6 December 2004). Employers who terminate an employee on the grounds of family responsibilities are liable for fines, penalties and compensation.
How do I make a complaint?
It can be difficult to prove that you have been dismissed on the grounds of carer responsibilities, so make a list of any comments or incidents that could lead to this conclusion. If you think your employer is acting against the law, contact the ADB, the Sex Discrimination Unit, or the AIRC to check on your rights. Then you can try talking to your employer. They may have a policy on these issues and/or a process in place to deal with grievance and you may be able to address your problem through these channels. You can also get help from other sources such as trade unions.
If this doesn’t work, or isn’t appropriate, you may decide to make a formal, written complaint to one of these organisations. They can investigate and try and negotiate a confidential, private settlement. If this is not possible, they can support you to go to the appropriate court for a legal judgment.
For more information on the people covered by the various Acts and on making a complaint:
Working Carers Support Gateway: online news, information and support for working carers