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4 February 2008
From time to time tensions can arise between an employee’s obligations to their employment and their responsibilities to care for a dependent child. Under the Sex Discrimination Act, it is unlawful for an employer to discriminate on the ground of the employee’s family responsibilities by dismissing the employee. In this regard, the Act provides a measure of protection to parents. In a recent case, the Federal Court considered this Act and the outcome shows that the statutory protection does not excuse an employee from complying with reasonable employment conditions such the obligation to attend for work in a punctual manner.
In McDonald v Parnell Laboratories Australia [2007], several employment related claims were made against Parnell Laboratories by Ms McDonald, a former employee. Parnell appointed Ms McDonald to a senior and responsible management position in February 2006. She was dismissed five months later. Amongst her claims, Ms McDonald alleged that Parnell had unlawfully discriminated against her on the grounds of her family responsibilities.
The court heard that Ms McDonald did not generally observe the required hours of work and she was typically late for work. She often missed a regular weekly meeting which was scheduled to commence at 8.30am. When she did attend, she would be late. Ms McDonald’s conditions of employment required her to work 9.00am to 5.00pm, Monday to Friday, and necessary additional hours. These hours were stated clearly in a written employment contract. As it transpired, the written contract proved crucial to Parnell’s successful defence of the claim.\
Ms McDonald told the court that she had two young sons who needed to be taken to school. She argued that these family responsibilities prevented her from attending work at 9.00 am and also prevented her from working additional hours, including the weekly 8.30 am meeting. Ms McDonald alleged that Parnell acted unlawfully by using these family responsibilities as grounds for her dismissal.
The argument failed and the court dismissed the claim. In doing so, the court placed substantial weight on the fact that the written employment contract set out the hours of work and clearly foreshadowed the requirement to work additional hours. The court was satisfied that Ms McDonald had willingly accepted these conditions. The court also concluded that she was the only person able to make an assessment as to whether she would be able to manage the requirement for additional work while discharging family responsibilities.
Two valuable points can be gleaned from this decision. First, McDonald’s status as a parent did not excuse her from complying with the conditions of employment which she had freely accepted. Second, an effective written contract can make a substantial contribution to the management of risk within a business and the protection of the employer’s legal interests.
If you have any queries, please do not hesitate to contact any of our workplace law partners, or your usual Australian Business Lawyers contact.
Tim Capelin
Managing Partner
Ph: 02 9458 7497
email: tim.capelin@ablawyers.com.au
Tony Vernier
Partner
Ph: 02 9458 7311
email: tony.vernier@ablawyers.com.au
John Stanton
Partner
Ph: 02 9458 7555
email: john.stanton@ablawyers.com.au
