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Mother refused part-time work succeeds in discrimination claim

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 98, 21 February 2006

Mothers returning from maternity leave often ask their employer to convert full-time employment to part-time employment to assist the mother in caring for her infant child. A recent decision of the NSW Administrative Decisions Tribunal (ADT) in Tleyji v The TravelSpirit Group Pty Ltd reminds employers of the need to give serious consideration to any such requests for part-time employment.

Ms Tleyji worked as a Senior Travel Consultant for TravelSpirit at its Eastwood office. Prior to taking maternity leave Ms Tleyji worked on a full-time basis. After returning from maternity leave Ms Tleyji sought for her Senior Travel Consultant position to be converted to a part-time position.

TravelSpirit’s refusal to provide Ms Tleyji with a part-time Senior Travel Consultant position resulted in Ms Tleyji resigning from her employment and commencing a discrimination claim in the NSW ADT.

In her application to the NSW ADT Ms Tleyji claimed that TravelSpirit had breached a number of provisions of the Anti-Discrimination Act 1977. Amongst these claims was an allegation that TravelSpirit had discriminated against Ms Tleyji on the ground of carer’s responsibilities. In short, Ms Tleyji argued that TravelSpirit acted unreasonably by insisting that she work in the Senior Travel Consultant position on a full-time basis only.

In defending Ms Tleyji’s claim, TravelSpirit argued that that the viability of its Eastwood office might have been compromised if Ms Tleyji’s Senior Travel Consultant position was converted to a part-time position. TravelSpirit submitted that conversion to a part-time position would result in a lack of continuity being provided to clients of its Eastwood office. TravelSpirit also argued that it made reasonable attempts to accommodate Ms Tleyji’s request for part-time employment by offering her a choice of two alternative part-time positions in its city office. Whilst not identical to Ms Tleyji’s Senior Travel Consultant position, TravelSpirit claimed that these positions were broadly comparable with Ms Tleyji’s former position.

The NSW ADT ultimately concluded that whilst TravelSpirit gave some consideration to allowing Ms Tleyji to work part-time, it failed to give full and proper consideration to whether she could perform her role as a Senior Travel Consultant on a part-time basis. TravelSpirit did not, for example, canvas whether two part-time employees in the Eastwood office would be prepared to work full-time. Further, no consideration was given to the possibility of a job share arrangement or trialling Ms Tleyji in the part-time position sought by her.

The NSW ADT ordered TravelSpirit to pay compensation to Ms Tleyji for indirectly discriminating against her on the basis of carer’s responsibilities.

HR Tips

Employers should give full and proper consideration to any request for part-time employment made by mothers returning from maternity leave. Indeed, as the above case demonstrates, it may be necessary to consider job share arrangements or a trial of part-time employment before rejecting any such arrangements.

Jason Donnelly
Senior Associate
Australian Business Lawyers