This case considered whether a police officer was discriminated against and victimised by the NSW Police Force on the ground of her carer’s responsibilities. These allegations arose when the NSW Police Force did not offer the employee part-time employment that matched her request for flexible working hours to accommodate her carer responsibilities.

Implications for employers

Every case turns on its own circumstances, however in this case it was adequate for the employer to accommodate an employee’s request for flexible working arrangements in a manner that aligned with the employer’s operational requirements rather than meet all aspects of the employee’s request.

Background

The applicant was offered (and accepted) conditional offers of employment as part of a promotion to the role of Sergeant at two Local Area Commands (LACs), Rosehill and Campsie. The applicant accepted the positions with the hope of negotiating part-time arrangements. Prior to these offers, the applicant had previously worked part-time hours due to carer’s responsibilities. The applicant would maintain her current part-time arrangements if she did not accept the Sergeant’s role.

After taking into account the applicant’s requests at both sites, the commanding officer offered the applicant part-time arrangements but with more hours than the applicant could accept. The applicant could only perform ten twelve-hour shifts per roster cycle. However, she was offered fourteen and seventeen, twelve-hour shifts at each of Rosehill and Campsie LACs.

Although the offers were part-time in nature, the applicant was unable to accept them and argued that she was discriminated against by the NSW Police Force due to her carer’s responsibilities. The applicant also alleged that she was victimised by the NSW Police Force when it offered her the Campsie position, despite knowing that she had rejected a similar offer at the Rosehill LAC. The NSW Police Force argued that the proposed part-time shifts were offered due to operational requirements.

The applicant claimed that the NSW Police Force had:

  • directly discriminated against her:
    • on the ground of her responsibilities as a carer in the terms and conditions of employment afforded to her; or
    • by denying or limiting her access, to opportunities for promotions; or
    • by subjecting her to another detriment; and
  • in the alternative, indirectly discriminated against her by imposing unreasonable requirements or conditions with which she was unable to comply; and
  • victimised her by allegedly making an offer of part-time work arrangements at the Campsie LAC that they knew she would not accept. This conduct was allegedly a reaction to her rejection of the Rosehill offer and complaints.

Decision

The Tribunal dismissed the applicant’s complaints of discrimination and victimisation.

In considering whether the applicant was treated less favourably (ie subject to direct discrimination), the Tribunal determined that the comparison required to be made was with a person who wished to work or was only able to work part-time hours, rather than a person with carer’s responsibilities. As the applicant had been offered roles on a part-time basis there was no less favourable treatment.

The applicant’s indirect discrimination asserted the NSW Police Force had imposed a condition that she work full time. The Tribunal rejected this argument because the evidence demonstrated that applicant was not required to work full time and was in fact offered part-time working arrangements.

The Tribunal rejected the applicant’s victimisation claim because there was insufficient evidence to support the applicant’s contention that the NSW Police Force victimised her because she rejected the Rosehill offer. The Tribunal could not find that the Campsie LAC intentionally offered her hours that she could not accept.