In a recent decision of the Civil and Administrative Tribunal, the majority has ruled that the NSW Police Commissioner did not discriminate against or victimise an officer with carer’s responsibilities by refusing to accommodate her requests for part-time hours when she was offered a promotion.  The refusal to accommodate the specific part-time arrangement meant that the employee could not accept the promotion.

What happened?

The applicant was a Leading Officer with the NSW Police Force and a mother of three young children. Since returning from maternity leave in 2011, she had worked part-time, as well as coordinated her roster with that of her husband’s, another police officer, to ensure that someone was always available to care for their young children.

In 2013, the officer applied for promotion to the rank of Sergeant. The position was advertised on a full-time basis in accordance with NSW Police Force’s policies. On two occasions, different Local Area Commands (LAC) offered a promotion to the officer.

On the first occasion, the officer accepted a Team Leader position with the LAC. She then unsuccessfully negotiated with the LAC superintendent for a suitable part-time arrangement to cater for her carer’s responsibilities. The Superintendent stressed that the position was advertised as full-time and he was only operationally able to accommodate the request for part-time hours if the officer worked increased hours from the current arrangement that was in place (which was still less than full-time hours). The officer relinquished the position, claiming that she had “been forced to withdraw”, and lodged a complaint with the Anti-Discrimination Board (ADB) for unlawful discrimination on the grounds of her responsibilities as a carer.

On the second occasion, the officer was the highest ranking candidate for a promotion to General Duties Supervisor with a different LAC. She was unable to negotiate a suitable part-time arrangement with the second LAC Superintendent, who reiterated that the promotion was advertised as a full-time position and that it would require the officer to work significantly more shifts than her current arrangement (again, the proposed arrangement was less than full-time hours) to ensure that the LAC was appropriately resourced. Evidence later showed that the Superintendent had knowledge of the officer’s unsuccessful negotiations with the first LAC Superintendent and her complaint to the ADB, that he was instructed by a Chief Inspector to not employ her, and that he made explicit comments such as “hopefully we’ll be able to go to the next person on the list” and that she was “a real pain in my arse” for “whinging” about not getting the promotion.

The officer relinquished the position and lodged two further complaints with the ADB, alleging that she was subjected to direct and/or indirect discrimination on the grounds of her responsibilities as a carer, and that she was victimised. The officer claimed that the Superintendent set up a sham process to make it look like he was complying with the Police Force’s part-time policy, and provided a non-genuine offer when he knew that the officer could only work twelve shifts in a six-week roster.

The Tribunal’s decision

The majority of the Tribunal dismissed the claim that the officer was either directly or indirectly discriminated against on the grounds of her responsibilities as a carer under the Anti-Discrimination Act 1977 (NSW) (Anti-Discrimination Act). The Tribunal held that an employer can legally deny or limit an employee’s access to promotional opportunities if those opportunities require the employee to work more hours than he or she is able.  In this case, the employer was not requiring the officer to work full-time, it was simply that the part-time arrangements that the employer could accommodate were not acceptable to the officer.  

The majority of the tribunal also rejected the officer’s victimisation claim, as there was little evidence to support that the Superintendent imposed the increased amount of shifts as a condition because he knew that the officer had previously made a complaint and would be forced to reject the job. Rather, the Tribunal found that he was motivated by the belief that a full-time officer was needed to meet the needs of the second LAC.

Lessons for employers

The Tribunal’s findings show that in certain circumstances, it is not unlawful under the Anti-Discrimination Act to limit or deny an employee access to promotional opportunities, if the provided opportunity requires the employee to work more than he or she is able to.

However, the Tribunal’s decision shows that discrimination and victimisation are areas employers need to approach with caution and ensure that they can point to sound business justifications for making decisions relating to the promotion of employees, particularly where factors such as carer’s responsibilities are involved.

Employers should ensure they genuinely consider any flexible arrangements to avoid the risk of potential discrimination or victimisation claims.