Reddy v. International Cargo Express [2004] NSWADT 218

CITATION: Reddy v. International Cargo Express [2004] NSWADT 218 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Evelina Reddy RESPONDENT International Cargo Express FILE NUMBER: 031151 HEARING DATES: 03 & 04/05/2004, 28/05/2004 SUBMISSIONS CLOSED: 05/28/2004 DATE OF DECISION: 09/30/2004

BEFORE: Britton A - Judicial Member; Bolt M - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member APPLICATION: Carers' Responsibility Discrimination - in work - Sex Discrimination - In work MATTER FOR DECISION: Principal Matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP; Bonella & ors v Wollongong City Council [2001] NSWADT 194; Waters v Public Transport Corporation (1991) 173 CLR 349); Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165; Hickie v Hunt & Hunt (1998) EOC 92-910 unreported, HREOC; Mayer v ANSTO [2003] FMCA 209; The Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228; Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (1988) EOC 92-239; Speering v Minister of Education (1993) EOC 92-513 at 79,621; Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1; Styles v The Secretary of the Department of Foreign Affairs and Trade (1989) 23 FCR 251, Commonwealth v HREOC (1995) 63 FCR 74; The State of New South Wales v Amery & Ors (EOD) [2003] NSWADTAP 16, Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26; Gardiner v WorkCover Authority of New South Wales (EOD) [2004] NSWADTAP 1; State of Victoria v Schou [2004] VSCA 71; Font v Paspaley Pearls (2002) EOC 93-232 ; Spencer v Dowling [1997] 2 VR 127 ; Hall v Sheiban (1985) ALR 503 APPLICANT REPRESENTATION: K. Eastman, barrister RESPONDENT K Nomchong, barrister ORDERS: 1. In relation to the claim of discrimination on the ground of carer's responsibilities, we order that the Respondents pay the Applicant within 21 days damages in the sum of $ 16,385; 2. The Applicant to file and serve any submissions as to costs within 14 days. The Respondent to file and serve in reply within 14 days of receipt of the Applicant's submissions.

1 Evelina Reddy complains that her former employer, International Cargo Express, the Respondent in these proceedings, discriminated against her on the grounds of carer's responsibility, pregnancy and gender. Central to her complaint is the claim that by requiring her to return to work full-time the Respondent indirectly discriminated against her. 2 By letter dated 14 November 2002, Mrs Reddy lodged a complaint with the President of the Anti-Discrimination Board (respectively "the President" and "the Board"). She alleged that International Cargo Express (ICE) discriminated against her by, first, requiring her to return to work full-time despite her request for part time work and second, offering her a position of lesser status on her return from maternity leave. 3 By letter of 17 November 2003, the President referred that complaint to the Administrative Decisions Tribunal ("the Tribunal") under s 94(1) of the Anti-Discrimination Act 1977 ('the Act'). Background 4 Mrs Reddy was licensed as a customs broker in 1984 and commenced employment with the Respondent in August 1996. 5 The Respondent's business is the transporting of goods by sea, air and land. As part of the service, the Respondent coordinates the clearance of customers' goods through customs. When she commenced with the Respondent, Mrs Reddy was the sole customs broker. By June 2001 the number of staff dealing with customs matters had grown to five. Mrs Reddy was the manager of this section when she took maternity leave in June 2001. She contends that she held the position of National Customs Manager. The Respondent disputes this and claims she was the Customs Manager. 6 The Respondent's customs brokers were required to be fully conversant with all rules and regulations relating to customs matters. A large part of their job was liaison with clients and government officers which was mostly done over the phone and online. 7 Mrs Reddy's letter of appointment, dated 24 July 1996, stated among other things, that her hours of work were 8.30 am to 5.30 pm Monday to Friday. She worked these hours throughout the entire period of her employment with the Respondent. These were the standard hours worked by the Respondent's employees. 8 On 10 April 2001 Mrs Reddy advised the Respondent that she intended to take maternity leave from 18 June 2001 and to resume work on 17 June 2002. Her daughter was born on 16 July 2001. 9 By letter dated 16 April 2002 addressed to the Respondent's managing director, Peter Timmerman, Mrs Reddy requested: 1. an extension to the maternity leave to 19 August 2002 for personal reasons and family responsibilities relating to care of my daughter. Of course the leave would continue to be unpaid; and 2. that upon my return I work part time three days a week on Mondays, Tuesdays and Thursdays and that my working hours be 7.30 am to 4 pm. …It is my intention to work full time in due course. 10 George Kyriakides, the Respondent's Sydney branch manager, who had joined the Respondent three months before Mrs Reddy went on maternity leave, replied that Mr Timmerman would reply on his return from overseas on 6 May 2002. 11 On 13 May 2002 Mrs Reddy wrote again requesting a reply "….As I need to plan family responsibilities relating to the care of my daughter I need a response to my letter urgently." 12 Mr Kyriakides in a letter dated 16 May 2002 stated: "As your former position was full time you are not entitled to work part time. You will appreciate that whilst you have certain entitlements, the company has consequent obligations to you. These obligations do not include meeting your personal circumstances, however praiseworthy those circumstances might be. Similarly you are not entitled to an extension beyond the maximum period of 52 weeks for maternity leave. In the circumstances referred to above the company cannot agree to any extension, and in any event were those circumstances different an extension of time is not something to which the company would agree. We regret we are unable to assist you any further. However, if you wish to discuss this further, please call to make an appointment." 13 In a reply, addressed to Mr Timmerman, dated 27 May 2002 Mrs Reddy reiterated that she was could not work normal business hours and also provide proper care to her daughter. She requested that her proposal be reconsidered. She stated that she had nominated Monday, Tuesday and Thursday as the days she would work in the office because Monday and Tuesday were generally the busiest days and, by not working three consecutive days, she would never be out of the office for more than a single day at a time. She indicated that she was also prepared to deal with urgent issues if they arose on her days off, providing an acceptable arrangement could be reached regarding payment. 14 Mr Kyriakides replied by letter dated 4 June 2002 that the original decision stood: "Please be assured we are not seeking to discriminate against you but the requirements of your employment are not in accordance with your proposals, which if implemented would require an entirely new regime of management within the company." In addition he advised that should Mrs Reddy return she would hold the position of "Interstate Customs Manager with remuneration at your current level". 15 Ms Reddy wrote to the Respondent again on 10 June 2002 advising that she could not return to work full time and therefore was unable to return to work at all. 16 All communication between the parties about Mrs Reddy's request was in writing. 17 On 2 September 2002 Mrs Reddy commenced part-time work with Bax Global as a customs broker. Relevant legislative provisions 18 Mrs Reddy asserts that the Respondent's conduct amounted to unlawful discrimination on the ground of carer's responsibilities, under s 49V(2) of the Act and on the ground of sex, under s 25(2). 19 Section 49V(2) provides:- (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer: (a) in the terms or conditions of employment that the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. 20 The term 'responsibilities as a carer' is defined in s 49S(1): (1) A reference in this Part to a person's responsibilities as a carer is a reference to the person's responsibilities to care for or support: (a) any child or step-child of the person (whether or not under the age of 18 years) who is: (i) wholly or substantially dependent on the person, or (ii) in need of care or support… 21 It is not in issue that Mrs Reddy had responsibilities as a carer. 22 The test of discrimination for the purpose of s 49V(2) is set out in s 49T(1). (1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of the aggrieved person's responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer. 23 Section 25 is the substantive provision relating to sex discrimination. The test of discrimination on the basis of sex is defined in s 24. Onus of proof 24 The Applicant bears the onus of proof to the Briginshaw standard. (See also Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP.) Evidence 25 National Customs Manager As noted Mrs Reddy claims that at the time she took maternity leave she held the position of National Customs Manager, not, as asserted by the Respondent, Customs Manager. Her letter of appointment described her as the "Customs Manager" as did the Job Description issued to her in May 1999 and the performance review dated December 1999. A subsequent review in January 2001 described her as the "National Customs Manager" as did the letter to the Board from the Respondent's solicitors dated 18 February 2003. 26 Mr Kyriakides said that as far as he was aware, Mrs Reddy was not the National Customs Manager but agreed she was responsible for national customs management. 27 Findings There is no evidence that at some time between 1996 and 2002 a formal decision had been made to give Mrs Reddy the title of "National Customs Manager". However, as the evidence of Mr Kyriakides reveals, it is uncontroversial that she was responsible for national customs management. In a national organisation with a single manager in the customs section it seems immaterial whether the position was termed National Customs Manager or Customs Manager. This is supported by the documentation, which indicates that the terms were used interchangeably. 28 Her title notwithstanding, it is clear that when she left on maternity leave Mrs Reddy was the sole manager in the customs section and was responsible for the management of all staff in that section. 29 Staffing numbers In June 2001 there were two custom brokers, Colin Gunn and John Kelly, a cartage co-ordinator, Joanne Neave, and a runner, Rob Gerrard employed by the Respondent. Mrs Reddy was the manager of the customs section. Mr Gunn took over her position when she was on leave. For a period when she away there were three licensed brokers in addition to Mr Gunn. In June 2002, in addition to Ms Neave and Mr Gerrard, there were three licensed brokers: Messrs Gunn (the manager), Kelly and Summerville. 30 Reasons for not agreeing to Mrs Reddy's request The decision not to agree to Mrs Reddy's proposal was made jointly by Mr Timmerman and Mr Kyriakides, in consultation with company director, Mr Lipton. Mr Lipton had no dealings with the day to day running of the company. His involvement was primarily with Board matters. He could not remember when and by whom he was consulted about Mrs Reddy's request and said he was not given a copy of her letter. His evidence was to the effect that when advised of the proposal he concluded it would be unworkable. 31 Mr Timmerman's evidence was that on receiving Mrs Reddy's request he referred the paperwork on to Mr Kyriakides. He said he sought legal advice and was told that under NSW law there was no requirement to offer part-time work. In his opinion, Mrs Reddy's proposal was impractical because "a manager needed to be there all the time". He said he was concerned that if the company acquiesced, other requests for part time work might "flood in". He said it was a small company and everyone was "hands on" including himself. No one was part-time. 32 Mr Kyriakides gave evidence that before Mr Timmermann's return from overseas he had briefly discussed Mrs Reddy's request with Mr Lipton and had concluded it could not work. He said he met briefly with Mr Timmermann on or about 7 May and again, probably on 9 May. In oral evidence he claimed that between these meetings he had mentioned the proposal informally to staff who indicated they were not happy about it. This is not mentioned in his statement (Exhibit R3). He said that he informed Mr Timmermann that in his view the company could not hold out for another three months for Mrs Reddy to return, nor was it feasible that she work part-time. He said when he met again with Mr Timmermann after receiving Mrs Reddy's letter of 27 May it was "blatantly obvious" the answer was still "no". 33 Mr Kyriakides said he did not think it appropriate to discuss the proposal directly with Mrs Reddy. She had chosen to put the request in writing and accordingly he thought it appropriate that he respond in the same way. He said he had given her the opportunity to contact him but she had not. 34 In his opinion the proposal was not feasible because while Mrs Reddy would have been at work on Monday and Tuesdays, which he agreed were marginally busier than other days, "all days are busy and unpredictable". He estimated that in April 2002 each broker would take between one and five problem files per day to their manager. He said he based that view on his observations of, and interactions with, Mr Gunn. He said Mr Gunn appeared to spend about three-quarters of his day on "operational matters". 35 Mr Kyriakides said another aspect of Mrs Reddy's proposal that troubled him was whether she could be guaranteed to be on standby as promised. In his opinion it would have been unfair to Mr Gunn to ask him to step in and deal with problem jobs on Mrs Reddy's days off. 36 He said that in his opinion customers would not be prepared to wait longer than an hour for a problem to be sorted out. Under cross-examination he conceded that he could not say how many customers had been lost on account of not being able to get a response within that time frame. He said he could recall only one example of a customer who had taken their business elsewhere because they had not received a timely response. 37 Mrs Reddy claimed that when she went on maternity leave she had limited involvement in what she described as "operational matters", that is arranging customs clearances for individual clients. Rather the focus of her work was on systems management and the coordination and supervision of staff. She agreed it was her role to help out the customs brokers if a problem arose. 38 Mrs Reddy disagreed with the proposition that urgent matters requiring the intervention of the customs manager arose on a daily basis, estimating it to be more like once a week. In the past if an urgent matter arose and she was unavailable, another customs broker would deal with it. She conceded that if problems were not dealt with promptly, clients might consider taking their business elsewhere. 39 Mrs Reddy stated that she had nominated Mondays, Tuesdays and Thursdays as her days at work as in her experience these days were generally busier than others. She explained that under her proposal if an urgent matter came up when she had left work, a message would need to be taken and she would get back to the caller. 40 Mrs Reddy conceded that she had no knowledge of any changes to the Respondent's business while she was on leave. 41 Proposed restructure Mr Kyriakides said that since about March 2002 there had been discussions within the company about restructuring the customs section. Under the plan, two managers would be appointed - Mrs Reddy as Interstate Customs Manager, responsible for the management of staff based outside Sydney and Mr Gunn, as National Customs Manager responsible for Sydney staff. Mrs Reddy first became aware that she was to be appointed to this position when she read Mr Kyriakides' letter of 4 June 2002. No other details were provided to her. 42 In cross-examination, Mr Kyriakides denied that the proposed Interstate Customs Manager would be subordinate to the National Customs Manager. He claimed that the two positions would be equal in status and the remuneration offered identical. Mr Kyriakides said he had intended to brief Mrs Reddy about the restructure on her return to work. 43 As it turned out, the restructure did not proceed and an Interstate Manager was not appointed. Instead it was decided to put on additional brokers in Melbourne and Brisbane and split the role. Mr Gunn remained in the position of manager. Growth in Company 44 Mr Kyriakides' evidence was that while Mrs Reddy was on maternity leave, business had increased and the customs section handled about an additional 80 customs entries per month. He asserted this amounted to an extra 60 hours per month for the section. Childcare arrangements 45 Mrs Reddy claimed that about three months after the birth of her daughter she started making enquiries about childcare and placed her name on the waiting lists of a number of child care centres. She found that many had waiting lists of up to two years, or were otherwise unsuitable. She concluded that the only suitable option, for a period at least, would be for her mother, who lived about 25 kilometres away, to look after her daughter three days a week. According to Mrs Reddy the hours proposed - 7 am to 4 pm - would have allowed her to avoid the worst of the peak hour traffic and be home by 6 pm to prepare her daughter for dinner and bed. Substantive provision of the Act 46 As a first step we must determine "whether the impugned conduct of the respondent falls within a substantive provision of the Act" Bonella & ors v Wollongong City Council [2001] NSWADT 194 at [35]. It is only if the answer to that question is yes that it is necessary to ask whether that conduct amounts to unlawful discrimination. In this case the Applicant contends that the conduct of which she complains is caught by paragraphs (a) (terms and conditions), (c) (dismissal) and (d) (detriment) of s 49V(2). 47 It is not in issue that it was a term of Mrs Reddy's contract of employment that she work full time, Monday to Friday. The Applicant claims that the terms of employment were applied in a discriminatory manner. 48 The Respondent asserts that the circumstances of this case do not fall within s 49V(2)(a) as Mrs Reddy's complaint was not that she was required to work full time but rather the Respondent's refusal to accede to her request to work the days and hours nominated in her letter of 16 April 2002. Consequently, it argues Mrs Reddy simply failed to make it to first base as her complaint does not fall within a substantive provision of the Act. 49 In our view it matters little, in determining whether the circumstances of this case fall within s 49V(2) whether the conduct complained of is ultimately characterised as a refusal to allow Mrs Reddy to work the hours she nominated or the requirement that she work full time. It was a term or condition of her contract that she attend work on specified days and for particular hours. Equally it was a term that she work full-time. 50 We are satisfied that the conduct of which the Applicant complains falls within s 49V(2)(a). Having reached this conclusion it is not necessary to consider whether that conduct is also caught by s 49V(2)(c) or s 49(2)(d). Indirect discrimination 51 To succeed in her claim of indirect discrimination, Mrs Reddy must establish that: · the Respondent imposed a "requirement or condition"; and · she was unable to comply with that "requirement or condition"; and · a substantially higher proportion of persons without responsibilities as a carer comply or are able to comply with that "requirement or condition"; and · the requirement or condition is not reasonable having regard to the circumstances of the case. The condition or requirement 52 What constitutes the condition or requirement in a claim of indirect discrimination is a question of fact (Waters v Public Transport Corporation (1991) 173 CLR 349) and must be identified with some precision (see Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165 at p 185, per Dawson J and Waters per McHugh J at [20]). 53 The Applicant nominates the relevant requirement as the requirement that she work full-time. The Respondent disagrees and contends that the complaint is its refusal to accede to Mrs Reddy's request. Here, it is argued there was no general request for part-time work or flexible working hours and, as such, the facts of this case are distinguishable from Hickie v Hunt & Hunt (1998) EOC 92-910 unreported, HREOC); Mayer v ANSTO [2003] FMCA 209 and others where the requirement to work full-time was recognised as a condition or requirement. 54 The Respondent correctly points out that its alleged discriminatory conduct was triggered not by a general request for part-time work, but by a specific proposal formulated by Mrs Reddy. It asserts that it is not a necessary corollary to that refusal, that she was required to work full-time. We do not agree. Mr Kyriakides' letter of 16 May 2002 made it abundantly clear that "As your former position was full-time you are not entitled to work part-time [emphasis added]." Mrs Reddy's request was framed in the knowledge that it was an express requirement of her employment that she work full-time. It does not follow that because she did not formulate her request as a request for an exemption from the requirement to work full-time, that it was not a requirement imposed by the Respondent. 55 This is not a case of an employer agreeing to part-time work in principle but being unable to agree on the detail. Rather, this is a case where, in answer to a specific request for part time work, the Respondent replied not only that the proposal was unacceptable but that Mrs Reddy was required to work full-time. 56 We find that the relevant requirement was that Mrs Reddy work full-time. Able to Comply 57 The Applicant contends that the evidence shows that she was unable to comply with the requirement that she work full-time in a practical sense because she had to attend to the care of her infant daughter. 58 The Respondent argues that Mrs Reddy simply asserted an inability to work full-time but failed to identify how or why this was the case. It asserts that Mrs Reddy, in effect, left her run too late in making arrangements for childcare and left it to the last minute to advise it of these difficulties. 59 The "ability to comply" in the context of indirect discrimination is to be assessed in a practical, not theoretical, sense. (See the approach adopted by Einfeld J in The Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228, at p 77, 1672; by Wilcox J in Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (1988) EOC 92-239 at 77, 238 and by the Western Australian Equal Opportunity Tribunal in Speering v Minister of Education (1993) EOC 92-513 at 79,621). It goes without saying that a person with responsibilities as a carer for an infant child will be unable to work full-time unless they can make arrangements for someone else to care for their child while they are at work or their employer allows them to continue caring for their child during work hours. Mrs Reddy need not establish that her inability to work full-time arose from some "immutable characteristic". It is enough that she establish that she was unable to return to work full-time on account of her responsibilities to her child. 60 It may be that Mrs Reddy was remiss in not moving earlier to locate suitable care for her daughter or that she had not exhausted all alternatives when she concluded she could only work part-time. Presumably there must have been some childcare available somewhere in Sydney that would have allowed Mrs Reddy to return to full-time work. In our view it is not necessary that Mrs Reddy prove that no full-time care was available regardless of when her search commenced. It is enough that she establishes that she had made reasonable attempts to find appropriate care. We are satisfied that she did. 61 Although not directly relevant to this case, in a complaint of indirect discrimination bought on the ground of carer's responsibilities, it is not in our view necessary for an applicant to establish there is no one but him or herself available who can care for the children during work hours. In assessing practical ability to comply a relevant factor to take into account is the beliefs of the carer as to the appropriateness or otherwise of leaving their child/ren to be in the care of another, on a full-time basis. Substantially higher proportion 62 Mrs Reddy must establish that a substantially higher proportion of staff members without carers' responsibilities comply, or are able to comply, with the requirement or condition to work full-time. How this comparison should be undertaken is set out in Bonella & ors v Wollongong City Council at [77]. 63 Put simply in this case, the Applicant is required to: · First, identify the pool or base group. (The base group identified by the Applicant and accepted by us was the staff of the customs section. At the relevant time, namely when Mrs Reddy applied to return on a part-time basis, there were five staff in that section, including Mrs Reddy.) · Second, identify the members within that group who do not have carers' responsibilities and can comply with the condition. (Of the base group no one except for Mrs Reddy had responsibilities as a carer and all could comply with the condition to work full-time.) · Third, identify the members of the base group who have carers' responsibilities and can comply with the condition. (Mrs Reddy was the sole member of this group and, as noted, could not comply with the condition.) · Finally, compare the proportion of employees without carers' responsibilities who can comply with the requirement to work full-time (4/4) with the proportion of employees with carers' responsibilities who can comply with the condition to work full-time (0/1). 64 It is apparent that a substantially higher proportion of employees without carers' responsibilities (100%) could comply with the condition compared with those with carers' responsibilities who could not (0%). Not Reasonable 65 There is no shortage of authority on the approach to be taken to determining whether the imposition of the relevant requirement or condition is "not reasonable" in the context of indirect discrimination. It has been considered by the High Court in two cases: Banovic and Waters; by the Federal Court in Commonwealth Bank v Human Rights and Equal Opportunity Commission ('Finance Sector Union Case') (1997) 150 ALR 1; Styles v The Secretary of the Department of Foreign Affairs and Trade (1989) 23 FCR 251, Commonwealth v HREOC (1995) 63 FCR 74, and others. In this Tribunal it has been considered by Appeal Panels in The State of New South Wales v Amery & Ors (EOD) [2003] NSWADTAP 16, Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26 and more recently, in the context of carers' responsibilities in Gardiner v WorkCover Authority of New South Wales (EOD) [2004] NSWADTAP 1. 66 Sackville J in the Finance Sector Union Case usefully summarised the applicable principles (at 32 –35): Firstly, "the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. … The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account." (per Bowen CJ and Gummow J in Styles at FCR 263; ALR 634) Because the test is objective, the subjective preferences of the complainant cannot be determinative of the reasonableness of the requirement or condition, although subjective preferences may be relevant. Secondly, the question whether the requirement or condition is unreasonable must be uninfluenced by any concept of discrimination which exists outside the statutory definition. Thirdly, the complainant bears the onus of establishing that the requirement or condition is unreasonable in the circumstances of the case. Any difference in the treatment of the complainant compared with other employees is not prima facie discriminatory and therefore unreasonable. Fourthly, while non-reasonableness is a question of fact for the Tribunal, the failure to consider a relevant factor in the circumstances of the case is an error of law. Relevant factors differ from case to case, but will usually include the financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the complainant. It may also be relevant to consider the availability of alternative approaches which would achieve the objectives of the alleged discriminator, but in a less discriminatory way. Reasonableness:- "…must be determined by reference to the activity … in which the putative discriminator is engaged. Provided the purpose of the activity … is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity … There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity … ; secondly, whether the activity could be performed ... without imposing a requirement or condition that is discriminatory … or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity … and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable." (per Brennan J in Waters at 378) Fifthly, it is no part of this exercise to determine whether the decision to impose the requirement or condition was the correct one. The question is not simply whether the alleged discriminator could have made a better or more informed decision. The presence of a logical and understandable basis for the requirement or condition is a factor in determining whether the requirement is reasonable. Submissions 67 The Applicant argues that the Tribunal may consider the following factors relevant to the question of reasonableness: • the extent of any discriminatory effect; • the reasons for the requirement; • any efforts (or lack of them) by the Respondent to accommodate through less discriminatory options. 68 The Applicant asserts that it is clear that the result of the Respondent's decision was that she was forced to choose between full-time employment and the care of her child. She was in effect given no option but to resign. This detriment must be assessed against her history with the Respondent and ongoing employment since 1996. Her performance reviews were all positive and she had a good working record. The detriment was therefore significant. 69 She also contends that the Respondent has never adequately explained its reasons for rejecting her proposal. It is submitted that they have varied over time. On 16 May 2001, the reason stated was that her position was full-time and there was no entitlement to part-time work. It was also suggested that the proposal, if adopted, would cause "chaos" and that there may be a "floodgates" effect. No evidence has been provided to support any of these assertions, according to the Applicant. 70 Moreover, the Applicant submits that there has never been any proper assessment by the Respondent of how her needs might be accommodated and of alternatives which might enable her to work part-time. From the Respondent's point of view, it was full-time work or nothing. There was no consultation with Mrs Reddy. There was no trial of her proposal. 71 The Applicant contends that there are no notes or records of the meetings on 7 and 9 May 2002 which apparently took place to discuss the proposal; that the Respondent did not take appropriate advice on the discrimination issues which may arise; that it apparently had no policies or practices in place to deal with maternity leave and the worker's rights on return to work; that it provided no significant evidence of any actual or potential adverse impact on its operations if the Reddy proposal was adopted; that it was aware of its obligations under Part 6 in relation to the Industrial Relations Act 1996 concerning workers' rights to negotiate part-time work arrangements; and that it did not engage in any meaningful negotiations with Mrs Reddy concerning part-time work. All these factors combine to show that the Respondent was unreasonable in the position it took towards Mrs Reddy's proposal in that it gave it short shrift without any serious consideration. In short, it dismissed the proposal as an inconvenience notwithstanding the potentially devastating impact the decision may have on Mrs Reddy's capacity to remain in employment with the company. 72 The Respondent argues, in effect, that it was the Applicant whose conduct was unreasonable. It contends that she failed to take reasonable steps to secure adequate childcare for her baby and, significantly, failed to advise the Respondent of her difficulties in securing a childcare place in a timely fashion. Further, at the time she sought to persuade the Respondent to allow her to work part-time, she was seeking part-time work elsewhere. When she finally notified the Respondent of her proposal, she provided no meaningful reasons for the request to work part-time. The Respondent submits that it was she, in effect, who failed to make contact with the company to discuss the situation and she, in effect, who presented the company with an ultimatum. 73 The Respondent listed a number of operational difficulties presented by the Applicant's request. They included the problems of finding another person to cover her position when she was absent; the extra work involved for others in training or briefing her replacement; the potential for loss of business if she were not able to be contacted when on-call out of the office; the additional costs of handover procedures; and the additional costs associated with her working from home when on-call. 74 The Respondent argues that it is a small company in a highly competitive industry, working with high turnover and small profit margins. The additional burden inherent in the Reddy proposal was, it argues, not able to be reasonably shouldered. It argues that serious consideration was given to the proposition but that, given the fine margins involved in the business, it simply lacked the capacity to accept it, especially given the short lead-time available. Findings and Conclusions 75 Mrs Reddy bears the onus of establishing that the requirement that she work full-time was not reasonable in all the circumstances. 76 As pointed out by the Applicant, the extent of the discriminatory effect was dramatic. She had no option but to resign from a full-time senior position she had held for six years. It is common ground that she was a valuable employee and had played an important role in building the Respondent's business. 77 While not determinative, it is relevant to examine how the Respondent reached the conclusion it did that Mrs Reddy's proposal, and, indeed, part-time work in general, was simply unworkable. 78 It is submitted for the Respondent that its decision could not be characterised as a knee-jerk reaction. In our view the chronology suggests otherwise. Management were presented with a proposal which apparently came as a surprise and which was quickly dismissed. The speed with which the proposal was rejected in itself raises a suspicion that little or no thoughtful consideration was given to it. Certainly there was no discussion with Mrs Reddy concerning the company's difficulties with her proposal and there was no evidence given of any exploration of other options. No consideration, for example, appears to have been given to a job-sharing arrangement or some other arrangement. Nor is it clear, what, if any, consideration was given to whether some or all of the concerns identified by Messrs Lipton, Timmerman and Kyriakides, could have been addressed through the planned restructure of the customs section. Indeed, it is not altogether clear whether the conclusion that it "just couldn't work" was based on an assessment of the feasibility of the proposal under the existing or proposed structure of the customs section, or indeed whether Messrs Timmermann or Lipton were familiar with the details of the latter. On the Respondent's own evidence, Mrs Reddy would be returning to a section where she was no longer the sole manger, but instead was to work alongside Mr Gunn, the newly appointed National Customs Manager. Nor is it clear whether any serious consideration was given to whether the proposal could be made to work at least in the short or medium term. 79 None of the managers responsible for the decision had worked as, or directly managed, customs brokers. Mr Kyriakides had little direct knowledge of Mrs Reddy's capabilities or limitations as a manager, having only worked with her for a short period before she took leave. In that context, the decision not to speak with her about her proposal is especially surprising. She was, after all, the longest-serving customs broker in the company and, apart from Mr Gunn, its only customs manager. While her opinion about the feasibility of her proposal could hardly be expected to be disinterested or objective she did have first-hand experience of the demands of her role and how the section operated, at least under the structure that existed before she took leave. That information could reasonably have been expected to assist management make an informed decision. As the Respondent correctly points out, Mrs Reddy took no steps to speak to Mr Timmermann or Mr Kyriakides despite the invitation extended. This may have been foolish and not in her best interests but the issue here is not who should have made the first move, but rather the quality of advice and information available to the Respondent when it reached its decision. 80 As the Applicant pointed out, the stated reason for the Respondent's decision changed over time. Initially the reason given was that there was no entitlement to part-time work; later that it would necessitate an entirely new management regime and later still that it would lead to chaos. From the evidence given to us, the key concern appeared to be that she would not be readily accessible to staff and clients to sort out "problem jobs". Mr Kyriakides asserted that problems requiring the manager's attention arose almost daily and that a significant proportion of Mrs Reddy's time would be expected to be spent on operational matters. She claims that both estimates are grossly inflated. The reliability of her estimates must be questioned given that she was away from the company during a period of some purported growth. Equally, the Respondent's estimate suffers to an extent as it was based primarily on Mr Kyriakides' observations of the less experienced Mr Gunn, in a department, which on the Respondent's case was down one person awaiting Mrs Reddy's return. While the parties cannot agree on the frequency with which these problems might arise, it is common ground that it was inevitable that matters would arise when Mrs Reddy was away from the office which would need to be dealt with promptly. 81 On the evidence, there appears to have been no real consideration ever given to a trial of Mrs Reddy's "on call" proposal. In days of advanced and relatively cheap communications, it does not appear to have been a startlingly visionary and experimental idea for a company to have someone on-call with the capacity to respond immediately. Of course, it must have followed that if Mrs Reddy let the company down by failing to respond to any calls upon her while on stand-by that she would both jeopardise the scheme and her employment prospects with the company. Neither does any real consideration seem to have been given to whether Mr Gunn or some other person could have acted as a back up to Mrs Reddy while she was out of the office. Mr Kyriakides told us in evidence that he thought this would have been "unfair", but it is unclear whether this was given any serious consideration at the time the decision was made. While the Respondent's managers may each have held the honest belief that Mrs Reddy's proposition would lead to chaos, loss of business or added costs it is difficult to accept that that would have been the case without some testing of the scheme or at the very least a detailed and through assessment and costing of the proposal. 82 The argument on costs is particularly difficult to accept. The Respondent asserts that the proposal would have resulted in significant additional costs. The Respondent cites, among other things, the cost of maintaining contact with Mrs Reddy - purchase of computer hardware, payment of telephone calls and an on-call allowance and possibly the costs of replacement staff. What does not seem to have been taken into account were any possible costs savings that might have flowed as a result of Mrs Reddy's proposal. As a starting point it involved a reduction in her salary of approximately 40 per cent. In addition, little if any regard seems to have been given to the cost to the company of replacing her. The training of replacements is expensive principally because of the time involved and the consequential loss of efficiencies. There are obvious efficiencies and savings for any organisation in retaining experienced, well-trained staff. In this case, the company was faced with the choice of either losing a trained, efficient member of staff or allowing her to work in the office part-time and be on-call at home. 83 It is reasonable to infer that, with its small margins and lean structure, the company had little organisational fat to shed and that if Mrs Reddy did not return on a full-time basis she had to be replaced one way or another. The question for management, one would have expected, must have been how to do this in the most cost-effective fashion, yet that does not seem to have been considered. No evidence has been provided of any process within the company to weigh the alternatives. It is evident that the conclusion was quickly reached that there was only one answer to the question – Mrs Reddy must come back full-time or not at all. This has the hallmarks of an ill-considered, short-term decision that failed to address all the issues. 84 While we accept that the adoption of Mrs Reddy's proposal may well have involved some material degree of inconvenience to the company, at least in its teething stages, the evidence suggests that it was dismissed out of hand with very little serious consideration. Not only did the company apparently fail to consider its own best interests, even less consideration appears to have been given to the adverse effects on Mrs Reddy by requiring her to work full-time. She simply had no option but to resign and search for alternative, part-time employment. No effort at accommodation was made or even seriously considered. No satisfactory reasons have ever been provided for this failure on the Respondent's part. 85 The Respondent contends that it was she, not it, who acted unreasonably by leaving child care arrangements to the last minute, by the tone of her "demand" and her failure to get in contact with either Mr Kyriakides or Mr Timmerman despite their longstanding, open-door policy. Mrs Reddy may not have acted with perfect forethought in seeking childcare for her daughter but it appears to us that she took reasonable steps to secure a childcare place. The company complains that it had only two months to consider her request. While this may have stretched things somewhat, it seems to us that two months ought to have been sufficient time to consider the proposal, weigh the alternatives, discuss any possible variants of the plan and to have implemented a trial. We therefore cannot conclude that Mrs Reddy acted unreasonably in the way she approached the problem that confronted her. She had a child to care for, a job to return to and she sought to address that dilemma. But in any event it is not the reasonableness or otherwise of her conduct that is in issue, rather it is the reasonableness of the requirement that she work full-time. Her conduct is only relevant in so far as the timing of the request and any response or otherwise to any alternatives that may have been proposed is one of the factors to be considered in determining whether, in all the circumstances, the requirement was unreasonable. 86 Ms Nomchong has taken us to the recent decision of the Victorian Court of Appeal in State of Victoria v Schou [2004] VSCA 71 (30 April 2004). The Respondent in the appeal, Ms Schou, was employed by Hansard as a sub editor. Hansard provided staff to record, report and edit debates of the Legislative Assembly, the Legislative Council and various committees. At first instance the Victorian Civil and Administrative Tribunal (VCAT) found that by requiring Ms Shou to attend work full-time at Parliament House on house-sitting days ("the attendance requirement"), her employer had indirectly discriminated against her by reason of her status as a parent and a carer. The Tribunal found that there was a reasonable alternative available to requiring attendance on site during sitting days: namely, the installation at Ms. Schou's home of a modem which would allow her to work "on line" while remaining at home to care for her child (the modem proposal). 87 In the leading judgement, Phillips JA held that the VCAT had erred by concentrating on the feasibility of the modem proposal and whether or not it was reasonable without first considering the primary question as to whether or not the requirement imposed by the employer, the attendance requirement was reasonable. His Honour considered that the Tribunal had been "seduced" by the argument put on behalf of Ms Shou that, because there was a reasonable alternative available, the condition or requirement for attendance on site during sitting days was itself not reasonable. His Honour pointed out that "one does not follow from the other" and referred to the following passage of Beaumont, J in the Finance Sector Union case: - "The Commission refers to the circumstance where an alternative requirement or condition could have avoided or ameliorated the disadvantage experienced by the complainant. That is certainly a factor to be taken into account. But the fact that an alternative could have been adopted does not of itself render a condition which is 'appropriate and adapted to the activity in question', to use the Commission's words, unreasonable. Section 5(2) required a finding that the requirement or condition be 'not reasonable'. The whole of the circumstances must be examined." 88 Ms Nomchong urges us not to fall into the same error and conclude that because there is a reasonable alternative available (which is not conceded) the requirement to work full-time is necessarily not reasonable. We accept that argument. An assessment of whether a particular requirement is not reasonable cannot be answered by simply asking is a practical and feasible alternative available. However, it is abundantly clear from the authorities that the availability and feasibility of an alternative/s cannot be ignored. Callway JA, in a dissenting judgement in Shou, referred to the often-quoted passage of Brennan J in Waters : "But even where the imposition of the particular requirement or condition is appropriate and adapted to the performance of the relevant activity or the completion of the relevant transaction, it is necessary to consider whether performance or completion might reasonably have been achieved without imposing so discriminatory a requirement or condition." 89 The requirement that Mrs Reddy a senior manger work full time appears "appropriate and adapted". The Respondent's managers were understandably concerned that an unstable management structure in the customs section might jeopardise customer relationships and, ultimately, profitability. Any assessment of reasonableness requires these concerns to be given proper and full consideration. But as Justice Brennan makes clear, whether a requirement is "appropriate and adapted" is but one of the questions that needs to be asked. Having made that assessment it is necessary to go on and also ask whether the activity could be performed ... without imposing a requirement or condition that is discriminatory . In our opinion, the Respondent failed to give proper and full consideration to whether Mrs Reddy could perform her role on a part-time basis either under the model she put forward or some variation thereof. 90 For all these reasons we conclude that the requirement was not reasonable in all the circumstances. Summary 91 In conclusion, we are satisfied, on the balance of probabilities, that the Respondent required employees in the customs section to comply with a requirement to work full-time and Mrs Reddy was unable to comply with that requirement. We are also satisfied that a substantially higher proportion of employees without carers' responsibilities were able to comply with this requirement or condition, and that the requirement was not reasonable in all of the circumstances of the case. For the reasons as stated, we are satisfied that the Respondent unlawfully discriminated against Mrs Reddy on the ground of carer's responsibility contrary to section 49V(2)(a) of the Act. 92 Given our findings above, we do not consider it necessary to determine the Applicant's alternative claim that the Respondent's conduct contravenes s 25(2). Relief 93 The Applicant seeks an order for damages under s 112 of the Act. 94 We accept the Applicant's claim that as a result of the Respondent's conduct she felt stressed and humiliated, sought medical assistance and attended counselling. We do not accept the Respondent's contention, as we understand it, that Mrs Reddy's feelings of anxiety and report of sleeplessness might have arisen because she was a new mother. Mrs Reddy might have been predisposed to feelings of anxiety because of that but the Respondent is not entitled to a discount on that basis. It is a well-established principle that the discriminator takes their 'victim' as they find them. 95 It is always difficult to determine the appropriate level of damages for non-economic loss in a case of unlawful discrimination and this case is no exception. However an Applicant ought not be deprived of damages on that account (see Wilcox J in Hall v Sheiban (1985) ALR 503 at 543). In the circumstances of this case, we believe $15,000 to be an appropriate sum. 96 The Applicant also seeks compensation for loss of income. We are satisfied that as a consequence of the Respondent's conduct Mrs Reddy was unable to return to work. In our view it is not essential to explore whether, as the Applicant contends, that the Respondent's conduct amounted to constructive dismissal. It is enough that it be established that her inability to return to work and consequent loss was a direct and natural consequence of the Respondent's conduct. We are satisfied that the imposition of the discriminatory requirement materially contributed to her loss. 97 The Applicant claims an amount of $8,630.24 under this head, calculated on loss of income from 20 June 2002 (the date used by the Respondent to calculate termination benefits) and 2 September 2002 when she secured employment with Bax Global. We accept the Respondent's argument that damages for economic loss should be limited to the two weeks commencing from 18 August 2002, the date she indicated she would be available to return to work i.e. $1,385. 98 A claim is also made for aggravated damages. Ms Eastman has taken us to a number of cases in this jurisdiction where an award for such damages has been made: Font v Paspaley Pearls (2002) EOC 93-232 and Spencer v Dowling [1997] 2 VR 127. Aggravated damages may be awarded where the Respondent's conduct after the initial wrong may have caused the damage suffered by the complainant to be aggravated or increased. 99 The conduct relied upon by the Applicant is the letter from the Respondent's solicitor to the Board dated 18 February 2003, especially the last page: "Mrs Reddy's baseless allegations are offensive, misconceived and deeply disturbing to him [Mr Timmerman] as a businessman well respected in the local and international fields of his business. He has instructed me to explore all avenues of redress against Mrs Reddy for the personal damage she has caused him." 100 Mrs Reddy's evidence was when she turned to and read the last page she was almost speechless. She felt intimidated and rang her husband at work seeking some comfort from whether the company could bring proceedings against her for taking a complaint to the Board. It is difficult to conclude other than that this extract of the offending correspondence was ill considered. 101 It is not always easy to distinguish between conduct, which will attract an award of aggravated damages and that which will not. It is often a question of degree. The Applicant is entitled to be fully compensated for all her suffering that resulted from the Respondent's unlawful acts including that part which was magnified or exacerbated by its later conduct. In our view in the circumstances of this case the ordinary measure of damages will compensate her for this loss and we have determined not to award additional compensation by way of aggravated damages. Costs 102 The Applicant has sought and is granted the opportunity to make submissions as to costs. Orders and Directions 103 In relation to the claim of discrimination on the ground of carer's responsibilities, we order that the Respondent pay the Applicant within 21 days damages in the sum of $16,385. 104 The Applicant to file and serve any submissions as to costs within 14 days. The Respondent to file and serve in reply within 14 days of receipt of the Applicant's submissions.

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