Monday, 29 August 2022

Update: VCAT awards $12,000 to home-schooling mother who was replaced with a more ‘reliable’ employee

What happened in this case?

Pearly Whites Pty Ltd operated a dental clinic, which employed a pool of six casual dental assistants. During the COVID-19 pandemic, it hired a new permanent employee who worked a minimum of 30 hours per week. In light of this, it sought to reduce the casual pool and decided to terminate the employment of the Applicant, Fiona Carpenter.

The director of Pearly Whites advised Ms Carpenter that “due to current challenging circumstances and the need for more stability at the workforce” he had hired a new permanent staff member and that he was unable to offer her any more casual shifts.

Ms Carpenter was a parent to two school aged children, and not able to attend her allocated casual shifts due to school closures during the height of the COVID-19 pandemic. She was at the time in receipt of JobKeeper payments and had also recently injured her foot.

Ms Carpenter alleged that she was chosen for termination due to her family and career responsibilities, and therefore discriminated against.

Conversely, Pearly Whites contended that Ms Carpenter had been chosen due to alleged misconduct some years prior, as opposed to the other casual employees who had not engaged in misconduct.

The Decision

The Victorian Civil and Administrative Tribunal (VCAT) found that Ms Carpenter was directly and indirectly discriminated against based on her parental or carer status, due to her family responsibilities and limited availability.

Under the Equal Opportunity Act 2010 (Vic) (EO Act), an employer must not discriminate against an employee based on any protected attributes, such as (but not limited to) parental status or status as a carer. In assessing whether direct discrimination has occurred, it must be the substantial reason behind an employer’s decision – not the only or dominant reason.

Whilst finding that Ms Carpenter’s previous misconduct formed part of the reason for her selection, ultimately VCAT found that her family responsibilities and limited work availability were the substantial reasons for her dismissal.

VCAT found that Pearly Whites treated Ms Carpenter unfavourably by:

  1. Directly discriminating against her by choosing her for termination based on her parental/carer status; and
  2. Indirectly discriminating against her by imposing a requirement that employees needed to be more reliable and available at other days and hours.

Further, VCAT found that imposing such requirement was unreasonable, particularly given that Pearly Whites could have continued to employ Ms Carpenter with little impact on the business from a cost perspective (including Ms Carpenter being in receipt of JobKeeper payments at the time of the dismissal).

Ms Carpenter was subsequently awarded $10,000 for economic loss and $2,000 in general damages. Both Pearly Whites and the director were found to be separately liable.

What can employers do to avoid similar types of claims?

This case highlights the need to ensure the termination of an employee is not based on a protected attribute, whether under Federal or State anti-discrimination laws or the Fair Work Act.

A failure to do so may result in a discrimination claim – either in the Federal or State Human Rights Commissions, VCAT or the Fair Work Commission (through a ‘general protections’ claim).

If your workplace requires refresher training on anti-discrimination laws or any advice on steps that should be taken prior to making any termination- related decisions, please get in touch with the HR Legal team.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.