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In the recent case Bair v Goldpath Pty Ltd & Callinan [2010] QCAT 483 (the Bair case) , a potential employer asked questions in an interview which contravened section 124 of the Anti-Discrimination Act 1991 (Qld) (the Act).
Section 124(1) states ‘A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based’.
Don’t Go There
Would asking a candidate their date of birth, whether they have children, and what their general health status is like, amount to discrimination?
Discriminatory conduct is expressly prohibited under the Act, and due to the reverse onus of proof for employment discrimination claims under the Fair Work Act 2009 (FWA), should be avoided in every state and territory.
Section 351(1) of the FWA states:
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Modern awards are to exclude any discriminatory terms based on the same areas mentioned in section 351.
What happened in the Bair case?
The interview process is treated as an area of activity where discrimination is prohibited ie the pre work area.1 Discrimination may be direct or indirect action where the aggrieved party due to the action, suffers loss or damage, opportunity or in Mr Bair’s case, making him feel “totally humiliated”.
If an employer asks questions relating to an attribute of a candidate which is listed in section 7 of the Act, it could amount to a claim of damages against the employer. Mr Bair’s claim included compensation for $5000, that the potential employer undertake further training by an accredited human resource training professional, and implement new training systems for staff who interview candidates to avoid any further actions of discrimination. However, the sitting Member of the Queensland Civil and Administrative Tribunal ordered that a formal apology be provided instead of awarding damages.
Testing for Behavioural Competence
In Hopper & Others v Virgin Blue Airlines Pty Ltd [2006] QADT 9 employment candidates were asked to participate in a group assessment process to assess “behavioural competencies”, including assertiveness, team work, communication and “Virgin Flair”. “Virgin Flair” competency was defined as “a desire to create a memorable experience for customers. The ability to have fun, making it fun for the customer”.
The assessors were young, and were found to have unconsciously selected people of their own age as having the ability to have “fun”. Only one person of 36 years of age was employed from over 750 people candidates. Each complainant was awarded $ 5000 for personal damages.
Forced Medical Assessments
In Vickers v the Ambulance Service of NSW [2006] FMCA 1232, the complainant, who was a registered nurse at the time, applied for the position of trainee ambulance officer with the Ambulance Service of New South Wales. He was asked to undergo medical assessment as part of the recruitment process. Medical reports provided to the employer revealed that Mr Vickers had diabetes requiring insulin injections. The employer rejected Mr Vickers applicable on medical grounds. The policies of employment were reviewed as part of the matter.
Under s 15(1) of Disability Discrimination Act 1992 (DDA):
It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person's associates…
It was argued that the diabetes condition was treated by the employer as a disability which went against the inherent requirements of the employment. Raphael FM stated:
It follows from the above that I do not believe that the respondent can avail itself of the defence set out in s 15(4) of the DDA and I am bound to find that it has unlawfully discriminated against Mr Vickers.
Vickers was granted the right to continue through the process of his application for the position to the next stage.
What can an employer do to prevent claims?
< When developing selection criteria for the position, ensure that criteria is consistent with the job specifications, that is the skills and experience required on a regular basis to carry out the duties of the position. Detail what are essential skills and experience desirable for the position.
< Check whether any formal qualification or tickets etc are required to perform the work such as a forklift ticket in the Bair case.
< In advertising the position, check that the words used match the selection criteria and job specification.
< When conducting the interview, ensure that notes are taken against the selection criteria, with predetermined questions used.
< Allow applicants to demonstrate what they have to offer the position.
< It is appropriate to ask people with disabilities whether they require any adjustments to perform the work.
< When ranking the applicants, do so in accordance to performance against essential and desirable job specifications.
Questions in the interview should be against the selection criteria or worded without any direct or indirect element of discrimination. For instance it would be acceptable to ask the following questions:
< Are there any factors that would prevent you from meeting the requirements of the position?
< The position requires a significant amount of interstate travel. Are you able to meet this requirement?
In the Bair case the sitting member of QCAT provided an important reminder to employers2:
This case highlights the unnecessary and avoidable risks small businesses take when they do not take the time and make the effort to update internal policies and procedures in order to ensure legal and statutory compliance. I trust that Mr Bair’s efforts in this case will serve as a reminder to small businesses to keep abreast of legislative and statutory changes in the future.
For further assistance, please contact Gary Woodman, Partner or Lisa Sylvester, Knowledge Manager on 1300 369 581.
Article by Lisa Sylvester - Knowledge Manager.
1 Section 14 Anti-Discrimination Act 1991 (Qld) 2 At paragraph 35 [2010] QCAT 483
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PLEASE NOTE: This article is not legal advice and our comments are of a general nature only. This document is not to be relied on as substitution for proper detailed legal advice.
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