The Saturday Shift
'Harbourline Support', a Hobart call centre with 14 employees and an annual turnover of about $1.6 million, advertises a receptionist role: 'Must be available Saturdays; ability to lift 10 kg.' Amira, who is Muslim and wears a hijab, applies and is the strongest candidate on skills. She tells the interviewer she cannot work Saturdays for religious reasons but can work any other day, including Sundays. The interviewer ends the call. Separately, Sam, who uses a wheelchair, applies for the same role and asks for a $6,000 height-adjustable desk and a modified doorway. The manager says the cost is too high. Both complain.
1. What legal framework governs both complaints, and where would each be brought?
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Both complaints are primarily governed by the Anti-Discrimination Act 1998 (Tas), which prohibits discrimination in employment on grounds including religion and disability. It covers both:
- Direct discrimination - treating a person less favourably because of an attribute (refusing Amira because she is Muslim; refusing Sam because he uses a wheelchair).
- Indirect discrimination - imposing a requirement or condition that disadvantages people with an attribute and is not reasonable in the circumstances. 'Must be available Saturdays' is the obvious candidate here.
The Tasmanian Act also imposes a positive duty to make reasonable adjustments for a person with a disability.
The process is a complaint to the Anti-Discrimination Commissioner (Equal Opportunity Tasmania), which attempts conciliation. If conciliation fails, the matter proceeds to the Tasmanian Civil and Administrative Tribunal (TASCAT). Commonwealth law provides alternative forums - the Disability Discrimination Act 1992 (Cth) and the general protections provisions of the Fair Work Act 2009 (Cth). A complainant must choose a forum and cannot recover twice for the same conduct.
2. 'Must be available Saturdays' - for Amira, is that discrimination, or a legitimate requirement of the job?
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The answer turns on whether Saturday availability is a genuine inherent requirement of the particular role, and that is assessed by reference to the actual job - not the employer's preference, convenience or habits.
Ask: does the receptionist's work genuinely have to be done on Saturday? This is a 14-person call centre. On the facts, another employee could be rostered on Saturday, and Amira has offered every other day including Sunday. A requirement that is not truly inherent cannot be used to screen out a person with a protected attribute. Refusing her on that basis would be direct discrimination on the ground of religion.
If the requirement is treated as neutral on its face, the analysis shifts to indirect discrimination: the condition disadvantages Muslims (who observe Friday prayers and, for some, a Saturday Sabbath cannot be assumed - the point is that observance patterns vary), and the employer must then show the condition is reasonable. The tribunal would weigh the nature of the employment, the employee's circumstances, the consequences of accommodating her, and the effect on other staff. A small employer can more easily show a requirement is reasonable; a 14-person firm with a roster is in a weaker position.
The employer cannot simply assert the requirement. It must prove it. Note also that a blanket rule - no exceptions, ever - is usually the weakest defence, because it shows no individual assessment was made.
3. For Sam, is $6,000 genuinely 'too expensive'? Apply the reasonable adjustment test.
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Cost is relevant but not decisive. 'Reasonable adjustment' is a proportionality question, not a binary one. Neither 'any cost is too much' nor 'no cost is too much' is the correct test.
The tribunal would consider:
- The employer's capacity: turnover of about $1.6 million with 14 staff. A $6,000 one-off cost is a modest fraction of that, though the tribunal would look at profitability, not turnover alone.
- The benefit: the adjustment enables a qualified candidate to do the job, and may be a one-off capital cost that also benefits future employees and customers.
- Alternatives: is there a cheaper way? A portable ramp, a different desk, or reconfiguring the workspace may achieve the same result. A refusal without investigating alternatives is very hard to justify.
- External funding: the Commonwealth's Employment Assistance Fund (JobAccess) can fund workplace modifications, which reduces the employer's net cost. A manager who did not check this has not made a proper assessment.
- Proportionality to the business: a two-person business with a $90,000 turnover might reasonably refuse the same $6,000. Context changes the answer.
The strongest conclusion is that the manager's bare assertion of cost, without assessing alternatives or available funding, is unlikely to satisfy the duty to make reasonable adjustments. But the answer should recognise the genuine outer limit - an adjustment whose cost is grossly disproportionate to the business can lawfully be refused.