Court hands down crucial decision regarding 'unconscious bias'
The Victorian Supreme Court of Appeal recently dealt with a case involving a worker allegedly discriminated against in the workplace based on sex and age.
The worker, seeking a lift in her remuneration from Austin Health, claimed she was blocked from doing so despite other male subordinates having a higher salary than her.
She said she the hospital “denied or limited her access to benefits connected with her employment, namely, the opportunity to negotiate her remuneration,” among other discriminatory allegations.
Was there workplace discrimination?
Around January 2009, the worker was employed at the hospital as an orthotist/prosthetist when a year later, she was promoted to orthotic/prosthetics department manager.
"She was given a higher classification under the relevant enterprise agreement and paid in accordance with the rates specified therein," the Court said.
Throughout her employment, the worker was paid at, but not above, the rate defined in the relevant industrial agreement.
As the department manager, she managed 14 employees, 10 of whom were male. The Court noted that of the 10 male employees, six were paid above-agreement remuneration, and all were classified at a level higher than their role actually attracted.
One of the employees managed by the worker who was paid above the rates specified in the enterprise agreement was recruited in 2009.
The employer said the employee was paid higher than the manager because he was originally employed in a special revenue-raising role, which had long since been discontinued.
Given the circumstance, the worker asked her employer to negotiate her remuneration on no less than six occasions between 2011 and 2014. However, in each of her attempts to negotiate, she was "blocked" by the employer.
Around June 2018, the worker wrote to the hospital summarizing her past requests to negotiate the above-agreement remuneration noting that one of the workers she managed was being paid $41,000 per annum more than her.
In response, the employer stated in a letter that two men who worked under the worker were paid above-agreement remuneration because they had "transitioned to a more appropriate" enterprise agreement.
However, in the letter, the employer was silent about the worker's request to negotiate her remuneration. Hence, the worker commenced proceeding.
Initially, the Victorian Civil and Administrative Tribunal (VCAT) dismissed the worker's complaint. However, she successfully appealed to the Victorian Supreme Court, with the latter having decided that the employer had engaged in "systemic discrimination by a large organization."
Consequently, the employer sought and was granted leave to appeal to the Court of Appeal.
Ultimately, the Court of Appeal upheld the Supreme Court's decision wherein the "unintentional discrimination or unconscious bias" implied that the employer was involved in unlawful discrimination.
The Court further said that in determining whether a person directly discriminates, it is irrelevant whether or not that person is aware of the discrimination or considers the treatment unfavorable.
Meanwhile, in terms of the Tribunal's previous decision on the case, the Court of Appeal noted that the Tribunal did not have regard for the complex picture of the unfavorable treatment advanced by the worker, which included:
- Her repeated requests to negotiate her salary which were all denied or avoided by the managers
- Other men being paid above-agreement salaries
- Operation of structural inequality and unconscious bias in the workplace, shown in the evidence that the hospital had an overrepresentation of employees on above-agreement salaries, and all of those workers were men.
The Court of Appeals junked all of the employer's nine appeal grounds as it found that it was engaged in systemic discrimination on the basis of sex.