Requirement to work full-time hours is not always discriminatory

The Case

Lipman v Commissioner of Police (2015)

Ms Lipman was a leading officer with NSW Police. In 2011 Ms Lipman returned to work part-time following her return from maternity leave. In 2013, Ms Lipman applied for and accepted a promotion to sergeant, which was a full-time position, with the hope that she could negotiate part-time hours once in the position.

Although she was able to negotiate part-time hours, her employer offered her more hours than she could accept. Ms Lipman could do 10 12-hour shifts each roster cycle, but was offered either:

14 12-hour shifts at Rosehill Station; or
17 12-hour shifts at Campsie Station.

Ms Lipman claimed that her employer had discriminated against her on the grounds of her carer’s responsibilities by not providing the requested part-time hours. Ms Lipman also claimed she had been victimised when offered the Campsie position at even greater hours (which they knew she could not accept), having already rejected the Rosehill offer.

NSW Police argued the hours offered to Ms Lipman were essential due to the operational requirements of the position.

The Verdict

The Administrative Decisions Tribunal (ADT) dismissed Ms Lipman’s claims of discrimination and victimisation. The ADT considered whether Ms Lipman had been treated less favourably than any other person who wanted to work part-time because she had carer’s responsibilities, and held there was no less favourable treatment.

Ms Lipman claimed she had been indirectly discriminated against because there was a requirement she work full-time. The ADT dismissed this complaint as Ms Lipman had been offered part-time work in both roles and was not required to work full-time.

The ADT also dismissed Ms Lipman’s victimisation claim because there was no evidence that she had been offered more part-time hours at Campsie Station because she had rejected the part-time hours offered at Rosehill Station.

The Lesson

This case demonstrates that it is not always unlawful for an employer to refuse part-time work arrangements if the position requires greater hours. However, you must have a sound business case to support this. You must always genuinely consider flexible work arrangement requests to reduce your legal risks. If in doubt, seek legal advice.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.