Richold v State of Victoria, Department of Justice (Anti-Discrimination) [2010] VCAT 433

Mr Bill Swannie of Counsel, instructed by Hounslow and Associates

Mr Phillip Ginnane of Counsel, instructed by Debra Coombs, Manager Legal Services Corrections Victoria

1. Ms Richold was born in Britain in 1968. In 2002 she migrated to Australia. She has two adult sons, one 19 years of age and a daughter 24 years of age. She has two children aged six and four with her husband Danny. The younger of these two children, Lili-Mae is aged four and was born at 24 weeks.
2. Ms Richold's own family is in Britain. Her husband's family live in Melbourne but are unable to give any assistance with childcare. In June 2006 Ms Richold commenced work as a casual prison officer at the Dame Phyllis Frost Centre which is a maximum security women's prison at Deer Park. It houses both sentenced and remand prisoners with three specialist units, a Mental Health Unit, a Drug and Alcohol Unit and a Management Unit.
3. Ms Richold is a casual prison officer. She said:

Casual workers are basically expected to be available seven days a week, 365 days a year, including public holidays and weekends. I often worked 12 and 14 hour shifts, commencing as early as 7.30 am.

1. To provide childcare for her two children she followed a policy of accepting casual shifts only when her husband Danny who was at that time a full-time permanent prison officer was not rostered on. The result was that she was available to work four to five days per fortnight.
2. DPFC employs 252 staff including casuals. Approximately 50 of the custodial staff are casual workers like Ms Richold. The casuals according to the General Manager of DPFC and Tarrengower Prison, Ms Emma Cassar are:

Predominately used for backfilling unplanned leave, including sick leave, carer's leave, and other short-term absences. The sheer nature of unplanned leave is uncertain.

The system of shift allocation must be fair and transparent to ensure all casual workers are offered equitable shifts and equitable earnings.

1. From Ms Richold's commencement of work in June 2006 until 26 October 2008 the shifts were allocated on the basis of casual officers indicating their availability for shift allocations at the beginning of each fortnight. Each individual shift was allocated to the casual officer who had in that fortnight worked the least number of hours. On 23 October 2008 Ms Michelle Armstrong who is the Senior Human Resources Officer at DPFC and operated the staff office sent an e-mail to all affected officers. It began:

I want to take this opportunity to clarify the allocation of Casual hours due to the hours that have been available over the last fortnight.

Please note the HR team keep an accurate total of all hours worked and also shifts that have not been accepted.

Please note for example that if on a day we only had a 14 hospital escort available and you did not want to do this shift 14 hours will accrue on your hours. This is also the same if you refuse to work in a certain area of the prison that shift will be put against your hours.

If you 160 for 2 or more days on the third day and for each day after you with [sic will] accrue 8HRS against your total this is in fairness of people that are working during the week and are unable to get penalty shifts on the weekend due to there [sic] hours worked.

This new policy was to take effect on 26 October 2008.

1. Apparently, there had been complaints amongst casual prison officers with some of their number nominating themselves unavailable to accept shifts during the ordinary working week leaving them available to take shifts at weekends which attracted penalty rates, in the case of Sunday shifts - double time. The ordinary rate for casual shifts was 125% of the amount paid to permanent officers and shifts worked by casual officers on Saturday was 140% payment relative to the ordinary shift rate for a permanent officer. The result according to the critics was that a number of officers were working far fewer hours but gaining the same income as those who worked far more hours during the ordinary working week.
2. An officer who advised the staff office that he/she was '160' stated that the casual officer was unavailable to do shifts on the relevant day. The effect then was that if an officer declared himself/herself unavailable for two days for shift allocation purposes the officer would be deemed to have worked eight hours on the third day. Apparently this system went back to zero at the end of each fortnightly period.
3. According to Ms Richold:

When the new policy commenced, the number of shifts I was offered and worked reduced to 1 - 2 shifts per fortnight. My earnings dropped to approximately $200 (gross).

This was in contrast she said to her average weekly earnings prior to 26 October which she estimated at $818 (gross).

I realised that the [new] policy as it was, actually discriminated against people such as me, who by virtue of their parental responsibilities would have to decline some shifts and would be unavailable to work as regular as was expected of them. By doing so, they would then fall foul of the policy and be adversely affected.

1. On the basis of this grievance she informed the Operations Manager at DPFC, Ms Agius that the new policy would disadvantage her because of her responsibilities 'as a parent and carer'. According to Ms Richold she told Ms Agius that the policy was unfair, discriminatory and unlawful. Ms Agius gives a different account of the conversation.
2. On 25 October 2008 Ms Richold said she lodged a 'formal complaint' regarding the policy with Ms Marlene Gorman who is the Equal Opportunity Officer at DPFC. She sent the complaint by e-mail. She said that in the week commencing 23 November 2008 whilst being available to work four shifts she was offered and worked only one shift. In the fortnight commencing 7 December 2008 she was offered and worked two shifts, a total of 16 hours but was available to work four shifts. For both fortnights the new policy had her deemed to have worked 40 hours. The result she said was that her income was dramatically reduced. She said:

I was distressed about my financial situation and my ability to pay household expenses and to provide for my family. This occurred immediately before the Christmas period when household expenses such as food and presents, greatly increased.

1. The result was she said, an impairment of her confidence and self-esteem. Then on 29 November 2009 she spoke to the author of the e-mail, Michelle Armstrong, also known as Michelle Henderson. She asked Ms Armstrong to accommodate her responsibilities but according to Ms Richold, was told that Ms Henderson 'could not be flexible'. She did not believe proper consideration was given to her request.
2. On 3 December Ms Richold said another officer called asking if she had been offered a shift. The other officer had been offered but declined a shift having already worked 32 hours. No offer had been made to Ms Richold.
3. Nevertheless, from the fortnight commencing 21 December 2008 Ms Richold perceived that she was offered the same number of shifts as before the new policy had been introduced. She concluded that the new policy was not being applied to her, nevertheless she said it did apply to other prison officers and she experienced some hostility from those who believe she received special treatment. Nevertheless, Ms Richold said she was concerned that the new policy would be reinstated against her 'when the complaint died down'. She had made a complaint to the Equal Opportunity Commission on 11 December.
4. On 27 February 2009 Ms Richold was offered a 12 hour shift however she attended her general practitioner, Dr Goode, informing the doctor that she was in an overwrought state of mind. The doctor agreed that she was unfit for work and wrote out a certificate as to her unfitness. He said it was a lengthy consultation. She has continued to be unfit for work to the present. At her last consultation with Dr Goode he concluded that she was capable of returning to work and so issued her no certificate, nevertheless another doctor in the same general practice clinic (Dr Wood) did issue a certificate. Dr Goode said that particularly in more recent times the concerns which Ms Richold had were asserted more upon what she perceived as unjust treatment from those bodies to which she had taken her grievances rather than the initial problem with shift allocations. She believed that the Ombudsman's office did not take her complaint seriously. She suspected that the Human Rights and Equal Opportunity Commission of the State of Victoria was 'in league' with the Office of Corrections. Ms Richold herself described her frame of mind as at 27 February as 'sick in the head'.

1. According to her particulars of complaint filed on 22 December 2009, Ms Richold complains that the State of Victoria as her employer has breached Section 14A of the Equal Opportunity Act 1995. She said that the State's refusal to accommodate her responsibilities as a parent and carer was unreasonable and relied upon the following allegations:

1. The effect of the refusal on the number of shifts offered to and worked by the complainant, including loss of income; 2. The respondent's failure to adequately consult with staff prior to introducing the new policy;

1. The respondent's refusal, when presented with evidence of the policy's effects, and requested by the complainant to accommodate her parental responsibilities, to enter into discussions with the complainant regarding how her parental responsibilities could be accommodated;

1. The size and nature of the respondent is such that accommodating the complainant's parental responsibilities is unlikely to effect productivity or efficiency; 2. The respondent will not suffer any adverse consequences by accommodating the complainant's request; 3. The respondent has used a different system for allocating shifts in the past; 4. The respondent uses a different system for allocating casual work at other prisons, such as Barwon Prison; 5. The respondent is in fact not applying the new policy to casual workers who complain about the policy on the grounds of their family responsibilities.
2. Next, she alleges that as a result of her complaints to the State's officers she was victimised by having the number of her shifts reduced. She said the State was vicariously liable for the acts of its officers.
3. The particulars of complaint allege financial loss, humiliation, embarrassment, loss of self-esteem, anxiety and depression as a result of the State's contravention of the Equal Opportunity Act. She also placed reliance on the Charter of Human Rights and Responsibilities Act 2006. In her Prayer for Relief she sought an order modifying the work allocations policy, an apology, loss of wages from 27 March 2009 and also for the early part of December 2008, damages for embarrassment, humiliation, anxiety and depression and a declaration that the State has acted unlawfully together with costs.

1. Ms Richold's case relies primarily on Section 14A of the Equal Opportunity Act. That section states:

14A Employer must accommodate employee's responsibilities as parent or carer

(1) An employer must not, in relation to the work arrangements of an employee, unreasonably refuse to accommodate the responsibilities that the employee has as a parent or carer.

An employer may be able to accommodate an employee's responsibilities as a parent or carer by allowing the employee to work from home on a Wednesday morning or have a later start time on a Wednesday or, if the employee works on a part-time basis, by rescheduling a regular staff meeting so that the employee can attend.

(2) In determining whether an employer unreasonably refuses to accommodate the responsibilities that an employee has as a parent or carer, all relevant facts and circumstances must be considered, including -

(a) the employee's circumstances, including the nature of his or her responsibilities as a parent or carer; and

(c) the nature of the arrangements required to accommodate those responsibilities; and

(d) the financial circumstances of the employer; and

(e) the size and nature of the workplace and the employer's business; and

(f) the effect on the workplace and the employer's business of accommodating those responsibilities, including -

(ii) the number of persons who would benefit from or be disadvantaged by doing so;

(iii) the impact on efficiency and productivity and, if applicable, on customer service of doing so; and

(g) the consequences for the employer of making such accommodation; and

(h) the consequences for the employee of not making such accommodation.

1. This new section was introduced to the Equal Opportunity Act 1995 with affect from 1 September 2008. The amendment which introduced Section 14A also amended the definition of discrimination by adding to Section 7(1), the meaning of discrimination, a reference to contravention of Section 14A so that Section 7(1) now reads:

(1) Discrimination means direct or indirect discrimination on the basis of an attribute or a contravention of section 13A, 14A, 15A, 31A, 51 or 52.

1. Section 14 of the Act prohibits discrimination against employees, inter alia by subjecting them to any detriment. The Act defines 'employer' and 'employee' as follows:

(a) a person employed under a contract of service, whether or not under a federal agreement or award;

(b) a person employed under the Public Administration Act 2004 or appointed to a statutory office;

(c) a person engaged under a contract for services;

(d) a person who is engaged to perform any work the remuneration for which is based wholly or partly on commission -

but does not include an unpaid worker or volunteer;

(a) a person who employs another person under a contract of service, whether or not under a federal agreement or award;

(b) a person who engages another person under a contract for services;

(c) a person who engages another person to perform any work the remuneration for which is based wholly or partly on commission -

but does not include a person who employs another person on an unpaid or voluntary basis;

1. The expression 'work arrangements' which is used in Section 14A is defined in Section (4) as follows:

(a) in the case of a person offered employment, arrangements -

(i) that would apply to the person as an employee; oar

(b) in the case of an employee, arrangements applying to the employee or the workplace; or

(c) in the case of a contract worker (within the meaning of section 15), arrangements applying to the contract worker or the workplace of the principal (within the meaning of that section); or

(d) in the case of a person invited to become a partner, arrangements -

(i) that would apply to the person as a partner; or

(e) in the case of a partner, arrangements applying to the partner or the firm's workplace.

1. Section 96 of the Act prohibits victimisation. Section 97 defines victimisation in the following terms:

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

(b) has brought any other proceedings under this Act against any person;

(c) has given evidence or information, or produced a document, in connection with any proceedings under this Act;

(d) has attended a compulsory conference at the Tribunal;

(e) has otherwise done anything in accordance with this Act in relation to any person;

(f) has alleged that any person has contravened a provision of Part 3, 5 or 6, unless the allegation is false and was not made in good faith;

(g) has refused to do anything that would contravene a provision of Part 3, 5 or 6 -

or because the person believes that the other person or the associate has done or intends to do any of those things.

(2) It is sufficient for subsection (1)(f) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened.

(3) In determining whether a person victimises another person it is irrelevant -

(a) whether or not a factor in subsection (1) is the only or dominant reason for the treatment or threatened treatment as long as it is a substantial reason;

(b) whether the person acts alone or in association with any other person.

1. The word 'complaint' is defined in Section 4(1) to mean a complaint lodged under Section 105 of the Act. Section 105 provides for complaints to be lodged by aggrieved persons with the Human Rights and Equal Opportunity Commission.

1. Ms Richold's complaint of victimisation can be disposed of immediately. There is at the outset a lack of evidence in support that the allegation that she was denied shifts because of the complaints that she made to the various State officers referred to above. The evidence showed that a spreadsheet system was used in the allocation of shifts and that spreadsheet recorded by the use of the code '160' notices given by casual officers of unavailability for shifts on a particular day. The spreadsheet also recorded shifts offered to casual officers and the units in which those shifts were worked. A separate system derived from the payroll program provided historical evidence as to the shifts that were actually worked. There was a less than 100% correlation between the two sources. The spreadsheet was perhaps like a Court or Tribunal list. It recorded what was planned. It did not record instances where an officer who was offered and accepted an eight hour shift was later in the day asked to extend that shift to 12 hours or where as on 27 February 2009 Ms Richold was offered a 12 hour shift but proved unfit to work the shift. Both of these records were placed before me. There was nothing in either of them to suggest that insofar as Ms Richold was not offered shifts in November and early December that the non-offer was caused by anything other than the operation of the new policy with its 'deemed accruals'.
2. More pertinently the first complaint which Ms Richold made to the Commission under Section 105 of the Equal Opportunity Act was on 11 December. The complaints made to various officers at Corrections Victoria were complaints in the ordinary sense of the word but were not complaints within the meaning of the Equal Opportunity Act. Even if it were proven (which I believe it has not been) that Ms Richold was denied shifts because she complained for instance to Ms Agius that would not constitute victimisation because the complaint to Ms Agus was not a complaint for the purposes of the Equal Opportunity Act.
3. The definition of victimisation in Section 96 extends to 'allegations' of breaches of the Act (paragraph (f)). I am far from convinced that merely directing a complaint about employment arrangements to an equal opportunity officer without specifically referring to any alleged breach of the Act as such would amount to such an allegation. If I were wrong and the complaint to Ms Gorman fell within paragraphs (f) of the definition on Ms Richold's account all that happened thereafter was a continuation of the discriminatory conduct. If this were victimisation everyone who lodges a justified complaint of discrimination would also be regarded as victimised unless the discriminatory conduct ceases forthwith. Some additional detriment is required to constitute discrimination.

1. Mr Swannie, Counsel for Ms Richold noted that the inclusion of Section 14A in the equal opportunity legislation marked a new departure for Victorian anti-discrimination law. He observed that Section 14A did not for its operation require an employee to make any particular request to be accommodated by his/her employee nor did its operation turn upon the concept of 'detriment'.
2. He also stressed the need to read Section 14A in combination with the Charter of Human Rights and Responsibilities Act 2006. He observed that by virtue of Section 32(1) of this Act Section 14A should be read and 'interpreted in a way that is compatible with human rights'. He observed that Section 17(1) of the Charter stated:

Families are the fundamental group unit of society and are entitled to be protected by society and the State.

1. Mr Swannie referred to the decision of Bell J as President of the Tribunal in Lifestyle Communities Limited (No 3) (Anti-discrimination) [2009] VCAT 1869 where his Honour stated at [107] 'equality means substantive equality, not just formal equality. For differentiation as a measure for addressing disadvantage, it is not discrimination because it further equality.' According to Mr Swannie this meant that the State could not exonerate itself from an allegation of discrimination merely by showing that the impugned policy was applied across the board equally to all casual officers.
2. At the outset of the hearing Mr Ginnane on behalf of the respondent said that his client's first line of defence would be to contend that Section 14A had no application at all to a casual officer like Ms Richold. He seemed to step back from that contention somewhat in final submissions. In his final submissions he contended that as a casual officer Ms Richold had neither the right nor obligation to accept employment on any particular day, a concomitant was that not being obliged to provide her services on any day she was not entitled to long service leave or holiday pay, on the other hand she was paid at a higher rate, a so called casual loading. Analytically he said a casual worker is not employed under a single contract but under a series of separate employment contracts each time casual work is offered and accepted. He referred to Melbourne Cricket Club v Clohesy [2005] VSC 29; (2005) 14 VR 206 per Dodds-Stretton J; Williams v Macmahon Mining Services [2009] FMCA 511 and Doyle v Sydney Sted Company Limited [1936] HCA 66; (1936) 56 CLR 545. Mr Swannie submitted that the application of Section 14A depended upon whether the State was an 'employer' within the meaning of the Act and Ms Richold an employee.
3. Mr Ginnane conceded that when Ms Richold rendered services to his client she did so under a contract of service. Ms Richold offered to produce a written employment contract. In those circumstances it would seem that Ms Richold falls within the definition of employee quoted above and with respect to her employment the State falls within the definition of employer. There is no ground for contending that Section 14A does not govern the employment relationship between the parties though the nature of Ms Richold's employment is necessarily significant for the operation of the Section. It is likely to operate in a drastically different manner in her case than it would in relation to a permanent and full-time officer.
4. It is difficult to accept Mr Swannie's contention that Section 14A's operation here can or should be analysed without regard for the concept of 'detriment'. First, insofar as the Equal Opportunity Act has now broadened the concept of discrimination and characterises action in contravention of Section 14A as discrimination it is essential for this contravention to be associated with detriment having regard to the general definition of what action can amount to discrimination. In any event, the gravamen of Ms Richold's complaint is that she has suffered a detriment as a result of having fewer shifts available to her for acceptance. Her complaint is that the new roster system either actually inflicts a detriment upon her or threatens a detriment by the possibility of its re-introduction as regards herself.
5. I turn therefore to the detailed provisions of the Section.
6. It was not contended that the roster and shift arrangements described above were other than 'work arrangements' within the meaning of the section. Sub-section (2) creates a general prohibition on an employer unreasonably refusing to accommodate the responsibilities of an employee as a parent or carer in relation to work arrangements. Sub-section (2) sets out a series of particular considerations to be considered in addition to 'all relevant facts and circumstances'. The matters which can be considered therefore or which should be considered are restricted only by the concept of relevance. In one way or another each of the specific matters referred to in Paragraph (2) calls for comment. Paragraph (a) which invites attention to the employee's circumstances and raises for consideration the parental responsibilities of Ms Richold and her manner of sharing them with her husband. Paragraph (b) requires consideration of Ms Richold's status as a causal officer. Paragraph (c) calls for consideration of the old roster arrangements and a consideration of any adjusted roster arrangements apart from a simple reinstatement of the old ones which might be considered. Paragraphs (d), (e) and (f) draw attention to the status of the Crown in right of the State of Victoria as probably the largest employer in the State and one with substantial monetary resources. Paragraphs (g) and (h) invite consideration of the issues of equity amongst casual officers which were the rationale stated by the employer for the introduction of the impugned shift roster arrangements.
7. In the present case whilst it is true as Mr Swannie observes that a 'request' for accommodation on the part of Ms Richold is not according to the words of the statute a necessary requirement to establish a contravention by the employer, it is necessarily implicit. Whilst an employer might be expected to be generally aware of an employee's domestic arrangements, practical limits on knowledge and the entitlement of employees to their own privacy mean that an employer cannot have full knowledge of the employee's domestic arrangements. Even if the employer did, rights of privacy and autonomy for the employee and the employee's family would render it inappropriate for an employer to reach a judgment as to what was an appropriate accommodation for a particular employee absent any consideration of the employee's views.
8. In the present case it is clear I think that Ms Richold found the old arrangements more accommodating for her responsibilities as a parent and made this plain to her employer. The State has refused to reinstate the old arrangement.
9. In his submissions Mr Swannie at times appeared to contend that there was no express or implied obligation on an employee in the context of Section 14A to make known to the employer what would be an appropriate accommodation. For reasons given above I cannot accept that.
10. I accept in the present case that the revised shift arrangements were not accommodating for Ms Richold. I accept further that the State of Victoria as a large employer with substantial resources might be expected to be able to be more accommodating than a smaller employer with fewer resources. To put it another way, inflexibility on the part of a small employer which might be judged not unreasonable could be regarded as unreasonable in the case of a large employer such as the State.
11. Does the State's stand in the present case constitute an unreasonable refusal to accommodate? In my view it does not. First, the very nature of casual employment which is what Ms Richold is offered by the State grants the fullest possible flexibility. Whilst on at least one occasion there was an unwelcome offer of a shift early on a morning on which Ms Richold had already indicated she was unavailable, there is no suggestion that Ms Richold cannot remain on the list of casual officers unless she accepts employment on a particular day. The State is necessarily concerned to maintain an equitable allocation of casual work as between casual officers. In the circumstances I am not persuaded that the arrangements now in force are unreasonable or entail unreasonable refusal to accommodate. Speaking in support of the Second Reading of the Bill which inserted Section 14A, Mr Cameron, the Minister for Police and Emergency Services said on 11 October 2007 at page 3468 of the relevant volume of Hansard for the Victorian Legislative Assembly that the considerations in Section 14A(2) were:

Commonsense considerations that aimed to encompass the needs of both parties.

1. Section 14A does not require an employer entirely to subjugate its own interests to the interests of the employee as parent or carer. Rather it requires a reasonable accommodation to be reached between the two. This necessarily entails acceptance of the view that matters may be arranged in a manner which is less than ideal from the employer's standpoint and also less than ideal from the employee's standpoint.
2. Since the criterion is one of reasonableness or unreasonableness it follows that there can be more than one accommodation which could be regarded as reasonable or not unreasonable. Viewed in light of Section 14A I believe that both the old roster arrangements and the new could be regarded as not unreasonable. I believe also that it was not unreasonable for the State to make the modification to arrangements which it did in October 2008 to meet the concerns of equity which had been raised by a number of casual officers with it.
3. Section 14A was framed by Parliament following the enactment of the Charter of Human Rights and Responsibilities and in the knowledge of its terms. The Minister included at the beginning of his Second Reading speech an explanation as to why in his view the provision was compatible with the Charter. In considering the operation of the Charter with respect to any piece of legislation it is necessary at the outset in obedience to Section 32 of the Charter to construe the provision 'in a way that is compatible with human rights.' Section 14A by using the criterion of what is reasonable or not unreasonable seeks to balance the interests of employer with the interests of employees as parents and carer. As previously explained it does not require the interests of the one to be unconditionally subjugated to the interests of the other. For Parliament to strike that balance is not in my view to deprive families of their entitlement to protection under Section 17(1) of the Charter.
4. Mr Swannie did not specifically refer to Section 38(1) of the Charter which provides as follows:

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

1. Without turning in detail to the definition in Section 4 of the Charter of the expression 'public authority' the action complained of by Ms Richold would appear to be action by a public authority whether the Department of Justice or 'Corrections Victoria' is to be regarded as a public authority or whether the officers who made the decisions and received her complaints are to be regarded as a public authority. In the present proceeding the Tribunal is exercising jurisdiction under Section 134 of the Equal Opportunity Act which is to adjudicate upon complaints made to the Commission and referred to the Tribunal. It may be open to doubt whether in a proceeding such as this the Tribunal is entitled to consider an allegation that a respondent is a public authority in breach of Section 38 of the Charter. Assuming without deciding that I am entitled to consider that issue in the present proceeding, it is difficult to see that the State's rostering arrangements as challenged here constitute a denial of the Richold family's entitlement to protection by the State under Section 17(1) of the Charter. Standard authorities such as C and S Evans, Australian Bills of Rights (2008), and Pound and Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (2008) give no indication that the Section 17(1) right is so extensive. Section 32(2) of the Charter however provides that it is proper to consider not really the usual domestic case law but also 'international law and the judgments of ... foreign and international courts and Tribunals relevant to a human right'. In construing the extent of the right in question, experience tells us that referral to material such as this may lead to the view that a particular right has a far more extensive operation than a simple consideration of the words of the Charter would have one believe. In a related but slightly different context a reader of the United States Bill of Rights without knowledge of the jurisprudence on the subject from the United States Supreme Court would be unlikely to conceive that the rights protected include rights to privacy and rights to abortion given that neither is referred to in the Bill of Rights. They are said to arise from implications deriving from express rights such as the right of immunity from unreasonable searches and seizures and debility of troops. That the Charter casts its interpretive net so wide serves to increase the difficulties of a court or Tribunal which is referred to the Charter en passant with no elaboration or referral to further authority.
2. In the end as I have explained, I conclude that after having construed Section 14A of the Equal Opportunity Act as I am required to do by Section 38 the Charter is not engaged and nothing in the evidence discloses any action by any public authority that is incompatible with a human right protected by a Charter.
3. Nor is it unreasonable for the State to maintain a universal policy across the entire pool of casual officers. There was no suggestion from Mr Swannie as to exactly how any arrangement which might provide for a differential treatment of different officers might operate. Moreover, as Ms Richold saw things, this was exactly the regime which was operating in relation to her from late December 2008 until February 2009 when she became unfit for duty. Upon my reading of the spreadsheet material I cannot see that this was correct. Be that as it may, according to Ms Richold she was perceived by other officers as receiving preferential treatment and they resented it. Clearly this type of resentment can be corrosive in the workplace. An employer has a legitimate interest in maintaining a consistent and transparent policy across a pool of casual workers as to the allocation of shifts.
4. It follows that I reject the contention on the part of Ms Richold that the State has in its dealings with her, contravened Section 14A of the Equal Opportunity Act 1995.

1. I have concluded that the applicant's complaints of victimisation and discrimination by contravention of Section 14A of the Equal Opportunity Act 1995 have not been made out. Accordingly this proceeding should be dismissed.