Badke v Orchid Key No. 2 Pty Ltd [2004] QIRC 4 (2004) 175 QGIG 236

236 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 January, 2004 ######################################################################################################################### ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Wendy Badke AND Orchid Key No. 2 Pty Ltd (No. B1172 of 2003) DEPUTY PRESIDENT SWAN 13 January 2004 DECISION -- 1 of 2 -- 23 January 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 237 Mrs Badke commenced employment with Orchid Key No. 2 Pty Ltd in August 2000 as a Book-Keeper and her services were terminated on 7 July 2003. Mrs Badke claimed that the employer acted in a discriminatory manner in dismissing her because she was unable to speak Japanese. The employer states that the dismissal related to a need to restructure its business and it became important in that process to engage the services of one who could speak Japanese and English fluently. Mrs Badke, prior to her dismissal, had worked from 12.30 p.m. until 4.30 p.m. on three days of the week as a casual employee at an hourly rate of $26.50. Mrs Badke performed general book-keeping work. In the course of her employment, she was often called upon by Mr Tadashi Mae, the Manager, to assist him in being proficient in the English language sufficient for him to obtain Australian residency status, amongst other things. On 7 July 2003, Mr Mae spoke to the applicant in the presence of Ms Midori Dellow, a Japanese translator, explaining that he wanted to expand his business and that he required an employee who was fluent in English and Japanese. The employer had in fact found someone who could fulfil these requirements. Mrs Badke was asked to stay with the employer for another month in order to train the new employee. Mrs Badke chose not to do this. She believed that she had been unfairly dismissed and that she was also discriminated against by the employer. Mr Tadashi Mae, the Managing Director of Orchid Key No. 2 Pty Ltd, which owns and operates Club Kifujin, had asked the applicant to work more hours during 2002 and 2003, but this request had been declined. Mr Mae explained that it was expensive for the business to have to hire a translator at least once per week to communicate its instructions to the applicant. Mr Mae admitted that he had struggled to communicate with Mrs Badke effectively because of his lack of proficiency in the English language. When calculating the extra costs involved in hiring a translator and maintaining a casual employee, it was roughly the equivalent of employing one person to work full-time. When all options were considered (i.e. keeping the current arrangement or opting to employ someone proficient in both English and Japanese to work full time during the week), the best option for the employer was the latter. Had Mrs Badke stayed and discussed the issue with him on 7 July 2003, Mr Mae could have discussed with her the prospect of working for another month or, alternatively, paying Mrs Badke one month’s payment in lieu of notice. Mr Mae rejected any suggestion that the employer had been guilty of discrimination in stating it required an employee who was fluent in both Japanese and English to perform the work previously done by Mrs Badke. In responding to the claim that the dismissal was harsh, unjust or unreasonable, the employer stated that it was within the employer’s prerogative to rearrange its organisational structure to suit its needs. In its view, there was a genuine redundancy based upon the operational requirements of the employer’s business. Mr Mae stated that Mrs Badke had been aware of the employer’s financial situation for some time. In terms of the discrimination claim, the employer stated that the dismissal did not occur for an “invalid reason” (see s. 73(2)(m) of the Industrial Relations Act 1999 (the Act)). Section 15(1)(c) of the Anti Discrimination Act 1991 states that a person must not discriminate in dismissing a worker. The requirement of the employer was that it needed an employee with both clerical and Japanese reading and writing skills. The applicant was not dismissed because she was not a Japanese person but because she did not have Japanese reading and writing skills. There was no discrimination on the basis of the attribute of race (see s. 7(g) of the Anti-Discrimination Act 1991.) A person may impose genuine occupational requirements for a position (see s. 25 of the Anti-Discrimination Act 1991). It is an objective test whether a specific requirement of an employer is a genuine occupational requirement (see Flannery v O’Sullivan (No. 2) (1993) EOC 92-501). In this instance, the employer required an employee with Japanese language skills and this constituted a genuine occupational requirement. There was a genuine redundancy. The work which had been performed by Mrs Badke was unable to continue in the manner in which it had previously occurred. With the employment of a person who was fluent in both Japanese and English, the employer was able to rearrange its business in a manner best suited to its needs. I am unable to find in favour of the applicant. I dismiss the application. Order accordingly. D. A. SWAN, Deputy President. Appearances: Hearing Details 2003 17 December Ms W. A. Badke, the Applicant. Mr I. Kennedy and with him Mr F. Dwyer of Mclaughlins Solicitors on behalf of Orchid Key No. 2 Pty Ltd. -- 2 of 2 --