Tribunal finds morning sickness can be a disability

In this edition:

  • tribunal finds morning sickness can be a disability;
  • David v Goliath: employee loses against IBM in court; and
  • ‘conditions akin to slavery’ – employee awarded $186,039 from former employer.

Tribunal finds morning sickness can be a disability

The Victorian Civil and Administrative Tribunal (the VCAT) has recently decided that in some cases, extreme morning sickness from pregnancy can be considered a disability, and must be accommodated by employers. This case should alert employers to their obligations under anti-discrimination legislation.

The facts
Ms B worked as a full time sales consultant for a phone company in a retail store which was owned by the company TBS. Prior to discovering her pregnancy, she had a history of taking sick leave from work which, despite many medical certificates being produced, incited doubt amongst her colleagues about their legitimacy (an apparent Facebook post from the beach on a day she took sick leave was referred to in proceedings). In early September 2013 Ms B discovered she was pregnant which explained her recent ill health as being morning sickness. Throughout September, she was absent often from work. Her symptoms included frequent vomiting, dizziness and feeling faint. She was diagnosed with hyperemesis gravidarum, the most severe form of morning sickness (Kate Middleton had the same condition).

Ms B previously had a miscarriage and, on the advice of her GP, asked TBS to reduce her hours of work from 38 to 28 hours per week. Ms B submitted a medical certificate accompanying this request. On 4 October 2013 TBS refused her request and three days later Ms B resigned and left the store two weeks later.

In his evidence, the TBS Managing Director stated that he told Ms B he could not agree to her request for a reduction in hours because ‘she was employed on a full time basis and that TBS was a small business not able to reduce her hours’. He also told her that he would not be able to employ someone to cover the 10 hours per week she would no longer be working. Ms B said she felt she had no choice but to resign as a result of TBS’s refusal of her request.

Ms B later experienced money problems as her resignation meant that she could not commence Centrelink benefits immediately. She also could not find work before the birth of her son in May 2014. After the birth Ms B scored highly on a post-natal depression test.

VCAT proceedings

Ms B applied to VCAT seeking compensation under the Equal Opportunity Act 2010 (Vic) (the EO Act) for loss of wages and hurt and humiliation. This was sought on the basis that TBS had directly and indirectly discriminated against her because of her pregnancy, which included severe morning sickness, and failed to make reasonable adjustments for her as an employee with a disability (morning sickness and pregnancy).

In considering whether TBS directly discriminated against Ms B the question considered was whether TBS treated her unfairly because of her pregnancy. To answer this question VCAT referred to the following actions by the Managing Director:

  • texts from him to Ms B stating he was ‘$%#king sick of this’ and ‘you better $%#king come in’ – sent in response to Ms B telling him she could not work and he knew she was pregnant; and
  • comments he had made to her expressing his frustration and displeasure about her having to sit while on the shop floor (staff normally stood) and her frequent toilet breaks.

VCAT found that Ms B had been directly discriminated against as those actions had caused Ms B detriment, being hurt, humiliation and anxiety and constituted unfavourable treatment because Ms B was taking sick leave and additional toilet breaks as a result of her pregnancy.

However, VCAT found that allegations including that staff must stand at all times during shifts and only take breaks when customers were absent, did not constitute indirect discrimination.

Indirect discrimination occurs when a policy or procedure which appears to apply equally to all individuals in the relevant group but causes a disproportionate disadvantage or detriment to a person because of their disability.

VCAT also found that the employer did not have to make ‘reasonable adjustments’ for Ms B’s disability. An employer is required to make ‘reasonable adjustments’ to enable the person with a disability to comply with the inherent requirements of the job. If the employer fails to do so, that in itself constitutes unlawful discrimination against a person with a disability.

According to the VCAT Senior Member Ian Proctor, Ms B’s pregnancy was a ‘disability’ because the morning sickness caused the ‘malfunction of her body’, meeting one of the criteria of the definition of ‘disability’ under the EO Act. But even though she had that disability, it did not require the adjustment of her working hours in order to perform ‘the genuine and reasonable requirements of the employment’. This finding was based on the wording in Ms B’s medical certificate, where her GP had said that a reduction in hours was ‘needed’ but not ‘required’ – a strict interpretation of the wording in the EO Act.

Outcomes

This decision is noteworthy for employers as it establishes that, at least in Victoria, while pregnancy itself is not a disability (noting that it can be a separate ground of unlawful discrimination) extreme variations of conditions associated with pregnancy, such as extreme morning sickness can be considered by the courts to constitute a disability. And under the various pieces of State and federal legislation, once the disability has been established, an employer must consider what steps can reasonably be taken to enable the person with a disability to perform the inherent requirements of the job. While other States may not follow the Victorian precedent of deeming extreme morning sickness a disability, employers are reminded that disability discrimination goes beyond direct and indirect discrimination, but also failure to make ‘reasonable adjustments’.

David v Goliath: employee takes IBM to court and loses

In another discrimination case relating to working women, a female employee’s claim of sex discrimination against IBM Australia Limited (IBM) has been dismissed by the Federal Circuit Court (the Court).

The facts

Ms Y began her employment at IBM in 2003. In July 2008 she commenced maternity leave.

Prior to taking leave, Ms Y had been promoted in 2007 from band 6 to band 7 within her project team based in Canberra.

Ms Y returned to work from maternity leave on 23 July 2009. She had previously received approval from her manager, Mr C, to work part-time at 20 hours a week to accommodate the flexibility of caring for her child.

Due to a change in the direction of the project she was working on, Ms H had to skill up. In 2010 Ms Y’s work performance began to suffer.

Ms Y also raised with her local manager that she was working odd hours, which he explained was because she was not to work more than the 20 hours agreed upon.

In 2010 Ms Y’s marriage broke-down and between 2010 and 2011 her work suffered as did her personal life. Ms Y went on different periods of sick leave and was eventually dismissed on 15 March 2014.

Despite IBM having written procedures in place to help employees lodge complaints, Ms Y did not do so as she was ‘overcome by fear’.

No sex discrimination here

In short, Ms Y alleged various acts of discrimination by IBM against her, in contravention of the Sex Discrimination Act 1984 (Cth). She claimed that she was discriminated against in respect of:

  • pay or disparity in pay;
  • the allocation of administrative duties;
  • cancellation of her annual leave; and
  • being ostracised by a friend and co-worker.

All her allegations were dismissed.

Judge Street found that Ms Y had fabricated evidence – undermining her credibility, blamed IBM for her marriage break-up, and that this blame was one of the reasons for bringing the proceedings.

Judge Street was also perplexed by the applicant’s failure to ‘speak up’ in accordance with IBM grievance procedures. He noted that Ms Y is clearly ‘a highly intelligent, articulate and capable individual who is well able to formulate and make written complaints if she chose to do so’.

Costs ordered against Ms Y

Where the circumstances warrant, courts and tribunals in discrimination matters are usually keen to see matters settled reasonably, rather than dragged out in costly litigation. In this case earlier in the proceedings, IBM sent Ms Y a formal letter offering to resolve the proceedings by discontinuing the case, with each party to pay their own costs.

This type of letter – referred to as a ‘Calderbank Letter’ – has the consequence that if unreasonably rejected, Ms Y must pay a higher portion of IBM’s costs. Judge Street found that this offer of compromise was unreasonably rejected, and Ms Y was ordered to pay IBM’s costs of $150,000, in addition to her own costs of $250,000.

This case is an example of how litigating against employers is not always the best method of seeking a resolution to personal and professional misfortune.

‘Conditions akin to slavery’ – employee awarded $186,039 from former employer

In a remarkable case that followed a criminal trial on trafficking charges, an exploited employee has been awarded wages after he was kept in what the Judge called ‘conditions akin to slavery’.

With the assistance of Anti-Slavery Australia, a 457 Visa immigrant, Mr R, brought a case against an Indian restaurant (the Restaurant) and one of its directors (Mr T). In a judgment scathing of not only the perpetrators involved in this case, but also the integrity of the 457 Visa program, Judge Driver determined a claim for unpaid wages against the Restaurant and Mr T.

Before this case, Mr T pleaded guilty to criminal charges of trafficking a person in circumstances where he was reckless as to exploitation. The circumstances of this case provides a history of this matter.

Mr R worked as a cook in India. His English was very basic. He was approached by Mr T, who made arrangements for him to come to Australia on a 457 Visa. Immigration documents stated that he was to be paid a total package of $45,616. Upon arrival in Australia, Mr T took Mr R’s passport and secured it in his home.

Mr R commenced work at the Restaurant. He worked for 12 hours a day, seven days a week over 16 months. He lived in the Restaurant’s storeroom, although Mr T falsely claimed that he lived with him. From the Restaurant, he called Mr T for instructions on food preparation for the day. In this time, Mr R was paid a pittance which was sent to his wife overseas. He received no leave. He was told that be could not leave Australia unless he repaid Mr T $7,000 for the cost of bringing Mr R to Australia.

Mr T supported this arrangement with an array of sham documents which attempted to legitimise Mr R’s stay on his visa, and his employment.

Subsequently, he went to the police and he and his family were granted a witness protection visa allowing him permanent residence in Australia.

Mr R brought a case against the Restaurant and Mr T under the Workplace Relations Act 1996 (Cth) and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) for underpayment of salary, underpayment of leave and breach of contract. It is unsurprising that the Court determined that Mr R had made good his claim. The task for the Court was to calculate the amount to be paid to Mr R. This was not easy, given that the Court found that Mr T ‘has been prepared to change evidence under oath, as suits his particular case’.

In the end, the Court determined that Mr R was owed a total of $186,039, being underpaid wages plus interest.