Disability support worker faces pregnancy discrimination

8 May 2012

In a recent decision, Cincotta v Sunnyhaven Limited [2012] FMCA110, the Federal Magistrates' Court determined that a disability support worker had been discriminated against on the basis of her childcare responsibilities, pregnancy and maternity leave.  Joanne Cincotta was awarded $34,340.65 in damages for economic loss including interest and $10,361 for general damages (including interest). She was also provided with an apology from the Board of the Sunnyhaven Ltd for the CEO's conduct towards her.

Ms Cincotta, who was not represented by  Maurice Blackburn, alleged, and it was accepted, that her contract as a program supervisor (working with people with disability) was not renewed and she was not made permanent partly because of her pregnancy.

Sunnyhaven Ltd alleged that the reason why Ms Cincotta was not made permanent was because she had lied about her qualifications, claiming that she had a Certificate IV in Disability work when she did not have this qualification.  Ms Cincotta accepted that she had lied on two occasions about her qualifications but submitted that the reason for the failure to give her permanent employment was her childcare responsibilities and pregnancy. Importantly, the Court stated that the reason given by Sunnyhaven Ltd for not making Ms Cincotta permanent could not have been true because once it discovered her lie it allowed her to continue in the position she held.

It was held that Sunnyhaven Ltd's CEO formed the view while Ms Cincotta was on maternity leave that she was a difficult employee. He formed the view she was difficult because she had been pregnant, was taking maternity leave, and in his view, may not return to work.

After her maternity leave Sunnyhaven Ltd forced Ms Cincotta to accept casual employment.  This was done purportedly to accommodate her carer responsibilities but was found by the Court to be motivated by her pregnancy and maternity leave.  It diminished the security of her employment. She was ultimately constructively dismissed because the Respondent failed to offer her shifts.

A significant portion of the judgment centred around the treatment of Ms Cincotta by the Sunnyhaven Ltd CEO.  

Ms Cincotta's general damages were reduced to $9,000 plus 10.25% interest because she contributed, in part, to the non-renewal of her contract by making a 'false claim' about qualifications that she knew she did not have.  Nonetheless she achieved significant compensation for the discrimination.

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