Commonwealth Government and the state and territory anti-discrimination laws help protect people from discrimination and harassment. This includes prohibiting discrimination in employment on the basis of pregnancy.
The recent Victorian Civil and Administrative Tribunal decision of Bevilacqua v Telco Business Solutions (Watergardens) PL (Human Rights) held that the employer had directly discriminated against the worker on the basis of her pregnancy and found that morning sickness was a disability pursuant to the Equal Opportunity Act 2010 (Vic) (the Act).
The worker was employed as a full time Sales Consultant at a Telstra (TBS) store in Melbourne. The worker experienced severe morning sickness ("hyperemesis gravidarum" (which means "excessive vomiting during pregnancy")).
The worker alleged that the Store Manager and Managing Director directly and indirectly discriminated against her on the basis of her pregnancy, which included her severe morning sickness and failed to make reasonable adjustments for her as an employee with a disability.
The worker resigned when her request to reduce her hours from 38 hours/week to 28 hours/week was refused by the Managing Director.
The worker alleged that the employer had directly discriminated against her in relation to her pregnancy on five occasions, being, comments by her Managing Director and Store Manager regarding her pregnancy, sick leave, lifting boxes and sitting and taking toilet breaks. The bulk of the workers’ direct discrimination allegations were rejected. The two allegations that were accepted are described below.
The worker successfully argued that the employer had indirectly discriminated against her on the basis that employees were: required to stand at all times during their shifts and only take breaks when there were no customers, pick up and/or move heavy boxes, take short and infrequent toilet breaks, not take sick leave and work a full time week. Senior Member Proctor did not accept these were requirements, conditions or practices of TBS employees.
Senior Member Proctor found that the employer had directly discriminated against the worker: the employer had subjected her to unfavourable treatment because she was taking leave which was a result of pregnancy/disability, when:
- the Store Manager texted the worker “I’m f*#king sick of this” and “You better fucking come in Steph” – the evidence being that the Store Manager sent these texts when the Store Manager knew the worker was pregnant and after she advised she could not work.
- the Store Manager subjected the worker to unfavourable treatment related to her taking frequent lengthy toilet breaks – the accepted evidence being that the Store Manager was displeased with the length of time she had been gone and indicated this to her when the worker returned from the toilet.
Senior Member Proctor found that this caused the worker hurt, humiliation and anxiety.
Senior Member Proctor also found that the worker’s morning sickness was a disability. However, Senior Member Proctor stated, “In discussing direct discrimination the ‘addition’ of the attribute of disability adds nothing to the discussion, as the morning sickness falls within the pregnancy attribute.”
Senior Member Proctor said that, “In ordinary life a pregnant woman suffering morning sickness is not considered to be a person with a disability.” However, he was satisfied that the worker had Hypermesis Gravidarum in September 2013. He accepted evidence that the worker suffered “morning sickness which was pregnancy related, migraine, back pain, pain in ankles, feet and lower back” and the symptoms “involve functions of the body failing to function properly and so constitute a “disability”” as defined by the Act.
Senior Member Proctor considered whether the employer had failed to make reasonable adjustments which were required for the worker, an employee with a disability. Senior Member Proctor found that the employer had not failed to make reasonable adjustments.
Senior Member Proctor referred to the evidence of the worker’s treating doctor that although the medical certificate certified that the worker “needs to decrease her work hours to 28 hours a week due to her medication condition”, the doctor regarded the reduction as reasonable and described it as “needed in the certificate, in fact he did not view it as “required” at the time in question.
Senior Member Proctor rejected the worker’s claim that her employer’s actions amounted to constructive dismissal.
The ruling that severe morning sickness is a disability obliges employers to make reasonable adjustments on a case-by-case basis. While, in this case, Senior Member Proctor did not consider that the employer had failed to make any adjustment which was required, it is important to note the short amount of time between the employer becoming aware that the worker was pregnant and the resignation of the worker. As Senior Member Proctor noted, “In my view, events over the short period in question had not unfolded to the point where a further reasonable adjustment could have been known following proper consultation by parties armed with appropriate medical information and advice and appropriate knowledge of the genuine and reasonable requirements of the particular job.”
Senior Member Proctor ordered the employer to pay the employee $10,000 in general damages. [Bevilacqua v Telco Business Solutions (Watergardens) PL No.2 (Human Rights)  VCAT 693 (28 May 2015)]