Australia: Pregnancy and family responsibility discrimination

Last Updated: 2 May 2012
Article by Amanda Gilkes

Cincotta v Sunnyhaven Limited [2012] FMCA 110 (8 March 2012)

The Federal Magistrates Court found that an employer discriminated against an employee when she became pregnant, took maternity leave and on her return was restricted in hours she could work due to child care restraints.

The applicant was an employee of Sunnyhaven, an institution that provided residential care and recreational activities to people with disabilities. Since 2001 she had been employed as a support worker before being offered a position as a program supervisor in August 2007. The position was for a fixed term of 12 months, but the applicant was led to believe that it would be possible to extend the position on a permanent basis.

In May 2008 the applicant advised Mr Mendis, CEO that she was pregnant and intended to take maternity leave commencing January 2009. She planned to return to work part-time and gradually increase to full-time hours once child-care arrangements had been secured. In August 2008 the applicant was advised that her position as program supervisor was not going to be renewed but she could stay on in an acting role until going on maternity leave. The applicant was then advised by Mr Mendis that in order to receive her desired shifts upon return she would need to resign her permanent position and take on a casual role, whereby an informal agreement would be reached. In reliance on the agreement the applicant resigned her permanent position and took on the casual role.

Following her return from maternity leave, the applicant alleged she was not given regular shifts and that some shifts were cancelled or she was called in on short notice. The irregularity of the shifts made arranging childcare difficult. Further, despite repeated requests for more work, the applicant was not offered additional shifts. The applicant eventually resigned after not receiving any shifts from May 2010 to August 2010.

The applicant originally lodged a complaint with the Australian Human Rights Commission. Her complaint was dismissed under s46PH(2) of the Australian Human Rights Commission Act (AHRCA) as the delegate felt there were no reasonable prospects of the matter being settled by conciliation.

In accordance with s46PO of the AHRCA an application was made to the Federal Magistrates Court alleging unlawful discrimination on the grounds of sex, including pregnancy and family responsibilities under the Sex Discrimination Act 1984 (Cth).

During the hearing a number of facts were in dispute between the parties. The applicant alleged Mr Mendis, the key witness for the respondent, lied under oath and that as such his evidence was unreliable. Whilst Federal Magistrate Nicholls found that Mr Mendis presented as overconfident, even arrogant, and conceded there were some inconsistencies, he could not find on the totality of the evidence that Mr Mendis had actually lied. The Magistrate did find that a large part of Mr Mendis' evidence was not to be preferred.

The applicant made five specific claims of alleged discrimination:

  • The respondent had failed to pay the applicant a bonus in the financial year 2007 / 2008
  • The applicant's position as program supervisor had not been renewed
  • The respondent had refused to permanently appoint the applicant to the position of program supervisor
  • The respondent denied the applicant's request to return to work in September 2009 on a particular basis, she was advised the only option was causal employment
  • The respondent's behaviour upon the applicant's return to work following maternity leave was such as to convey constructive dismissal.

In relation to the applicant's first claim, Nicholls FM found that it failed on the 'comparator test'. The Magistrate found that other employees holding the same position as the applicant also failed to receive a bonus in the financial year 2007 / 2008. The Magistrate found that the reason the applicant did not receive a bonus was not due to her pregnancy or maternity leave, but rather that she did not meet the relevant criteria, namely having remained in the position for two or more years.

Nicholls FM addressed the second and third claims concurrently. In regards to the claims regarding renewal and permanent appointment to the position of program supervisor, the Magistrate found in favour of the applicant. Mr Mendis alleged the applicant was not asked to continue in her role as program supervisor due to a false claim she made in her application regarding her qualification, which she later confessed to. Whilst the Magistrate was satisfied that the applicant had lied regarding her qualifications, he noted that when the applicant told Mr Mendis, no immediate action was taken and the applicant was allowed to continue in an acting role until her maternity leave.

Further, Nicholls FM noted that despite a complaint being made against the applicant in May and June of 2008, no investigation or action was taken. The magistrate concluded that instead of dealing with the relevant issues and events with the applicant squarely, Mr Mendis embarked on a course of 'easing' the applicant out of the respondents employment. Mr Mendis' approach of avoiding overt and direct conflict was consistent with the duplicitous conduct and attitude alleged against him. Accordingly, the Magistrate found that the applicant's claims that the difficulty posed by her pregnancy, maternity leave and the possibility that she may not return to work led Mr Mendis to discriminate against her.

Nicholls FM found that Mr Mendis' conduct had adverse consequences for the applicant's return to work as a casual employee. Mr Mendis made it clear that the only way the applicant's request for reduced hours could be accommodated was if she resigned as a permanent employee and became a casual.

The court found that the reason the applicant had been led to accept casual work was because of her family responsibilities and Mr Mendis refusal to otherwise accommodate her needs.

The final claim addressed by the Magistrate was that upon the applicant's return to work, the respondent's behaviour was such to amount to constructive dismissal. The respondent alleged that the applicant's employment ceased due to her inability or unwillingness to work with other employees and her refusal to follow directions. This allegation was made in the context of a further complaint made against the applicant when one of her shifts was cancelled and she allegedly bullied her supervisor with texts messages. However, the court accepted that Mr Mendis had once again failed to effectively manage the conflict and complaint.

Federal Magistrate Nicholls found that:

'at some point Mr Mendis began to perceive Ms Cincotta to be a 'difficulty', or troublesome. Her pregnancy, maternity leave and child care responsibilities provided the catalyst, or perhaps more correctly the vehicle, through which Mr Mendis sought to limit her participation in the respondent's workforce and, ultimately, to effect her removal from it.'

The court concluded that Mr Mendis', attitude towards the applicant had changed some time in 2008, following the complaints made against her and the applicant's confession regarding her false claim of qualification. He had come to regard her as 'difficult', and the court accepted that the difficulty included the applicant's pregnancy, maternity leave and the perceived possibility that she may not return to work.

The court found in the applicant's favour and accordingly awarded:

  • Damages for lost wages and superannuation in the amount of $34,340.65
  • General damages in the sum of $10,361.

In addition, the Court ordered the management board to provide a written apology to the applicant within 21 days of judgment.

Comment

This case demonstrates the importance of having appropriate polices and procedures in place to handle complaints and misdemeanours within a business. Despite the applicant having made false claims regarding her qualifications during the course of her employment and the number of complaints made against her for bullying and harassment, she was ultimately successful because management failed to adopt appropriate procedures to manage these issues. Rather, they used the applicant's pregnancy, maternity leave and family responsibilities as an excuse to 'ease' her out of her employment. A clear and open approach needs to be adopted when managing an employee and varying their employment so that no actions taken by the company can be misconstrued.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions