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.


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.

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