Pregnancy

Under the Sex Discrimination Act 1984 (Cth) the prohibition against discrimination on the basis of pregnancy includes potential pregnancy.[1]

Potential pregnancy refers to the fact that a woman:

• is or may be capable of bearing children
• has expressed a desire to become pregnant, or
• is likely, or is perceived as being likely to become pregnant.[2]

Discriminatory action based on pregnancy found

Ucchino v Acorp Pty Limited

Ucchino v Acorp Pty Limited [2012] FMCA 9 (27 January 2012), [(2012) 218 IR 194].

It was held that the applicant was terminated due to her pregnancy and family responsibilities. Any procedural issues had not been raised with her previously and there was nothing to suggest that the discriminatory issues were not the substantive reasons behind the termination.

Penalty ordered
The respondent was ordered to pay the applicant $5,500 as a pecuniary penalty.

Compensation ordered
The respondent was ordered to pay the applicant $8,956.61 for loss suffered.

Sagona v R & C Piccoli Investments Pty Ltd & Ors

Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 (30 April 2014).

The applicant was employed as a photographer for over 12 years with a small family-run business. The applicant advised the respondents that she was 10 weeks pregnant and proposed to take a period of maternity leave.

It was held that the applicant was forced to resign as a result of the course of conduct taken by the respondents due to her pregnancy.

The Court was also satisfied that the applicant was injured in her employment by the:

• demand that she work additional hours
• refusal to allow her to work in her usual occupation, or in alternative duties, after the Christmas break
• refusal to consider a return to work on a part-time basis, and
• abusive conduct which was directly related to her refusal to work additional hours and her letter complaining of discrimination.

Penalty ordered
The respondents were ordered to pay the applicant a total of $61,000 as a pecuniary penalty.

Compensation ordered
The respondents were ordered to pay the applicant $164,097 for loss suffered and $10,000 for distress, hurt and humiliation.

Discriminatory action based on pregnancy NOT found

Lai v Symantec (Australia) Pty Ltd

Lai v Symantec (Australia) Pty Ltd [2013] FCCA 625 (28 June 2013).

The applicant alleged that her redundancy was not genuine and that she was terminated because she was pregnant and about to take maternity leave.

The Court found that the applicant’s maternity leave was not a substantial and operative reason for the termination of her employment. Further, the mere failure of an employer to comply with their own procedures in relation to terminating an employee does not lead to a finding that the action was a prohibited one.

Family responsibilities were held not to constitute the reason for her dismissal.