Damages for morning sickness discrimination not settled yet

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Damages for morning sickness discrimination not settled yet

The question of appropriate damages for disability discrimination arising from morning sickness at work is to go to the Victorian Supreme Court.

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The question of appropriate damages for disability discrimination arising from morning sickness at work is to go to the Victorian Supreme Court.

In an earlier case, it was found that the employer had discriminated against the employee who was harassed over taking time away from her work station due to morning sickness. The employee had resigned as a result of this treatment.

In the earlier decision – B v Telco Business Solutions (Watergardens) PL (Human Rights) [2015] VCAT 269  (11 March 2015) – VCAT found TBS breached s18(d) of the Equal Opportunity Act 2010 because it directly discriminated against Ms B (see comments about taking sick leave and comments about toilet breaks).  

In this current matter, the employer was ordered, within 28 days of Supreme Court of Victoria Proceeding SC 2015 01569 being determined, to pay to the applicant the sum of $10,000 unless the Supreme Court varies that amount. The applicant is seeking a considerably larger sum than $10,000.

Some history


In September 2013, Ms B discovered she had been pregnant since early August. Her ill health was then identified as symptoms of morning sickness. She was employed as a full-time Sales Consultant at a Telstra Store owned by Telco Business Solutions (Watergardens) P/L (TBS).

She advised TBS. Her morning sickness continued. She asked TBS to reduce her hours of work to 28 hours a week. TBS refused. On 7 October 2013, Ms B tendered her resignation and left two weeks later.

Disability


The VCAT found morning sickness qualified as a disability and the applicant had been the victim of discrimination – see: Morning sickness is a recognised disability 

The tribunal took into account other awards over discrimination and awarded $10,000 here – noting:

“. . . I have decided $10,000 general damages are appropriate to compensate Ms B; for hurt and humiliation she experienced . . . I have declined to award compensation with respect to psychological treatment for Ms B. I was not satisfied the discrimination was a significant cause of the PTSD, depression and anxiety Ms B suffers . . .”

The bottom line: The Supreme Court will rule on its view of appropriate compensation in this matter.

B v Telco Business Solutions (Watergardens) PL No. 2 (Human Rights) [2015] VCAT 693 (28 May 2015)  

See also: Morning sickness is a recognised disability 

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