Employee on maternity leave awarded $26,750 for discrimination

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Employee on maternity leave awarded $26,750 for discrimination

A Queensland employee has won $10,000 in damages plus economic loss after the state’s Anti-Discrimination Tribunal found her employer failed to select or even to consider her for a management position because she was absent from the office on maternity leave.

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A Queensland employee has won $10,000 in damages plus economic loss after the state’s Anti-Discrimination Tribunal found her employer failed to select or even to consider her for a management position because she was absent from the office on maternity leave.

Background

The complainant, a former reservations manager at Cairns adventure tourism operator Raging Thunder, alleged she had been directly and indirectly discriminated against on the basis of pregnancy and parental status in employment.

The complainant had selected and trained another staff member to be her temporary replacement while she was on maternity leave and notified the company that she would return in August/September of the following year.

During her time-off she kept in contact with her colleagues and in June she rang one of the directors a number of times to advise him she had arranged childcare and planned to return to work on August 6. He was unavailable to speak with her so she left a message detailing the proposed date of her return. The director did not call back until July.

During the conversation, the complainant suggested she work three days a week initially, but the director was not keen on this idea as it would mean two reservations managers. After the call finished she decided five days a week would be better, but the director could not take her call. Again the director did not get back to her and when she visited the office he told her he had not yet had time to look at the situation.

On July 30, a second director visited her home. She said that he advised her that the company had restructured and that there was no longer a position available for her. The complainant said that she told the director that he could not do this to her and that if he could not provide her with her existing position, then he was obliged to provide her with a similar role.

The complainant says that the director told her that he did not have one and that he was not about to make one for her. That night a work colleague phoned the complainant with the news that the colleague had been made call centre manager and the complainant’s temporary replacement had been appointed her second in charge.

The second director gave evidence that until July 30 when he spoke to the first director, he had no idea the complainant was planning to return to work the next week. He said the complainant should have discussed with him (as opposed to the other director) her intended return to work and that she did not do so until after the restructure decision had been made and communicated to her.

The directors gave evidence that the reasons for the restructure were economic and operational. They said the amalgamation of the inbound and reservations departments had been contemplated for some time and one of the main reasons for the restructure related to the company assuming management of a resort it had purchased. The necessary changes had to be in place by September 1. The second director said that he made a decision about the call centre manager and the 2IC positions 'towards the end of July'.

Findings

The tribunal said the process adopted by the company in responding to the complainant’s attempts to negotiate her return to work was 'far from ideal', however this did not make it discriminatory.

The tribunal then said it accepted the evidence that the restructure was for operational and economic reasons rather than because of the complainant’s attributes of pregnancy or parental status. Again, it said that although there might be some criticism of the way in which the redundancy was handled from an industrial perspective, that did not render the conduct discriminatory.

It found the call centre manager was appointed because of her superior skills and experience which meant there was no grounds for discrimination.

However, it found that the employee given the 2IC position had inferior skills and experience to the complainant. It said the second director chose this employee because she was acting in the most senior position in the reservations centre, the complainant’s pre-maternity leave position, at the time of the decision.

'The only reasonable inference which can be drawn, considering all the evidence, is that [the second director] failed to select or even to consider the complainant for the 2IC position because she was absent from the office on maternity leave.'

The tribunal said that when the directors finally spoke about the complainant’s imminent return to work, 'it was the catalyst for a hastily convened meeting between [the second director] and relevant staff in order to communicate his decisions about the restructure and their appointment to the two new positions, to them'.

The tribunal concluded that the reason or a substantial reason for the company’s failure to appoint the complainant to the 2IC position was her taking of maternity leave and that this was less favourable treatment than would have been afforded a relevant comparator and consequently it was direct discrimination.

It said the company also directly discriminated against her by failing to offer her a suitable alternative position. It awarded her general damages of $10,000 and compensation for economic loss of $14,547 making a total after interest of $26,750.

Du Bois-Hammond v Ariel, Cole and Raging Thunder Pty Ltd [2004] QADT 27 (26 August 2004)

Related 

Constructive dismissal flowed from maternity leave breach

Employer's obligations to returning maternity leave employees

Pregnancy guidelines

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