Bevilacqua v Telco Business Solutions (Watergardens) PL (Human Rights) [2015] VCAT 269: Tribunal Finds In Favour of Employee
Friday 27 March 2015 @ 9.45 a.m. | Industrial Law | Legal Research
In the recent case of Bevilacqua v Telco Business Solutions (Watergardens) PL (Human Rights) [2015] VCAT 269 (11 March 2015), a Victorian worker has won a civil lawsuit against her employer after the Victorian Civil and Administrative Tribunal (VCAT) found she was discriminated against for having morning sickness.
VCAT Senior Member Ian Proctor ruled the employer, Telco Business Solutions in Watergardens, failed to make "reasonable adjustments" to accommodate the pregnant worker’s severe morning sickness, which he ruled was in fact a “disability”.
Background
Stephanie Bevilacqua, who had been diagnosed with a severe form of morning sickness called Hyperemesis Gravidarum, alleged managers at Telco Business Solutions had made comments relating to her pregnancy, sick leave, lifting boxes, sitting and toilet breaks that amounted to discrimination.
Bevilacqua told the court she suffered migraines, back pain, ankle pain and foot pain as a result of her condition.
When the employee advised her manager she could not work, VCAT heard the store’s manager texted her saying, "I'm f--king sick of this", and "You better f--king come in".
Findings by the Tribunal
The Senior Member found Telco Business Solutions had breached s 18(1)(d) of the Equal Opportunity Act 2010 (Vic).
He also found the employee’s manager had directly discriminated against her by commenting on her toilet breaks, but he threw out her other discrimination claims.
VCAT is yet to determine damages.
Reaction to the Finding
Employment lawyer Andrew Douglas, who has been following the case, said that the employer’s actions were clearly discriminatory:
“Health, gender and pregnancy are all relevant attributes under discrimination legislation … If someone is adversely affected by being pregnant, businesses are required to make such adjustments to accommodate those changes.”
Douglas says if an employee with morning sickness can’t undertake the inherent duties of their role, an employer must provide reasonable assistance to help them undertake those tasks. He says the best way to do so is to have a conversation with staff.
More Support Required For The Employee
Douglas also says it is not appropriate for an employer to comment on a woman’s pregnancy in a negative way. Douglas says it is not wise for an employer to alienate women.
He also questioned the amount of support, rather than criticism of the employee:
“There is a culture that exists in the Australian community where women are given a somewhat special status...We commonly see women who return to work after maternity leave be made redundant, we see adverse actions or people believing it’s OK to comment on women’s health – it’s really just not acceptable...Women, just like men are a valuable resource in an organisation. The biggest problem we have right now in the workforce is retention of highly skilled people, so doing something to damage that retention with half the population is undermining a core plank of business.”
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Sources:
Bevilacqua v Telco Business Solutions (Watergardens) PL (Human Rights) [2015] VCAT 269 (11 March 2015)
