Pregnancy case studies

The pregnancy case summaries are grouped into two categories: court and tribunal decisions, and conciliated outcomes.

Court and tribunal decisions are made after all the evidence is heard, including details of loss and damage. The full text of court and tribunal decisions is available from:

Conciliated outcomes are where the parties have reached an agreement through conciliation at the Commission.


Court and tribunal decisions

457 visa worker sacked and sexually harassed

Type of outcome Queensland Civil and Administrative Tribunal decision
Contravention Discrimination
Sexual harassment
Attribute Pregnancy
Area Work
Outcome Complaint upheld
Compensation $53,047.60 for pregnancy discrimination; $2,650 for sexual harassment
Year 2010

Summary: In this matter Ms Irvine brought complaints of sexual harassment and discrimination on the ground of pregnancy in the area of work. Her partner, Mr Porter, brought complaints of discrimination on the ground of association with someone with an attribute (namely pregnancy) and victimisation.

Ms Irvine worked as the dining room manager at Mermaids restaurant and  Mr Ingall was the sole director. Mr Porter was the executive head chef.

Ms Irvine was employed under a section 457 visa sponsorship which allowed her to remain in Australia while under the sponsorship and in the employment of the sponsoring business. The Tribunal noted that this placed her in a somewhat vulnerable position.

The harassment complaint involved text messages and email invitations to dinner, movies, and other social events. On a couple of occasions when Ms Irvine accompanied Mr Ingall to sporting events, she said that he touched her in a sexual way, which she felt was inappropriate. He also took her to a park away from work and told her that he was physically attracted to her.

She also received two emails with attachments of nude people. The Tribunal noted that Ms Irvine was in the practice of sending risqué emails herself, and that there was a practice generally of sending risqué emails at work. This part of the sexual harassment complaint failed.

The Tribunal found that there was an incident of unwelcome touching following a sporting event, and together with the fact that Mr Ingall had expressed to her that he had feelings for her, it was sufficient to amount to sexual harassment. However, the Tribunal found that it was an isolated incident and did not appear to cause Ms Irvine any particular upset or concern, and she was able to continue working with Mr Ingall. The Tribunal awarded compensation of $2,650 including interest for hurt and humiliation associated with the sexual harassment.

Ms Irvine became pregnant with Mr Porter's child and gave notice that she would be taking unpaid maternity leave. The restaurant's financial advisers mistakenly believed that a section 457-sponsored employee was entitled to be paid her full wage during any period of maternity leave. Two weeks after giving notice of her intention to take maternity leave, Ms Irvine received advice of the termination of her section 457 visa, and that her employment was also to be terminated, due to the economic downturn.

Ms Irvine and Mr Porter attended a meeting the following day with Mr Ingall, during which Ms Irvine became upset. As they were leaving Mr Porter audibly told one of the other staff members that he has just sacked a pregnant woman . Mr Porter came back later to pick up the termination letter and made another comment that this would bring the house down .

The Tribunal found that the decision to terminate the visa sponsorship and Ms Irvine's employment was made in the erroneous belief that Mermaids would have to pay her full wages while on maternity leave, and that this was financially unviable. The Tribunal considered the evidence of distress as a result of the termination on Ms Irvine, at a time when her status as a resident of Australia was uncertain and leading up to the birth of a child, and awarded compensation of $15,000 for emotional distress, and $900 interest.

Economic loss from the time of termination of employment to the date when Ms Irvine would have taken unpaid leave was assessed at $33,147.60, plus $4,000 interest. The total award for pregnancy discrimination was $53,047.60.

Mr Porter's employment was terminated two days after Ms Irvine. He claimed discrimination on the ground of association with someone with the attribute of pregnancy and victimisation.

The Tribunal found that the real basis for the decision to terminate Mr Porter was not any association with Ms Irvine, but probably a serious over-reaction to or misunderstanding of the comments Mr Porter made to some staff. Accordingly, no discrimination or victimisation was found to have taken place in relation to Mr Porter.

Irvine and Porter v Mermaids Café and Bar Pty Ltd (No 2) [2010] QCAT 482

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Verbal abuse of pregnant worker

Type of outcome Anti-Discrimination Tribunal decision
Contravention Discrimination
Attribute Pregnancy
Area Work
Outcome Complaint upheld
Compensation $11,472.50
Year 2009

Summary: An apprentice hairdresser claimed she was verbally abused by her employer after seeking time off to attend an antenatal doctor's appointment and that this abuse caused her to resign. Prior to her announcing the pregnancy, her employer had twice commented that staff who became pregnant would be sacked.

The Tribunal found that although the comments may have been said as a joke, the complainant took them seriously and perceived a change in her employer's behaviour after she announced her pregnancy. The complainant was awarded compensation of $10,373.50 with interest of $1,099.

Roberts v King [2009] QADT 3

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Denied return to full-time work

Type of outcome Anti-Discrimination Tribunal decision
Contravention Discrimination
Attribute Pregnancy
Area Work
Outcome Complaint upheld
Compensation $20,973
Year 2005

Summary: An accountant who had been working for her employer for seven years took maternity leave, and then worked from home at an hourly rate for approximately two weeks before giving birth. About three weeks after the birth she resumed working from home at an hourly rate, and would regularly visit the office taking and returning files, sometimes with the baby. This arrangement continued for about two and a half months when in early December the woman left a note for the employer saying she wished to return to full-time work after Christmas. The employer said there was not enough work for her to return full time, and after making an application to the Industrial Relations Commission to be reinstated, the woman found another job and commenced work about four months later.

The tribunal accepted that the employer had refused to let the woman return to full-time work because she had taken maternity leave and there was a prospect she may have more children.

The tribunal awarded total compensation of $20,973, made up of:

$5,000 general damages

$450 interest on general damages

$7,650 lost wages

$688 loss of superannuation

$5,160 loss of bonus payments

$2,025 interest on loss of wages, superannuation, and bonus payments

Pressler v Stewart [2005] QADT 33

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Conciliated outcomes

Pressured into resigning

Type of outcome Conciliation
Contravention Discrimination
Attribute Pregnancy
Area Work
Outcome Financial compensation
Compensation Amount not disclosed

Summary: A woman engaged to work on a temporary contract (six months) knew she was pregnant when she was employed and did not disclose the fact to the potential employer, as the baby was not due until one month after the contract would be completed. She was of the view that she would be able to fulfil the job requirements during the contract term. The woman hoped that the employer would recognise her good work and would want to retain her as an employee after the contract ended as she only planned to have 12 weeks away from work when the baby was born.

Approximately six weeks into the contract the woman advised the employer that she was pregnant. A manager advised her that he was disappointed that she had not come clean at the job interview, and that he wished she had told him up front.

The woman claimed her supervisor then began treating her poorly. She felt forced to resign (four weeks before the end of the contract period) because of pressure put on her by the supervisor about when she was going to leave. The woman rejoined the workforce in a similar role but with a different company when the baby was 12 weeks old.

At the conference the company advised that it had a practice of keeping employees after the expiration of a contract where it is possible and suitable to both sides. The supervisor said he had enquired about when the woman was going to finish working and had suggested she should discuss it with her husband as he had concerns for her and the baby's health.

The complaint resolved with the company paying compensation to the woman.

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Victimised once pregnancy disclosed

Type of outcomeConciliation
ContraventionDiscrimination
Victimisation
AttributePregnancy
AreaWork
OutcomePayment of entitlements, a reference, financial compensation, and legal costs
Compensation$3,500

Summary: A woman complained to the Commission that after informing her employer she was pregnant, her supervisor made numerous comments suggesting she would need to finish work. Suggestions were also made that her position would not be available after her baby's birth due to restructuring.

The supervisor had placed documents in the woman's in tray, amongst other paper work, which related to maternity leave and how to terminate an employee. On finding these documents she took them to her solicitor who in turn wrote to the employer advising that a complaint would be lodged with the Commission. The employer, on receiving the solicitor's letter stood her down on full pay, pending an investigation, alleging the woman removed confidential documents from his office. Her solicitor then lodged a complaint of victimisation and discrimination on the ground of pregnancy with the Commission.

At conciliation the employer offered to reinstate the woman, but because of the dispute the woman felt the future working environment would not be tolerable. The employer agreed to accept her resignation and pay all associated entitlements. The employer also agreed to pay her legal costs regarding the dispute, provide a reference and pay $3,500 for the distress, pain and suffering she experienced.

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No job on return to work

Type of outcomeConciliation
ContraventionDiscrimination
AttributePregnancy
AreaWork
OutcomeRedundancy payment accepted
Compensation$15,958

Summary: A woman returning to work after a period of maternity leave found that her position was no longer available.

Following conciliation, the parties agreed to a redundancy payout to the woman of $15,958.

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