Frequently Asked Questions

Q: Can employees on maternity leave be discriminated against?

In Thomson v Orica Australia (2002) 116 IR 186; [2002] FCA 939, the Federal Court found that the respondent had engaged in direct discrimination after an experienced account manager who upon returning from maternity leave, was offered a position with a similar salary and title, but in a smaller division with less valuable clients. The applicant had an expectation of returning to the same role she held prior to taking maternity leave, and in addition, no reason or explanation was provided as to why there was a change in nature of the applicant’s role. Interestingly, the respondent also had an explicit policy that allowed employees who took family leave, to return to their previous position, or a comparable position if the role no longer exists.

The applicant eventually abandoned her role and lodged a complaint stating that the actions from her former employer amounted to a repudiation of the contract of employment. Ultimately, the Federal Court agreed with the applicant that the employer had repudiated the contract and although a comparable salary and title was provided upon the applicant’s return, this did not however change the fact that she was given a position that was lower in status when taking into account the tasks, duties and responsibilities.

Furthermore, the Federal Court also found that the respondent’s demotion of the applicant amounted to less favourable treatment which was in contravention of the Sex Discrimination Act 1984 (Cth). Allsop J, ruled that the discrimination was unlawful and the applicant was treated less favourably on the grounds of her pregnancy and her sex and his Honour went on to say:

“A physical characteristic that appertains generally to women who are pregnant is that the birth of the child necessitates some confinement and so some inability to work or undertake duties whether in paid employment or otherwise. In some cases the relevant period of time may be short. However, generally, there will be some inability to attend to a usual occupation and so some requirement for leave from that occupation. To that extent, leave, that is absence from a woman’s usual occupation, generally occurs and so can be said to be a characteristic that appertains generally to pregnant women. It is thus able to be said that the need to take, and the taking of, some ‘maternity leave’ is a characteristic of pregnancy… Thus the applicant had demonstrated unlawful discrimination…”



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