Morning (Sickness) Glory – Damages award for morning sickness discrimination

We all become sick of mornings at some point, whether it’s ‘Mondayitis’ or extreme regret at signing up for 5am corporate  boot-camp with your colleagues. However, a recent decision in Victoria has recognised severe morning sickness (the legitimate, pregnancy-related kind) as a disability for the purposes of State anti-discrimination laws, awarding $10,000 in general damages for associated discrimination.

Severe morning sickness a disability

The employee in this case was successful in her initial claim that she was being discriminated against by her employer because she was suffering from severe morning sickness, when comments about taking sick leave and toilet breaks were made by her employer. This discrimination was based on the employee’s pregnancy, which is not particularly ground-breaking as discrimination based on pregnancy is already prohibited by all states’ anti-discrimination laws. However, the Tribunal found that this severe form of morning sickness (named “Hypermesis Gravidarum” to the medically-minded) is a ‘disability’ because the symptoms involve functions of the body failing to function properly.

The finding that symptoms of pregnancy can be a disability is important because disabilities are often treated differently to other attributes under anti-discrimination laws. For example in Victoria employers are under a heavy burden to make reasonable adjustments for  an employee with a disability, whereas the burden is less for pregnant employees. There are also federal laws which create obligations in respect of pregnant employees, or employees with a disability under federal laws, although this case concerned Victorian laws.

The employee received a general damages award of $10,000 for hurt and humiliation. However, she was unsuccessful in her claim that the employer failed to make reasonable adjustments to her working hours for her disability, because there was no medical evidence that she required such an adjustment.

Are wacky pregnancy cravings also a disability?

Probably not. It was said that ordinarily a pregnant woman is not considered to have a disability. This suggests that ordinary pregnancy symptoms do not constitute a disability unless the symptoms involve certain functions of the body failing to function properly.

The upshot of this case and damages award is that employers may need to have regard to relevant disability legislation in their treatment of pregnant employees – in addition to pregnancy-specific protections under the Fair Work Act 2009 (Cth) and relevant sex discrimination laws, if an employee has indicated that functions of her body are failing to function properly as a result of the pregnancy.

Whilst the employee has been awarded $10,000 in damages, she is appealing the merits of the original decision in the Victorian Supreme Court, so stay tuned.

See: Bevilacqua v Telco Business Solutions (Watergardens)PL No. 2 (Human Rights) [2015] VCAT 693 (28 May 2015) and the original decision Bevilacqua v Telco Business Solutions (Watergardens)PL (Human Rights) [2015] VCAT 269 (11 March 2015)

The Fair Work Commission releases an updated Anti-bullying guide

The Fair Work Commission has released an updated version of its “Anti-bullying Benchbook” to assist parties lodging or responding to bullying claims made to the Commission.

The information book was first published in January 2014 when the Fair Work Act anti-bullying provisions commenced. It is intended to provide guidance regarding the Fair Work Act’s anti-bullying provisions and act as a “how to” manual for parties preparing materials to be submitted to the Commission in a bullying claim.

For example, the Benchbook provides an overview of the background to bullying legislation and contains a number of case examples to demonstrate where behaviour will amount to bullying which is in breach of the Fair Work Act provisions.

The updated Benchbook now includes reference to recent decisions of the Commission and guidance about the Commission’s process for dealing with bullying claims. 

The Commission has not significantly added to the commentary regarding what will constitute “reasonable management action” to assist in determining when an employer’s actions will fall within the reasonable management action exemption.  However, the updated Benchbook does refer to the 2015 decision of Amie Mac v Bank of Queensland Limited and Others ([2015] FWC 774) in now specifying that in order to be unreasonable, an employee must be able to demonstrate that a management action lacked “any evident and intelligible justification“.

While the Benchbook cautions parties against relying on its contents as an alternative to obtaining legal advice, it is clear that the book intends to provide self-represented plaintiffs with assistance in understanding the Fair Work Act’s anti-bullying laws and lodging their claims.

For employers, the Benchbook provides a useful summary of bullying laws and the Commission’s decisions in bullying cases (albeit from the Commission’s perspective), and the process and procedure that the Commissions follows once it receives a bullying complaint.

The updated Anti-Bullying Benchbook can be accessed here: http://benchbooks.fwc.gov.au/antibullying/

Implication of policy terms and breach of contract

The implied term of mutual trust and confidence may be dead and buried after the High Court’s decision in CBA v Barker.   However, employers still risk having what are intended to be discretionary “conduct” and investigation policies and procedures implied into their contracts of employment.

In a recent decision, the Full Court of the Federal Court of Appeal found that an employer had breached an employee’s contract through a failure to appropriately implement procedures outlined in its workplace harassment and discrimination policy.

Employee email and investigation

The employee of a shipping company sent the general manager and human resources personnel an email taking issue with the behaviour of her superior, the captain of the vessel she was deployed on.  In the email, the employee referred to the Captain’s behaviour as “non relenting and targeted bullying… from the first hour of the 12 day trip.  In her email, the employee did not refer to the employer’s workplace conduct policies and procedures (Policy). Rather, she suggested that the captain’s inappropriate behaviour should be addressed by the employer’s management.  The employee’s email did not raise a formal complaint, or seek investigation.

The Policy was written in fairly unequivocal terms, and made clear that the manner in which a complaint could be made and investigated was at the employee’s election.

Despite the employee’s intent, the employer treated her email as a formal complaint under the Policy.  The employer requested that the employee attend an interview, during which she was asked questions regarding not only her email but more generally, her competency.  In doing so, the employer created some confusion over the purpose of the interview, and its investigation. 

The employer’s final investigation report found that no bullying had occurred, and that any dispute between the employee and captain was as a result of a “clash of personalities and communication styles“.  Subsequent to the investigation, the employee claimed that the employer’s conduct amounted to serious breach of her contract, and she left her employment.

Implication of Policy

At the first instance trial, the employee was not successful.  She appealed, in part claiming that the Policy had formed part of her contract, and that the employer’s misapplication of an investigation procedure in the Policy (when not requested) amounted to a breach of contract. 

On appeal the Full Court found that the Policy had, (in respect of the investigation procedure) been incorporated into the employee’s contract, where:

  • the Policy was regularly enforced, included in an education program for new employees and applied to conduct that could have serious consequences in a shipping environment;
  • the employee’s letter of engagement specified that the employer’s policies were to be “observed at all times“; and
  • the Policy set out what the employer was required to do on receiving a complaint.

In this instance, the Policy was considered “more in the nature of a bargain with an exchange of undertakings and assurances or promises“,  rather than directions to employees. The Full Court was satisfied that these factors together established ‘mutual obligations’ between the employer and employee. 

The Policy did contain language of discretion, which reserved the right to change, resolve or not apply the Policy.  However, the Full Court found that no steps had been taken to exercise that discretion in this instance.  In other words, the employer had not indicated that it was electing not to follow the Policy based on an available discretion.

The Court found that the employer had contravened the policy by treating the email as a formal complaint and combining it with separate allegations from the captain about her competency. 

Consequences of breach

The Full Court did not decide on the consequences of the employer’s breach, or the value of any damages that might arise.  Instead, the Full Court remitted these questions back to the trial judge for determination.  As such, it remains to be seen as to whether the employer’s breach will, in fact, lead to any significant damages award.

In the meantime, the Full Court’s decision highlights the need for carefully-worded policies about investigation (and other employer procedures), in order to allow  for flexibility to fit a process to individual circumstances. 

The case is also a timely reminder that policies should be reviewed before embarking on investigation processes, or other procedures that have been recorded in policy documents.

If an employer intends to use an available discretion to deviate from its policies, it should take steps to make clear why it is exercising the discretion, and the process to be followed, prior to embarking on that process.

See: Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177 (22 December 2014)

Closing the Book on Bullying Orders

The Fair Work Commission has revoked anti-bullying orders upon the application of a complainant employee (applicant) who advised that the orders had been effective, and were no longer required.

Back in March 2014 the Fair Work Commission (FWC) published its first substantive orders in response to a claim brought under new anti-bullying laws that commenced on 1 January 2014 (see our post on the orders made here).

In Applicant v Respondent (AB2014/1052), a number of orders were made by the FWC to specify certain administrative controls designed to stop the applicant and respondent from being in direct contact in circumstances where bullying conduct was substantiated. One interesting feature of the orders was that they were not bound in time, and had potential to operate indefinitely where the parties made no further application to the FWC.

The orders made in March 2014 were later varied in September 2014 to specify further administrative controls on the interactions between the applicant and respondent, including in relation to their email contact and discussion of work-related issues (amongst other things). However, at the time of the variation, it was contemplated that future circumstances might permit the FWC to dismiss all orders made so that the relationship of the applicant and respondent could be managed at the workplace, independently of the FWC.

In December 2014, Senior Deputy President Drake revoked the September 2014 orders following receipt of a letter from the applicant. The letter indicated that the applicant believed it appropriate to remove the orders.  In the applicant’s letter (which forms part of SDP Drake’s decision), the applicant acknowledged the positive nature of the FWC’s intervention.

This case, which has now resolved, demonstrates that the FWC does have the capacity to assist in resolving workplace conflict in the context of a continuing employment relationship. SDP Drake’s decision also provides an example on how new anti-bullying laws operate in practice, highlighting the ability of an applicant to approach the FWC to remove orders which are no longer necessary.

Applicant [2014] FWC 9184