Former IBM employee ordered to pay $150,000 after failing in maternity discrimination claim

A former IBM employee has been ordered to pay legal costs of $150,000 after failing to convince the Federal Circuit Court she was discriminated against after she returned to work from maternity leave.

Kelly Yeoh took maternity leave from her position as a software engineer at IBM Australia’s Canberra operations in July 2008, returning to work in the company’s South Australian offices in July 2009 following a move to Adelaide.

After a series of performance reviews and an extended period of sick leave, Yeoh’s employment at IBM Australia was terminated in March 2014.

In 2009, Yeoh had requested to return to work from home on a part-time basis for 20 hours a week, but after her supervisor raised concerns about her productivity, she accused her employer of making her work between 40 and 60 hours a week. Yeoh claimed her workload could not be completed within 20 hours and this amounted to discrimination.

The court heard Yeoh made verbal complaints against IBM but chose not to put them in writing because she was fearful of the consequences.

But Judge Sandy Street found Yeoh was never directed by IBM Australia to work longer hours and rejected her claims she was discriminated against on the basis of her gender or the fact she was a young mother.

Street also rejected Yeoh’s claims her depressive and panic disorders were contributed to by IBM and that IBM breached its contract with her.

“While it is true that the applicant did make complaints about her workload, I do not accept that she was working more than 20 hours a week on any regular basis,” Judge Street said in his judgment.

“I accept that she was working odd hours, due to the flexibility that she had as a result of her own request for that part-time employment.”

“I do not accept that the applicant was given a workload that required her to work the excess of 20 hours per week.”

Judge Street also said Yeoh was “clearly a highly intelligent, articulate and capable individual who was well able to formulate and make written complaints if she chose to do so”.

A spokesperson for IBM told SmartCompany this morning IBM’s equal employment policy and practices “promote a culture of inclusion for all, regardless of gender, race, religion or sexual orientation”. 

“Employment equality is firmly entrenched at IBM and the diversity of our workforce is critical to our company’s success,” the spokesperson says. 

“The court found in IBM’s favour, acknowledging our commitment to policies that promote a supportive workplace, and that evidence was fabricated to advance the case against the company.”

Ben Tallboys, senior associate at law firm Russell Kennedy, told SmartCompany because Yeoh brought her case under the Sex Discrimination Act, it was up to her to “prove IBM’s actions were taken for a discriminatory reason and she was exposed to the risks of having to pay IBM’s legal costs if she could not do so”.

This is unlike discrimination claims under the Fair Work Act, in which it is up to the employer to demonstrate they did not act in a discriminatory way.

Tallboys says Yeoh’s claims were ultimately dismissed because the court “did not accept her version of events”. And the end result is Yeoh having to pay IBM’s legal costs.

“This sort of outcome will typically be devastating for an individual, or even most small businesses,” Tallboys says.

“The employee represented herself at the hearing and so this case again highlights the importance for both the employer and the employee in getting the right legal advice before running or defending a claim in court.”