Tribunal finds morning sickness a workplace disability

A Victorian worker has won a civil lawsuit against her employer after the Victorian Civil and Administrative Tribunal (VCAT) this week 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”.

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”.

Proctor found Telco Business Solutions had breached the state’s Equal Opportunity Act.

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.

Employment lawyer and M+K Lawyers partner Andrew Douglas, who has been following the case, told SmartCompany the employer’s actions were clearly discriminatory.

“Health, gender and pregnancy are all relevant attributes under discrimination legislation,” says Douglas.

“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.

“Where is the conversation of support, rather than criticism?” he says.

Douglas also says it is not appropriate for an employer to comment on a woman’s pregnancy in a negative way.

“There is a culture that exists in the Australian community where women are given a somewhat special status,” he says.

“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.”

Douglas says it is not wise for an employer to alienate women.

“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.”

SmartCompany contacted Telco Business Solutions, but did not receive a response by publication.