Discrimination in the workplace can occur in a variety of ways. The following is a case summary from the Howe v. Qantas Airways Limited [2004] FMCA 242. The Commission in that cases made it clear that refusing a flight attendant’s claim for payment of sick leave during pregnancy is discriminatory
A flight attendant (Howe) was hired by Qantas in 1988 and was twice promoted on merit, first to a supervisory and then to a managerial position. She became pregnant while working as a managerial flight attendant for international flights. When her pregnancy reached 16 weeks, she ceased from her flight duties as directed by their company rules as this would expose her foetus to ionizing radiation. She asked to be given ground duties to train new flight attendants but she was told that the only available ground work was that of an office clerk in the engineering department that paid a third of her usual annual salary as a flight attendant manager. She accepted the demotion and worked at the Engineering Department until she the time she gave birth. She took a maternity leave when her baby was born prematurely. She was paid maternity benefits for the first four weeks but was on unpaid maternity leave for the next four weeks.
When she came back to work after her extended maternity leave, she had asked that she be paid her accumulated sick leave pay. She was given a minimal amount and not the amount corresponding to all her accumulated sick leave. She also asked that she be re-assigned to shorter international flights as she now had a daughter to care for. She was told that the shorter international flights were given to other managerial flight attendants who were more senior than her. In order to remain with her daughter more hours, she had to take a demotion from the managerial position to that of an ordinary flight attendant. Her pay as an ordinary flight attendant was also reduced to about half of her pay as a managerial flight attendant.
She then filed this adverse claim for sexual discrimination. The flight attendant contended that the airlines’ refusal to give her work that was compatible with her skills when she was pregnant the airlines discriminated against her and her right to work under her contract of employment was violated. She also contended that the airline’s refusal to pay her accumulated sick leave was also discriminatory as she had stopped serving on flights for a medical reason (potential exposure to ionizing radiation) and the medical reason was peculiar to her gender and to her condition of pregnancy. She also contended that by not giving her flexible working hours so she can attend to her family responsibilities, she was forced to take a job that paid her less and was therefore, demoted, by reason of her family responsibilities. She contended that this was not only discriminatory but it was also in the nature of a constructive dismissal.
The Court ruled that all these circumstances show that the flight attendant was discriminated against by virtue of her sex, gender, her pregnancy and by her family responsibilities. By refusing to find work for her that matched her skills and assigning her to clerical work and paying her a much reduced salary, the airlines violated her contract of employment. By refusing to give her part time employment or assigning her to shorter flights so she can be home for longer hours, the airlines also treated her more unfavourably than other flight attendants who were also managers. Ordinary flight attendants were treated more favourably than the flight attendant manager.
In finding for the flight attendant, the court applied the provisions of the Sexual Discrimination Act 1984. The Court held that the acts of the airlines put the flight attendant at a disadvantage when it imposed conditions that had the potential of putting other pregnant women in similar circumstances under the same disadvantage. The court ordered the airlines to pay the flight attendant general damages and special damages with interest.
Call MKI Legal, employment discrimination lawyers if you have experienced Discrimination in the workplace for advice on your rights.
Read More
Contravening a modern award makes employer liable for payment of backpay to underpaid employees and civil penalties
Repeated instances of inappropriate, unprofessional conduct and neglect of duties found to be valid reasons for termination
Secretly recording disciplinary meetings with your manager is a valid cause for dismissal
Pecuniary penalty awarded to employee made to do unpaid “dips” before a shift
Refusing a pregnant employee’s return to work – an adverse action prejudicial to employment for which employer meted civil penalty
Coughing in co-employee’s face is a valid reason for dismissal
Pre-school teacher’s resignation upheld as constructive dismissal & wins her old job back after going for unfair dismissal
Farm Manager Forced to Resign Wins Unfair Dismissal Claim
It’s my wife or your job: Failing to please the boss’s wife is not a valid ground for dismissal
