Irvine and Porter v Mermaids Café and Bar Pty Ltd (No 2)  QCAT 482, 27 September 2010
In this matter Ms Irvine brought complaints of sexual harassment and discrimination on the ground of pregnancy in the area of work. Her partner, Mr Porter, brought complaints of discrimination on the ground of association with someone with an attribute (namely pregnancy) and victimisation.
Ms Irvine worked as the dining room manager at Mermaids restaurant and the second respondent, Mr Ingall, was the sole director. Mr Porter was the executive head chef.
Ms Irvine was employed under a section 457 visa sponsorship which allowed her to remain in Australia while under the sponsorship and in the employment of the sponsoring business. The Tribunal noted that this placed her in a position.
The harassment complaint involved text messages and email invitations to dinner, movies and other social events. On a couple of occasions when Ms Irvine accompanied Mr Ingall to sporting events, she said that he touched her in a sexual way, which she felt was inappropriate. He also took her to a park away from work and expressed his feelings towards her – namely that he was physically attracted to her.
She also received two emails with attachments of nude people. The Tribunal noted that Ms Irvine was in the practice of sending risqué emails herself, and that there was a practice generally of sending risqué emails at work. This part of the sexual harassment complaint failed.
The Tribunal found that there was an incident of unwelcome touching following a sporting event, and together with the fact that Mr Ingall had expressed to her that he had feelings for her, it was sufficient to amount to sexual harassment. However, the Tribunal found that it was an isolated incident and did not appear to cause Ms Irvine any particular upset or concern, and she was able to continue working with Mr Ingall. The Tribunal awarded compensation of $2,650 including interest for hurt and humiliation associated with the sexual harassment.
Ms Irvine became pregnant with Mr Porter's child and gave notice that she would be taking unpaid maternity leave. The restaurant's financial advisers mistakenly believed that a section 457 sponsored employee was entitled to be paid her full wage during any period of maternity leave. Two weeks after giving notice of her intention to take maternity leave, Ms Irvine received advice of the termination of her section 457 visa, and that her employment was also to be terminated, due to the economic downturn.
Ms Irvine and Mr Porter attended a meeting the following day with Mr Ingall, during which Ms Irvine became upset. As they were leaving Mr Porter audibly told one of the other staff members that . Mr Porter came back later to pick up the termination letter and made another comment that this would .
The Tribunal found that the decision to terminate the visa sponsorship and Ms Irvine's employment was made in the erroneous belief that Mermaids would have to pay her full wages while on maternity leave, and that this was financially unviable. The Tribunal considered the evidence of distress as a result of the termination on Ms Irvine, at a time when her status as a resident of Australia was uncertain and leading up to the birth of a child, and awarded compensation of $15,900 for emotional distress and interest.
Economic loss from the time of termination of employment to the date when Ms Irvine would have taken unpaid leave was assessed at $37,147.60 including interest. The total award for pregnancy discrimination was $53,047.60.
Mr Porter's employment was terminated two days after Ms Irvine. He claimed discrimination on the ground of association with someone with the attribute of pregnancy and victimisation.
The Tribunal found that the real basis for the decision to terminate Mr Porter was not any association with Ms Irvine, but probably a serious over-reaction to or misunderstanding of the comments Mr Porter made to some staff. Accordingly, no discrimination or victimisation was found to have taken place in relation to Mr Porter.
The applicants and the respondents were all legally represented at the hearing, and the matter is to be re-listed for the parties to make submissions as to costs.
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Verbal abuse of pregnant worker
A complaint by an apprentice hairdresser of pregnancy discrimination was successful at the Tribunal.
She claimed she was verbally abused by her employer after seeking time off to attend an antenatal doctor's appointment and that this abuse caused her to resign. Prior to her announcing the pregnancy, her employer had twice commented that staff who became pregnant would be sacked.
The Tribunal found that although the comments may have been said as a joke, the complainant took them seriously and perceived a change in her employer's behaviour after she announced her pregnancy. The complainant was awarded compensation of $10 373.50 with interest of $1099, plus costs.
Roberts v King  QADT 3 (20 February 2009)
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Pregnancy in work
A woman engaged to work on a temporary contract (six months)knew she was pregnant when she was employed and did not disclose the fact to the potential employer as the baby was not due until one month after the contract would be completed. She was of the view that she would be able to fulfil the job requirements during the contract term. The woman hoped that the employer would recognise her good work and would want to retain her as an employee after the contract ended as she only planned to have 12 weeks away from work when the baby was born.
At the conference the company advised that it had a practice of keeping employees after the expiration of a contract where it is possible and suitable to both sides.
Approximately six weeks after commencing work the woman advised the employer that she was pregnant. A manager advised the woman that he was disappointed that she had not 'come clean' at the job interview and that he wished she had told him up front. The woman claimed her supervisor then began treating her poorly. She felt forced to resign (four weeks before the end of the contract period) by pressure put on her by the supervisor about when she was going to leave. The woman rejoined the workforce in a similar role with a different company when the baby was 12 weeks old. At the conference the supervisor said he had enquired about when the woman was going to finish working and had suggested she should discuss it with her husband as he had concerns for her and the baby's health.
The complaint resolved with the company paying compensation to the woman.
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Pregnancy discrimination and victimisation at work
A woman complained to the Commission that after informing her employer she was pregnant, her supervisor made numerous comments suggesting she would need to finish work. Suggestions were also made that her position would not be available after her baby's birth due to restructuring. The supervisor had placed documents in the woman's In tray, amongst other paper work, which related to maternity leave and how to terminate an employee. On finding these documents she took them to her solicitor who in turn wrote to the employer advising that a complaint would be lodged with the Commission. The employer, on receiving the solicitor's letter stood her down on full pay, pending an investigation, alleging the woman removed confidential documents from his office. Her solicitor then lodged a complaint of victimisation and discrimination on the ground of pregnancy with the Commission.
All parties agreed to informal conciliation by the Commission with a view to avoiding the formal complaint process. At conciliation she was offered reinstatement, but because of the dispute the woman felt the future working environment would not be tolerable. The employer agreed to accept her resignation and pay all associated entitlements. The employer also agreed to pay her legal costs regarding the dispute, provide a reference and pay $3,500 for the distress, pain and suffering she experienced.
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The complainant alleged that her employer, a financial institution, had discriminated against her on the ground of pregnancy. It was alleged that on return to full time work, the complainant's position was not made available and the position had been advertised and filled. There had been two conferences held through the Industrial Relations Commission without success. Following the negotiation about who would attend the ADCQ Conference on the day, some positive discussions were held about the details and prior negotiations relating to the complaint. Post conference negotiations resulted in agreement that the complainant be made redundant with a payout of $15,958. In addition, it was agreed that a current Workers Compensation claim by the complainant would not form part of the agreement and would be dealt with in the normal manner.
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C.M. is a 36-year-old Spanish-speaking Mexican-American woman with a 3-year history of type 2 diabetes. She was seen in her primary physician’s office because of a missed menstrual period; a pregnancy test was positive.
Her past obstetrical history included five vaginal deliveries and six miscarriages. All of her previous pregnancies occurred before the diagnosis of diabetes. Her previous medical care was in Mexico. She was never told of any glucose problem during her pregnancies, and she does not know the birth weights of her children. At the time of referral, she was 8 weeks pregnant and taking glyburide 10 mg twice daily. She was checking her blood glucose once daily in the morning with typical readings between 180 and 220 mg/dl on a plasma-referenced meter. Family history was positive for diabetes in her mother.
Her height was 62 inches, and her weight was 198 lb. Other than mild acanthosis nigricans and obesity, her physical examination was normal. She had no retinopathy and no evidence of neuropathy. Her glycosylated hemoglobin (HbA1c) level was 10.5% (normal <6.0%), and an office capillary blood glucose 4 h after lunch was 201 mg/dl.
She was started on insulin immediately and her glyburide was discontinued. She began monitoring her glucose before and after each meal, making daily adjustments in insulin. She received nutrition education with an appropriate calorie intake plus an emphasis on frequent smaller meals and limited carbohydrate intake. Within 1 week, her plasma glucose values were in the target range for pregnancy, but in the following week she had a spontaneous miscarriage. After her miscarriage, she discontinued insulin on her own and resumed taking glyburide 10 mg twice daily.
1. Is there a relationship between C.M.’s diabetes and her adverse obstetrical history?
2. What should have been done before her recent pregnancy to increase the odds of a favorable outcome?
3. What considerations affect the choice of therapy for her diabetes now?
In the past, most diabetic women who conceived had type 1 diabetes. Today, however, we see an increasing number of women who have preconception type 2 diabetes. One reason is the tendency for many women to delay pregnancy until a later age. Another important factor, however, is the increasing number of children and young adults, especially in minority groups, who are developing type 2 diabetes.1
The presence of diabetes in a woman of childbearing years is a special challenge. Blood glucose control during the first 2 months of pregnancy is critical to normal organ development. Commonly, however, women do not seek medical attention until after this period of early fetal development. Many women do not yet realize they are pregnant during this important period, especially if the pregnancy is not planned, which is the situation in well over half of all pregnancies. For this reason, preconception counseling must be an important aspect of management in all diabetic women of childbearing years, regardless of whether there is an expressed desire to conceive.2,3
Even though C.M.’s diabetes was diagnosed 3 years ago, the fact that she is already poorly controlled on maximal sulfonylurea treatment suggests a longer duration of diabetes. This supports the possibility that her poor obstetrical history may have been related to undiagnosed (and, therefore, uncontrolled) diabetes. Certainly during her most recent pregnancy, C.M. was poorly controlled during the critical period of organ development, possibly leading to an anomaly incompatible with fetal viability.
Comprehensive preconception counseling is now indicated for C.M. Oral diabetic medications have not been adequately studied for safety during pregnancy. Therefore, a woman who is taking oral medication and who wishes to conceive should be switched to insulin, and control should be established before she becomes pregnant. If C.M. plans another pregnancy or if she is not actively using birth control, she needs to resume insulin treatment.
Even patients whose diabetes is well controlled with diet and exercise are almost certain to require insulin during the later stages of gestation, when insulin resistance increases markedly. Preparing patients for this likelihood and teaching insulin administration as part of preconception counseling is advisable. Before pregnancy occurs is the ideal time to address any patient fears and misconceptions about insulin treatment.
For a woman of childbearing age who does not wish to become pregnant, choice of therapy can be important. Insulin resistance, almost universally present in type 2 diabetes, may be associated with decreased fertility. This is most clearly evident in polycystic ovary syndrome.4 Oral diabetic medications that reduce insulin resistance, such as metformin and thiazolidinediones,5 may also restore fertility. Thus, a previously infertile patient with type 2 diabetes may become unexpectedly pregnant after starting an insulin-sensitizing medication unless she is counseled regarding the need for birth control.
1. Preconception counseling is important for all women with diabetes, type 1 or type 2, who are in their childbearing years, since many pregnancies are not planned and poor glucose control early in pregnancy is associated with a higher incidence of major congenital defects.
2. Especially in minority populations, increasing numbers of women with type 2 diabetes who are treated with oral medications may be in their childbearing years. There are not adequate safety data to recommend the use of oral diabetic medications during pregnancy.
3. Oral diabetic medications that reduce insulin resistance may increase fertility in women previously unable to conceive.
Diane M. Karl, MD, is medical director of diabetes services at Adventist Health and an assistant professor of clinical medicine at Oregon Health Sciences University in Portland, Ore.
- American Diabetes Association