In October 2023, we reported on a decision of the Australian Capital Territory Civil and Administrative Tribunal (the Tribunal) that found an employer had unlawfully discriminated against an employee because of her breastfeeding responsibilities (see https://www.workplacelaw.com.au/posts/employer-unlawfully-discriminated-against-employee-with-breastfeeding-responsibilities)
The Tribunal has now handed down its decision in relation to the remedies flowing from that contravention (see Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2025] ACAT 3).
In summary, Southern Restaurants (Vic) Pty Ltd (the Employer) operated a number of KFC franchises across Australia. It was found to have unlawfully discriminated against an employee who was an Assistant Restaurant Manager that was returning from a period of parental leave.
The discriminatory conduct concerned the employee’s request for flexible working arrangements to accommodate her breastfeeding responsibilities, including the provision of appropriate space, time and equipment to fulfil these responsibilities while at work – or, in the alternative, permission to leave the store during her unpaid meal break to utilise the facilities at a nearby shopping centre.
The extent of the Employer’s accommodation was the provision of a pop-up tent in the back storeroom with a fold-out chair for the employee to utilise, as it could not permit the employee to leave the store without another management employee on-site trained in work health and safety.
The Tribunal found this response to be unreasonable in all of the circumstances. In particular, the employee suffered significant embarrassment and discomfort and the Employer had not adequately explored or considered all alternatives (or provided any evidence of such considerations).
It noted in particular that there was no mandate requiring that a manager trained in work health and safety be on-site at all times and that there were other options available to the Employer to comply with its work health and safety obligations that would not have imposed an unreasonable burden.
In assessing the appropriate remedies, the Tribunal accepted evidence that the employee had suffered an injury, being an adjustment disorder with mixed anxiety and depressed mood, that had been materially contributed to by the Employer’s discriminatory conduct.
The Tribunal was also guided by previous cases involving gender and caring-related discrimination (noting there are no other decisions about breastfeeding). While the Employer argued that previous decisions involving sexual harassment or discrimination were the “worst-case” scenario, the Tribunal considered that the degree of seriousness ought not to be limited to a specific class of conduct.
It considered the discrimination in this particular case was gendered and involved a significant power imbalance, with the Employer being a large franchisee with significant resources available to it while the employee was young, inexperienced and in a vulnerable position as a first-time mother. Against this background, the Employer’s conduct, which was sustained over months, was quite serious.
While the Tribunal accepted the damages were intended to be compensatory to the harm suffered by the employee (and not punitive on the Employer), it was still appropriate for it to have regard to community expectations as a barometer of the kind of expectations had by the employee and the hurt suffered when they were not met.
The Tribunal also considered the loss of maternal opportunities suffered by the employee as a result of the Employer’s conduct, which unfortunately resulted in a mental illness and personal illness, as well as time lost as a new mother that she could not get back.
Having considered all of the above, the Tribunal was satisfied that an award of $80,000 in general damages was appropriate.
In addition to this order, the Tribunal also made orders that the Employer meet the employee’s medical expenses up to $10,000 and that it review its policies and procedures for the purposes of producing an effective procedure within six months to provide breastfeeding employees with access to adequate facilities for the purpose of expressing milk.
It is worthwhile noting the Tribunal’s comments in this decision in assessing appropriate damages flowing from unlawful discrimination. In particular, it is clear that significant penalties can flow from such contraventions and that they are not limited to specific classes (such as sexual misconduct). Courts and tribunals will have regard to a number of factors, including the seriousness of the contravention in all of the circumstances.
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