A recent Federal Court case has found that an employee who was unable to return to her former position after taking one year’s maternity leave was unlawfully discriminated against on the basis of her sex and pregnancy.

In Thomson v Orica Australia Pty Ltd [2002] FCA 939, the court heard that Ms Thomson worked as an accounts manager for a division of the defendant, a position which involved direct personal sales work with significant clients. Ms Thomson took maternity leave in April 1999, and when she sought to resume her employment in April 2000, she found that she was unable to return to her former position. The person who had temporarily replaced her remained in the role and Ms Thomson was offered what she considered to be a lesser role involving more telephone work and less direct involvement with clients. Her position was still to be an accounts manager but the nature and prestige of the accounts she was now to manage were materially different and inferior to what she had previously enjoyed. Ms Thomson believed that she had been unfairly demoted from her position and sued her employer.

The court considered all the evidence alleging discrimination, including an examination of the defendant’s internal “family leave policy”. The policy stated that a person returning from maternity leave was to return to her old position or a comparable one. The court found that the employee had been unlawfully discriminated against in contravention of this policy and in breach of s46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) on the basis that, but for her sex and pregnancy, she would still have her original position of employment. The court agreed with Ms Thomson that she was effectively unable to return to her previous position with the alternative position offered to her not representing a comparable one but a lesser one.

Ms Thomson was awarded significant damages representing her loss of earnings for the year she was unable to resume her position as well as loss of entitlements as a result of her inability to work.

The issue of maternity leave is currently enjoying the spotlight as issues surrounding its costs and benefits continue to be explored by all sectors of the community. This case sends a timely warning that employers need to ensure that their employees’ rights are protected when they return to work, not just when they seek to take their leave.

Correction - Summer Edition 2002-2003

Readers are advised that an error appeared in the article concerning maternity leave and the case of Thomson v Orica Australia Pty Ltd [2002] FCA 939 which appeared in our newsletter edition "Summer 2002-2003". The article states that Ms Thomson was "awarded significant damages representing her loss of earnings…as well as loss of entitlements as a result of her inability to work". In fact, the case determined the issue of liability only, with the question of damages adjourned to a later date. The parties reached a financial settlement in the months following, avoiding the need for a damages hearing. The writer apologises for any confusion that may have occurred.