Business hit with $80,000 penalty for discriminating against breastfeeding mum

A fast food franchise owner has been ordered to pay more than $80,000 in damages after discriminating against a breastfeeding mum.

The woman, who has not been named by the ACT Administrative and Civil Tribunal (ACAT), was a manager at KFC Tuggeranong when she sought flexible work arrangements to accommodate breastfeeding after returning to work. She has since resigned.

Her case was heard in ACAT where her employer – Southern Restaurants (VIC) Pty Ltd – was found to have hindered her efforts to express breastmilk while at work in a 2023 decision.

The tribunal found a requirement that she stay on the premises at all times during her shifts, including during her unpaid breaks, had “unreasonably disadvantaged” her.

In a recent decision over damages, ACAT’s Presidential Member Heidi Robinson and Senior Member Lea Drake said a worrying element was an inflexible approach from the employer.

“The discrimination was gendered and involved a significant power imbalance between the employee and the employer, a large franchisee with significant resources available to it, including human resources and legal staff,” they said.

“The applicant was young, inexperienced, and in a vulnerable position as a first-time mother.”

According to the decision, the woman first asked if she could have flexible work arrangements to accommodate breastfeeding and other parental responsibilities in September 2021 and then made a formal written request the following month.

However, the tribunal found that when she returned to work in March 2022 after giving birth, adequate facilities to accommodate breastfeeding were not in place.

The woman was left feeling hurt and humiliated by her treatment, which included incidents where she was asked invasive questions by two adult men. It was suggested that she accept a demotion to become a casual employee and it was recommended she express breastmilk in the toilets.

Eventually, the woman was able to “sit inside a camping toilet tent” to express milk in a room without a door that all employees had access to. While the woman was told it would be too expensive to install a door, the tribunal found no quote was sought.

Ms Robinson and Ms Drake said an adjustment disorder with mixed anxiety and depressed mood experienced by the woman was “materially contributed to” by the discrimination.

“Instead of enjoying adjusting to her life as a mother and obtaining the best circumstances for her child, she was obliged to engage in a continuous battle to obtain a response from the respondent that would meet minimum community standards. It was a battle she lost,” they said.

“The outcome was a mental illness and personal suffering as has been outlined in the evidence to date. She cannot get that time back.”

Ms Robinson and Ms Drake said the woman had lost “her pleasure and pride” in her career as a result of how she was treated.

“She commenced as a junior with the respondent, and she had progressed to management,” they said.

“She expected reciprocal loyalty and support for the loyalty which the Tribunal accepts she provided to the respondent during her employment.”

They ordered Southern Restaurants to pay her $80,000 in general damages and to cover costs of mental health treatment for 12 months to a maximum of $10,000.

The employer will also have to review its policies for breastfeeding employees, including how it offers them space to express breastmilk during working hours.

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