Breastfeeding employee 'indirectly discriminated' against by Tuggeranong KFC franchise owner

“Humiliation, hurt and distress”: these are some of the experiences of a Tuggeranong KFC employee when she tried to return from maternity leave while still breastfeeding.

The woman’s case was escalated to the ACT Civil and Administrative Tribunal (ACAT), which found her employer – Southern Restaurants (VIC) Pty Ltd, which is the largest private KFC franchise owner in Australia – had indirectly discriminated against her due to policies in place which hindered her efforts to express milk while at work.

According to tribunal documents, the de-identified woman was discriminated against by imposing upon her a term and condition of employment where she was required to stay on the premises of the Tuggeranong KFC store where she worked – including during unpaid breaks – and this condition “unreasonably disadvantaged” her because she was breastfeeding.

The tribunal heard the woman was meant to return from parental leave in November 2021 and had requested shifts that would line up her childcare arrangements with her husband’s work commitments.

She then had to attend a meeting with an area manager and restaurant manager to discuss her request.

The tribunal heard during this meeting the two men asked her about what was involved in breastfeeding and expressing milk for her child, questioned whether she could express milk before or after her shift, and recommended she ask other KFC employees how they managed their breastfeeding responsibilities around work commitments.

“[She] was questioned in a way that made her feel pressured to wean or formula feed her child,” tribunal documents stated.

“She felt that [the men] were inferring that she could not make her own decisions about what was appropriate for her and her child, and questioned her decision to continue breastfeeding her daughter.

“[She] suggested that they look for information on how to support and facilitate breastfeeding in the workplace. She was shocked that a large company such as KFC did not educate their leaders on how to support breastfeeding women returning to work and that KFC did not appear to have any policies or procedures for circumstances such as hers.”

A central issue was that the woman was an assistant restaurant manager and KFC policy stated there always had to be at least one restaurant manager or assistant restaurant manager on-site “at any one time” who was trained to respond to health and safety matters.

She had suggested that she take unpaid breaks to express milk in a parents’ room at a nearby mall or be transferred to another store with appropriate facilities.

The woman instead was offered to return to work on a casual basis as a team member, which was a demotion.

She then requested a private and clean room with a comfortable chair to express in, as well as access to a refrigerator to store the expressed milk, sufficient time to express and facilities to wash and store her expressing equipment.

While the fridge and a sink to wash items in could be provided, her request for a private room and chair was denied.

“[There is] nowhere in the store that is private,” she was told, according to tribunal documents.

“[Tuggeranong] KFC’s store layout does not have private rooms and therefore it would not be able to accommodate this request given it’s not practical and too costly to accommodate.”

Eventually, the woman was provided with a fold-out chair and “smallish tentlike cover [used] for a camping toilet” in the back storeroom, which did not have a lock.

She developed anxiety as a result of trying to come to a solution, felt “isolated”, “trapped and pressured to discontinue breastfeeding”, and “pain and discomfort” when she couldn’t express.

“[She also] felt guilt, selfishness, and diminished self-worth because she was conscious that others in her position would have just accepted the situation,” the documents stated.

The woman ended up resigning.

The tribunal was not satisfied any practical or financial difficulties the store could have faced were a “disproportionate burden” on the business and that there were a number of ways it could have accommodated the woman’s need to express milk while at work.

“The respondent has not adjusted to the needs of a modern workplace where women can give birth, breastfeed their children, and return to the workforce in a welcoming and accommodating fashion,” it stated.

“The attitude of the respondent … is not likely to encourage women of childbearing age to consider [them] as a long-term employer.”

It expressed concern about the woman’s treatment by the two men and was also dismayed another senior employee suggested the woman express milk in the toilet.

“It was certainly the case many years ago that toilets were the only place available to mothers who wished to express milk, but these days many [businesses] provide proper Parent Room facilities or other appropriate accommodations,” the tribunal stated.

“Catering to the needs of breastfeeding employees is not an outlandish demand.”

The matter will return to ACAT on 29 September.