Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination)

The applicant, Complainant 202258, has brought a case against Southern Restaurants (Vic) Pty Ltd for alleged discrimination on the basis of breastfeeding. The Australian Human Rights Commission's Anti-Discrimination Tribunal heard the matter. The primary issue for the Tribunal to determine was whether the respondent's imposition of a workplace condition that managers must not leave the worksite during breaks unless there is another manager on site who is certified in work, health and safety, constituted indirect discrimination against the applicant because she was breastfeeding. The applicant argued that this condition unreasonably disadvantaged her because she was breastfeeding and there were no alternative arrangements provided by the respondent to accommodate her needs.

The Tribunal examined the evidence presented by the parties and considered the impact of the condition on the applicant. The Tribunal noted that there was no direct evidence from the respondents' representatives or the HR director to counter the applicant's evidence. It was established that the respondent had implemented this policy based on operational considerations, and it was not mandated by law. The Tribunal had to determine whether this policy had the effect of disadvantaging the applicant because of her breastfeeding status. In making this determination, the Tribunal referred to previous cases such as Wang and Prezzi, which clarified that the term 'disadvantage' does not necessarily require a comparison with others but can be understood as an unfavourable circumstance or condition resulting from a specific policy.

The Tribunal concluded that the condition imposed by the respondent did indeed disadvantage the applicant because she was breastfeeding, as it required her to either express her breast milk at work under the conditions provided by the employer or refrain from expressing while at work. This was deemed to be unreasonable and constituted indirect discrimination under the Discrimination Act 1991. Consequently, the Tribunal found in favour of the applicant and ordered that the matter be listed for further directions to determine the next steps in the proceeding, including the orders the Tribunal must make under section 53C of the Human Rights Commission Act 2005.