Bevilacqua v Telco Business Solutions (Watergardens) PL (Human Rights) [2015] VCAT 269

1. The Tribunal finds the Respondent breached s 18(1)(d) of the Equal Opportunity Act 2010, in that it directly discriminated against the Applicant as set out in paragraphs 160 to 168 (comments about sick leave) and 171 to 176 (comments about sitting and toilet breaks) of the following reasons the decision.
2. Concerning all other allegations, the proceeding is dismissed.
3. On or before 25 March 2015 the applicant may file and serve further submissions as to remedies.
4. On or before 10 April 2015 the respondent may file and serve submissions as to remedies.
5. Unless one or both parties seek to make oral submissions concerning remedies, the Tribunal will decide that issue with reference to written submissions.
6. Costs reserved.

1. In January 2011, Ms Stephanie Bevilacqua began full time employment as a full time Sales Consultant at a Telstra Store (the Store) in metropolitan Melbourne, owned by Telco Business Solutions (Watergardens) P/L (TBS). She worked a 38 hour week.
2. At the relevant times, Mr John Rovas was employed by TBS as Managing Director of the Store. His brother Mr Emmanouel Rovas was employed as the Store's Manager.
3. In summary, in early September 2013, Ms Bevilacqua discovered she had been pregnant since early August. Her recent ill health was then identified as symptoms of morning sickness. She advised TBS. Her morning sickness continued. In the context of Ms Bevilacqua having experienced a prior miscarriage, Dr Bharat Kaushik, a general practitioner, agreed with her suggestion that she reduce her hours of work to 28 a week. On 4 October 2013, Mr J. Rovas refused her request. On 7 October 2013, Ms Bevilacqua tendered her resignation and left two weeks later.
4. In February 2014, Ms Bevilacqua applied to VCAT under the Equal Opportunity Act 2010 (Vic) (the Act). She claimed TBS, via the actions of Mr J. and Mr E. Rovas, directly and indirectly discriminated against her on the basis her pregnancy, which included severe Morning Sickness[1] and failed to make reasonable adjustments for her as an employee with a disability (morning sickness).
5. Ms Bevilacqua sought significant damages for loss of wages (and related benefits) and for hurt and humiliation.
6. The central issues were whether TBS (through its agents):
   1. Knowing of Ms Bevilacqua's pregnancy, directly and/or indirectly discriminated against, in contravention of:
      1. s 18(b) of the Act, in that TBS constructively dismissed her; and/or
      2. s 18(d) of the Act by subjecting her to detriment;

The allegations of direct discrimination are set out at paragraph 156 below. The allegations of indirect discrimination are set out at paragraph 178.

1. Contravened s 20 of the Act by refusing Ms Bevilacqua's request for a temporary reduction in hours to accommodate her disability, being Morning Sickness.

1. I heard the application over 1 to 4 December and 19 December 2014. Both parties were legally represented.
2. Ms Bevilacqua gave evidence and called as witnesses, Ms Kathy Magliolo (her mother), Ms Grace Magliolo (her aunt), Dr Kaushik, Ms Amy Wood (a former work colleague at TBS) and Mr Bob Ives (forensic psychologist).
3. TBS called Mr J. Rovas, Mr E. Rovas and TBS employees, Mr Mathew McKay, Ms Sarah Muliau and Mr Lou Petrovski.
4. In these reasons I:

1. Set out the relevant legislation; 2. Assess the credibility of the witnesses;

1. Set out my findings of fact, dealing with conflicts in the evidence where required; and

1. Apply the law to the findings to make and decide whether, with reference to the Act, TBS unlawfully discriminated against Ms Bevilacqua.

The Equal Opportunity Act 2010 (Vic) and this proceeding

1. Ms Bevilacqua was an 'employee' of TBS as defined in s 4 of the Act. Here, pregnancy was an 'attribute' for the purpose of s 6(1)(l) of the Act.
2. Section 7 defines discrimination to include direct or indirect discrimination on the basis of an attribute or a contravention of various sections of the Act, including s 20.
3. Section 8 defines direct discrimination to occur if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
4. Under s 8(2) in determining whether a person directly discriminates it is irrelevant
   1. Whether or not that person is aware of the discrimination or considers the treatment to be unfavourable; or
   2. Whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.
5. Section 9 defines indirect discrimination to occur if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute if the imposition is not reasonable.
6. Under s 9(2) the person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.

1. Under s 9, 'reasonableness' depends on all the relevant circumstances of the case, including:

1. The nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice; 2. Whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;

1. The cost of any alternative requirement, condition or practice;

1. The financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice; and 2. Whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.
2. Section 10 says in determining whether or not a person discriminates, the person's motive is irrelevant.
3. Section 18 relevantly says an employer must not discriminate against an employee by dismissing the employee or otherwise terminating his or her employment (18)(1)(b) or by subjecting the employee to any other detriment (18)(1)(d).
4. Section 20 applies to a person with a disability who:
   1. Is offered employment or is an employee; and
   2. Requires adjustments in order to perform the genuine and reasonable requirements of the employment.
5. Where s 20 applies, employers must make reasonable adjustments for an employee with a disability unless the employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made.
6. The word "disability is defined in s 6, as discussed toward the end of these reasons.
7. If s 20 applies, under s 20(2) the employer must make reasonable adjustments, unless the employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made. Section 20(3) says in determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered and sets out factors to be included. Section 20(4) addresses the relevant facts and circumstances which must be considered, in determining whether or not the person or employee could or can adequately perform the genuine and reasonable requirements of the employment.

1. I view Ms Bevilacqua as an honest witness and have accepted her evidence about factual matters, when corroborated.
2. However, I do not regard her recollections as strong enough to persuade, where the weight of evidence is against her. For example, contrary to her views I accept TBS held genuine concerns about her employment performance. I noted Ms Bevilacqua could state a fact with certainty, confirm her evidence in cross-examination and later change her evidence. For example, for quite some time she was adamant TBS did not have a policy that employees were to provide medical certificates for every day of sick leave in the face of strong evidence to the contrary. Later in her evidence she conceded that was the case. Ms Bevilacqua gave strong evidence about fearing she would be dismissed, when there appeared no reasonable basis for such a fear (see paragraphs 166-167). Also, I am doubtful about some of her interpretations of people's motives in saying certain things, confirmed by her mother, describing her as oversensitive to the views and attitudes of others.
3. In a second witness statement, Ms Bevilacqua made various gratuitous accusations against various former colleagues at the store. This was in response to their negative evidence about her. I accept she was defending herself. It has not been necessary to assess the truthfulness of irrelevant 'mudslinging' between her and former colleagues.

1. I view Ms Bevilacqua's mother as giving straightforward truthful evidence.
2. Ms Bevilacqua and her mother lived together. The Store was in their local shopping centre. Her mother regularly dropped by the store or walked past and waved if it was busy. She met Mr E. Rovas many times. Her mother readily conceded the limits to her knowledge, such as she was not aware of her daughter's day to day duties at the Store, relied on her daughter's reporting as to goings on at the Store, did not over-emphasise her interactions with Mr E. Rovas.

1. I view Ms Bevilacqua's aunt as giving straightforward truthful evidence.
2. She described their relationship as more like mother and daughter than an aunt and niece. They saw each other every second day. She also regularly shopped at the shopping centre and would walk past and go in to the Store say hello to Ms Bevilacqua, probably once or twice a week.

1. TBS dismissed Ms Wood following a fraud investigation by TBS with Telstra Fraud into her actions while assistant store manager. The matter was referred to Victoria Police. At the time she gave evidence, she faced allegations concerning theft by fraud of approximately $50,000.[2] Ms Wood says she has no axe to grind with TBS and the charges are part of her being unfairly dismissed due to her pursuing better pay and conditions. Presumably Victoria Police did not accept that explanation.
2. While Ms Wood is presumed innocent of the charges, given the circumstances of her dismissal, I did not regard it as safe to rely on her evidence to corroborate Ms Bevilacqua's evidence, where her evidence is not independently corroborated.

Dr Kaushik, general practitioner, and Mr Ives, forensic psychologist

1. Both witnesses gave dispassionate expert evidence.

1. Mr J. Rovas has many years experience in retail management, including staff management. He had been the managing director of TBS since 2007. He described himself as having a reasonable understanding of the obligations of an employer. Mr Rovas comes across as a reasonable person who deals fairly and reasonably with TBS employees. The fact that the Store is successful and has very low staff turnover tends to confirm that.
2. He gave credible evidence about business operation, policy, etc and about Ms Bevilacqua's general performance as an employee. His evidence about day to day operations was somewhat limited as he spent relatively little time at the Store. That said, he visited twice a week and spoke with his brother by phone daily.

1. Mr E. Rovas was a difficult witness to assess. He presented as a quietly spoken man; proud of his abilities as a store manager which includes creating a family like team atmosphere. However, given evidence such as harsh texts from him to Ms Bevilacqua and her mother's comment that she found it to have a changeable nature from day to day when she visited the Store, I wondered whether I only saw one aspect of Mr Rovas.
2. That said, it is unlikely Mr Rovas' conduct relevant to this proceeding involved routine unfair and/or rude treatment of staff, or of Ms Bevilacqua, again indicated by low staff turnover.
3. I accepted his evidence about his motives in making certain statements in discussing the pregnancy of female staff, rather than accept somewhat far-fetched motives attributed to him by others. I accepted his evidence, when corroborated by the staff, on day to day issues and his treatment of Ms Bevilacqua.
4. However, I have, about some critical events, preferred Ms Bevilacqua's evidence where corroborated by her mother and/or aunt.

1. I rejected submissions, that I should reject the evidence of the three staff members who gave evidence, because, it was submitted, they did not give truthful evidence, given their commitment to the work team and their employment.
2. They struck me as giving truthful evidence, some embarrassing to themselves and unnecessary to repeat here. They each stoutly denied accusations made in cross-examination that either of the Rovas brothers had coached them in their evidence. With no evidence to support those allegations, I accept their denials.
3. That said, I have not in all respects accepted their evidence as accurate. Where other evidence persuasively contradicts one of these witnesses, I have preferred that evidence viewing the witnesses' recollections as inaccurate.

1. I set out my findings, decided on the balance of probabilities bearing in mind the seriousness of the allegation; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The standard is on the balance of probabilities. Ms Bevilacqua bore the onus of proof (save for the reversal of that onus under s 9(2) of the Act concerning indirect discrimination).

Workplace events from January 2011 (when TBS employed Ms Bevilacqua) to late July 2013 (just before she became pregnant)

1. The Store is a Licensed Telstra retail store selling mobile telephones, mobile telephone plans and contracts, internet contracts, accessories and other communications products. The business hours are Monday to Wednesday 9am to 5.30pm, Thursday to Friday 9am to 9pm, Saturday 9am to 5pm and Sunday 10am to 5pm.
2. The Store performed very well, winning Telstra performance awards.
3. TBS employs 13 to 15 staff, with low turnover. On average 70% of the employees at any one time were full-time with the balance employed permanent part time.
4. Full time staff work 38 hours over five days a week on a rotating fortnightly roster, enabling them to take every second weekend off in the context of a seven day a week operation. Most staff were relatively young. Full time shifts vary generally from 6.5 hours to eight hours to make up the fortnightly roster. Specific staff requests for days off such as annual leave are generally accommodated.
5. Part time employees worked between 15 to 22 hours. They tended to be university students, working Thursday and Friday nights and Saturdays and Sundays.
6. TBS does not employ casual staff due to the high level of training required.
7. As Store Manager, Mr E. Rovas encouraged TBS employees to regard themselves as a workplace family, which they did and continue to do. He engaged in informal day to day banter with staff, as illustrated in texts from him to Ms Bevilacqua such as kisses ("Xxxxxx"), "Great day Steph!! Well done:)" and in a familiar context, "OK dearest" and "Watch it Missi Moo!!".[3]
8. Mr E. Rovas had a tendency to click his fingers as part of giving directions, including telling staff to be quiet when he was on the phone with a customer.
9. When not presenting to customers, employees were relaxed with each other. Some employees developed close personal relationships (not inferring sexual relationships). Out of sight of customers, ribald humour was part of the workplace culture. Ms Bevilacqua was a participant in and at times an instigator of such humour. Some staff enjoyed the humour; some tolerated it. Mr E. Rovas participated in this conduct. This proceeding made Mr J. Rovas aware of that aspect of Store culture.
10. In the context of needing to keep the Store staffed, Mr E. Rovas, with Mr J. Rovas' knowledge, was demanding. For example, staff starting at 9am when the Store opened, were expected to arrive at 8.45 but were paid from 9. Staff were expected to attend Tuesday 5.30pm staff meetings/training, unpaid. Staff taking sick leave were required, under a Store protocol,[4] to provide a medical certificate for each day taken. I accept the (disputed) evidence of Ms Bevilacqua and her mother that when Ms Bevilacqua was at a hospital when her brother suffered a stroke, Mr E. Rovas texted her, saying her job was at risk if she did not attend work the next day.
11. I now address operational issues related to alleged indirect discrimination.
12. TBS required staff out front of the store to mostly stand, unless sitting with a customer at a computer doing a transaction. I accepted Mr J. Rovas' evidence that the role of a retail sales consultant necessarily involves a certain amount of time spent standing, in order to serve customers. In the retail industry a sales assistant normally approaches a customer from a standing or walking position, as opposed to from a seated position. However, staff were not expected to stand all day. Apart from sitting with customers and formal breaks such as lunch, staff could go out the back of the store when it was not busy. If necessary a staff member who became ill could sit.[5] I also accept similar evidence from Mr E. Rovas and Store staff. This was not an absolute requirement. As an example, I accept Mr J Rovas' evidence that in the early days of the Store's operations, a staff member Suzy, who was on crutches was permitted to perform the Effective Floor Manager role while sitting.[6]
13. TBS provided staff with reasonable opportunity to take toilet breaks. I accept the evidence from Mr J. Rovas[7], Mr E. Rovas[8], Mr James McKay[9] and Mr Lou Petrovski[10], that reasonable toilet breaks were not an issue. I prefer that to Ms Bevilacqua's evidence that staff were only allowed to take short, infrequent toilet breaks.[11] Staff were expected to inform a senior staff member of where they were going. I address below, Mr E. Rovas' management of Ms Bevilacqua, when she was pregnant and taking longer toilet breaks.
14. TBS did not require all employees to lift boxes. There were any number of staff available to lift the relatively light boxes of shopping bags delivered from time to time through the front door of the Store (there were regular deliveries of stock through the rear delivery door, which were not in issue). When Ms Bevilacqua refused, she was not forced to do so.
15. TBS permitted staff to take sick leave. The evidence is replete with examples of Ms Bevilacqua's sick leave[12] and references to other people taking sick leave. When Ms Bevilacqua exhausted her sick leave she was permitted to use annual leave. Related to that, while TBS required all sick leaves to be supported by medical certificates, there was no evidence that requirement disadvantaged Ms Bevilacqua, because she was pregnant.

1. In January 2011, TBS employed Ms Bevilacqua as a full time sales consultant. She was responsible for serving customers, showing them various products and services offered at the store, assisting customers with service issues and processing sales and contracts.
2. Ms Bevilacqua enjoyed her job, performing reasonably well, earning performance rewards. Text records between Ms Bevilacqua and Mr E. Rovas from August 2012 to October 2013[13] show many day to day negotiations as productive colleagues. There are examples of him praising her such as on 6 June 2013, "Excellent effort ... Thank you so much Steph!!!"
3. However, Ms Bevilacqua's employment record was not without issue.
4. Before her August 2012 pregnancy, Ms Bevilacqua tended to take unexplained absences from the Store (apart from scheduled breaks). I prefer the evidence of Mr E. Rovas[14], Mr J. Rovas[15], Mr McKay[16], Mr Petrovski[17] and Ms Muliau[18] to Ms Bevilacqua's denials. She was not the only staff member to do so, in the context of the Store's flexible attitude to this, which tightened over time.
5. I accept the evidence of Mr J. Rovas[19] and Mr E. Rovas[20], that an issue they had with Ms Bevilacqua was that she would sit in the front of house area at the store when not serving customers (as noted above there is an area at the back of the store where staff can sit and relax if they need to do so). She was resistant to Mr E. Rovas' direction on this. Ms Bevilacqua was not the only staff member to dislike the amount of standing the job required and so sat down more than Mr J. and Mr E. Rovas liked.
6. On 8 August 2011, TBS formally warned and counselled her for not advising Mr E. Rovas that she was unavailable for a shift before it started. On 19 October 2012, TBS warned and counselled her for unauthorised changing details of family friend's account, when the person was not present in the Store.[21] While Ms Bevilacqua was aware a third warning may result in dismissal, she disputed the grounds for the earlier warnings.[22] I make no finding as to the probable result of a third warning (see below), if given after September 2013, given the first warning was for a seemingly minor infraction in mid 2011.
7. During her employment, Ms Bevilacqua requested and was granted substantial sick leave; averaging about a day a fortnight, according to Mr J. Rovas and employment records.[23] One reason for her frequent leave was she suffered very heavy monthly periods, often requiring a day in bed.[24] She also had Polycystic Ovary Syndrome and a thyroid condition. TBS policy was that each day of sick leave must be supported by a medical certificate. Ms Bevilacqua largely complied with that requirement; such that the degree of compliance is not relevant here. (Ms Bevilacqua said she always complied; Mr J. and Mr E. Rovas disagreed.)
8. She also properly took leave to deal with family crises, her father's heart attack in January 2013, her brother's stroke in February 2012 and a family member attempting suicide in April 2013.
9. In early February 2013, Ms Bevilacqua was pregnant and miscarried.
10. By then, Ms Bevilacqua had used all her sick leave and all her annual leave, which had been converted to sick leave and compassionate leave. She discovered this on 11 February 2013, when she asked to be able to take days she had been absent (it appears related to her brother's stroke) as annual leave.[25] She explained it had not been readily apparent from payslips given her varying pay per pay period.
11. In early 2013, Mr E. Rovas and TBS staff became impatient with Ms Bevilacqua's ongoing sick leave. A January 2013 FaceBook page was circulated, said to indicate one day when Ms Bevilacqua took sick leave, she was at the beach. While she denied this saying the post was false (and I make no finding about that) the accusation illustrates the impatience. It is also illustrated when on 5 May 2013, Ms Bevilacqua texted Mr E. Rovas saying a family member had attempted suicide and she was with her at the hospital. Mr E. Rovas replied "OK, Please don't BS me ... As long as it is legitimate Im OK." ... "I promise it's the truth" ... "OK".[26] One does not normally in the context of being told of an attempted suicide raise the possibility that it is not true. Another example was the preparedness of staff to, in September 2013, doubt she pregnant (see below). Given the evidence in this proceeding, it appears the suspicion about her taking unwarranted sick leave was very largely, if not entirely, unfounded.
12. As Mr J. Rovas acknowledged, by the time leading to her resignation, she was "on the outer" with the team, due to them being required to cover for her leave periods.[27]

From August 2013 (when Ms Bevilacqua became pregnant) to early September 2013 (when she told Mr E. Rovas she was pregnant)

1. In early August 2013 Ms Bevilacqua began to feel symptoms which she now attributes to Morning Sickness (migraines, feeling lightheaded, off-balance and nauseous). She did not know she was pregnant. She took further sick days, providing medical certificates.
2. On 4 September she underwent a CT scan to investigate the cause of her migraines. Mr E. Rovas was suspicious of her sick leave. He asked for evidence that she underwent the scan.[28] While she provided a certificate, Mr Rovas was not pleased about her recent attendance record in the context of her long term history.
3. About this time, Ms Bevilacqua first suspected she was pregnant. After using a home pregnancy kit, on 9 September a blood test confirmed she was about 6 weeks pregnant.[29] She told her mother and on about 11 September, Mr E. Rovas.
4. Mr Rovas said words which Ms Bevilacqua heard as, "don't get too excited, remember what happened last time". While Mr Rovas denied saying such words, Ms Bevilacqua's evidence as to what she perceived is corroborated by her mother and aunt's evidence of her, soon after, reporting the conversation to them. However, I accept Mr Rovas' evidence that whatever his precise words, he responded with concern for Ms Bevilacqua's wellbeing. He did not intend to be rude or to cause offence. He was aware that earlier that year, Ms Bevilacqua had miscarried.
5. Related to this, I considered Ms Wood's evidence that Mr E. Rovas had previously made similar disparaging comments to her, when he discovered she was pregnant and said words to the effect of, 'Are you sure you want to do this, are you sure this is the right decision, you'll never work again' or 'are you sure this is what you want ... You can kiss your career with Telstra goodbye." Mr Rovas denied saying she could kiss her career goodbye. He was persuasive in his evidence that, in the context of his then close work relationship with Ms Wood, he asked about her intentions in the context of his understanding of her then relationship issues. Given my doubts about relying on Ms Wood's evidence, I do not accept it. While I wonder at the appropriateness of Mr Rovas' conduct, which was perhaps over-intrusive, I do not draw that conclusion with respect to colleagues working closely in a small work environment.

From when Ms Bevilacqua told Mr E. Rovas she was pregnant to 22 October 2013 (when Ms Bevilacqua's resignation came into effect)

1. To put the events in context, it should be noted that over this 40 day period, Ms Bevilacqua worked approximately 18 days; 12 from 11 September to 7 October, the day she tendered her resignation and six days after that. On the other days she was either on sick leave or on rostered days off. I say approximately, because surprisingly the evidence does not allow me to accurately account workdays, based on sick leave and rostered days off.
2. With reference to the staff rosters and other evidence, I find Ms Bevilacqua:

1. Worked[30] 11, 12, 13, 17, 18, 19, 21 24 and 30 September and 1, 3, 4, 7, 8, 10, 11, 12, 15; 2. Took rostered days off on 14, 22, 23 and 29 September and 5, 6,13, 19/ 20 October; and

1. Took sick leave on 15, 16, 20, 25, 26, 27 and 28 September and 2, 9, 14, 16, 17 and 18 October.
2. While the above may not be precise, it provides an accurate context.
3. From about 11 September, morning sickness caused Ms Bevilacqua to vomit frequently and suffer dizziness, feel faint, experience hot flushes and back, leg and lower stomach pain. She needed to frequently run to the toilet to vomit and to sit down to rest. Her symptoms would often last all day. On this I prefer the evidence of her, her mother and her aunt, in the context of the medical evidence. While some TBS staff give evidence of not being aware of this as a significant issue, the issue was significant enough that Mr E. Rovas agreed to change her work role (see below).
4. On 12 September 2013, Ms Bevilacqua attended Caroline Springs Superclinic. According to medical records, a Dr J. Canillo saw her concerning her pregnancy. The medical record says in part, "Symptomatic with nausea", but records nothing further on the topic.[31]
5. In mid September, Ms Bevilacqua provided TBS with a medical certificate saying she was seven weeks pregnant.
6. Given her morning sickness, TBS agreed she would take the role of Effective Floor Manager (EFM) (greeting customers and directing their queries to areas of the store or members of staff who could help them), rather than it rotating between staff.[32] This would avoid her being with a client in a long transaction and having to rush to the toilet. However, the arrangement presented problems for her. The EFM was generally expected to greet staff from a standing position. If Ms Bevilacqua needed to quickly go to the toilet, she had to quickly give the iPad the EFM used to another staff member. Ms Bevilacqua asked TBS to agree to her performing 'bundling' (a back office job done sitting) as a previous staff member had done when pregnant and working short days. She was told that was part of the Assistant Manager's role. She thought Ms Wood was already too busy.
7. On occasions when she was in the toilet, Ms Bevilacqua would receive a text from Mr E. Rovas, asking where she was and/or when she would return to the store. I prefer Ms Bevilacqua's evidence, corroborated by her mother[33] to that of Mr E. Rovas. I doubt his credibility on this issue. In his witness statement[34] he rejected Ms Bevilacqua's evidence that he texted her while she was in the toilet, expressing annoyance. He said he did not delete text messages, had reviewed them and implied he had found no such texts. However, in cross-examination he conceded his job entails changing the phones he uses and he does not have access to all his text messages from the relevant times. However, I accept this was part of Mr Rovas' general practice of texting staff who, in his view, had been away from the store too long.
8. On 15 and 16 September, Ms Bevilacqua was ill and unable to work. She exchanged the following texts with Mr E. Rovas.[35]

Manny, I'm going back to the doctors. I can't stop throwing up. I'm so sorry but I really can't help it. I feel like shit. I will bring you a cert tomorrow morning.

So you're saying that you can't work again today ??

Stephanie ... As of Friday it will be very busy. I think John and yourself to discuss what is happening. I will tell him this morning"

1. Mr E. Rovas was referring to the Friday 20 September 2013 iPhone launch, which required all hands on deck.
2. About this time Mr E. Rovas told Mr J. Rovas that Ms Bevilacqua was pregnant and was taking sick leave. Due to morning sickness, Ms Bevilacqua was unable to work a long shift on the launch day.
3. On 22 September, she went to Sunshine Hospital Emergency Department. She was diagnosed as suffering Hyperemesis Gravidarum, which according to Dr Kaushik, a general practitioner who saw Ms Bevilacqua twice (see below)[36] is the most severe form of morning sickness, involving pernicious vomiting with the risk of hospitalisation to treat dehydration. She was treated for dehydration and discharged home.[37]
4. On 25 September 2013, Ms Bevilacqua again attended Caroline Springs Superclinic. According to medical records, Dr M. Calic saw her concerning her pregnancy. The medical record says in part, "Hyperemesis Gravidarum", but records nothing further on the topic.[38]
5. While Mr E. Rovas denied it, I am satisfied that on one occasion after Mr E. Rovas knew Ms Bevilacqua was pregnant, when advised she could not work, Mr Rovas texted her words close to ""I'm fucking sick of this" and "You better fucking come in Steph". I prefer the evidence of Ms Bevilacqua, corroborated by her aunt's recollection.[39]
6. At some point in September, Mr E. Rovas asked Ms Bevilacqua to pick up a box of paper bags weighing between 3 and 5Kg (the weight which is disputed is not relevant). Ms Bevilacqua refused, being concerned about her pregnancy in the context of the earlier miscarriage. She had been advised by doctors and understood from already having had a miscarriage that it was dangerous to do strenuous activity and lift heavy things in early pregnancy as it can cause miscarriage.
7. Ms Bevilacqua alleged Mr E. Rovas said "You'll be fine, you're not that far along". He denied making the statement.
8. With Ms Bevilacqua having the onus of proof and no direct corroboration of her evidence,[40] I make no finding Mr E. Rovas made the statement.
9. As September progressed, Ms Bevilacqua perceived Mr E. Rovas to become impatient with and critical of her, giving her "the silent treatment" when she returned from sick leave. This caused her distress and anxiety.
10. I accept at times when Ms Bevilacqua returned from the toilet, Mr E. Rovas was displeased with the length of time she had been gone and indicated this to her. I again prefer Ms Bevilacqua's evidence, corroborated by her mother and her aunt, to that of Mr E. Rovas.
11. I accept Ms Bevilacqua's mother's evidence that by 25 September, Ms Bevilacqua perceived that she was being ill treated by Mr E. Rovas and relationships with the team had deteriorated, because of her absences from work. As recorded in texts that day between them, her mother suggested Ms Bevilacqua ask Centrelink about her benefit entitlements if she left work,[41] which she did. She discovered the financial support would be inadequate. [42] Her mother said this was in case she was dismissed.
12. I also accept her evidence that about this time Ms Bevilacqua would often come home from work and go straight to bed, often appearing upset. She was trying to get 12 hours sleep so that she would be able to work. She told her mother she would go to work in the morning and straight away feel sick because of the morning sickness.
13. I also accept her aunt's evidence that she visited the Store and Ms Bevilacqua saying she had just finished crying in the toilet after Mr E. Rovas refused her request to take a quick break because the Store was too busy, another time visiting the store and Ms Bevilacqua with tears in her eyes asking her to leave, saying she would be yelled at again. Ms Bevilacqua started became depressed and anxious, perceiving she was being bullied at work.
14. I prefer this evidence to that of Mr E. Rovas and Store staff. Concerning the staff, while they may believe all was as normal, clearly all was not. Shortly after Ms Bevilacqua told Mr E. Rovas she was pregnant, she went from a happy staff member to a very unhappy one because of her perception as to how she was being treated.
15. I do not accept, as was submitted, that Ms Bevilacqua suffered extreme physical pain and discomfort, anxiety, humiliation, embarrassment and stress as a result of the requirements of the Respondent that she stand for long periods of time without adequate sitting breaks and bathroom breaks, and as a result of her endeavours to comply with those conditions to avoid disapproval and disparagement. The only evidence cited in support of this was Ms Bevilacqua's mother's evidence, in which she spoke of lesser negative consequences.[43] There is no medical record of Ms Bevilacqua reporting extreme experiences to a general practitioner.
16. From 25 to 28 September, Ms Bevilacqua took sick leave, supported by medical certificates stating she had "a medical condition" and was unfit for work.
17. On 30 September 2013, Ms Bevilacqua texted her mother from work, saying people at work were being cold to her, not speaking to her and she wanted to come home.
18. Also on 30 September 2013, Ms Bevilacqua saw Dr Kaushik at Caroline Springs Superclinic for the first time. Her mother went with her in support.[44] He diagnosed her as suffering simple morning sickness, by which he meant, "vomiting of pregnancy".[45] While she complained of nausea and vomiting,[46] if she was suffering Hyperemesis Gravidarum at the time she would have been continuously vomiting. When he saw her she looked comfortable.
19. Ms Bevilacqua asked if it would be reasonable for her to reduce her working hours to 28 hours a week. He agreed it would, given her earlier miscarriage, her hyperthyroidism (overactive thyroid which can make symptoms worse creating a high risk pregnancy) and the morning sickness (nausea, headaches and vomiting) she was experiencing, which had caused her to have a CT scan on 4 September and to be hospitalised on 22 September, diagnosed with Hyperemesis Gravidarum. He also thought if she worked full time her work efficiency would suffer. He wrote a medical certificate ("the Certificate") dated 30 September 2013.[47]
20. It said (not reproducing the format):

This is to certify that Ms Stephanie Bevilacqua attended for assessment of symptoms as stated to me today and for the period [blank] to [blank] she needs to dcrease [sic] her work hours to 28 hours a week due to her medical condition.

1. Dr Kaushik did not specify the reason for the reduction. Generally he does not record the actual medical condition on a certificate unless asked or it is required by law. He did not specify a time frame. He expected to see Ms Bevilacqua a few days later and estimating a time frame is difficult. That said, he said normally morning sickness ends by the 5th month, less commonly the 6th month of pregnancy. Dr Kaushik did not advise about avoiding lifting at work as he was not asked and was not aware of any such issue. While he advised her about minimising standing, he was not aware of specific Store arrangements.
2. In his report for this proceeding he commented:

In conclusion, Stephanie was suffering from morning sickness which was pregnancy related, migraine, back pain, pain in ankles, feet and lower back as result of pregnancy and possible [sic] some other causes as well. She was unable to cope with above and hence I supported her request to decrease work hours to avoid pregnancy related complications and decreased efficiency and performance at work. However I would have needed to assess it on more occasions and in this report is incomplete.

1. While Dr Kaushik did not recall it, I accepted Ms Kathy Magliolo's evidence that her working five hours a day starting about 10am, as she tended to be sick before, then improve then become unwell as the afternoon progressed, was discussed.[48]
2. On Tuesday, 1 October 2013, Ms Bevilacqua gave the Certificate to Ms Wood. While Mr E. Rovas received it that day he did not discuss it with Ms Bevilacqua. Early in the week of 1 October Mr E. Rovas provided a copy of the Certificate to Mr J. Rovas.[49] Mr J. Rovas assumed in referring to a "medical condition", the Certificate was referring to Ms Bevilacqua's morning sickness.[50]
3. He also assumed she wanted to reduce her hours because of her pregnancy related vomiting or other aspects of being pregnant. However he said this did not lead him to, on the basis that morning sickness is temporary, conclude she was requesting a temporary reduction. He said with Ms Bevilacqua giving no further detail and the Certificate giving no start and end date for the reduced hours, he concluded she was requesting a permanent reduction.[51]
4. On 4 October 2013 Mr E. Rovas asked Ms Bevilacqua to phone Mr J. Rovas. Ms Bevilacqua said Mr E. Rovas said, "Yeah, I need to talk to John, I don't think you can do only 28 hours".
5. That day at 12:43 pm, Ms Bevilacqua texted her mother, "Completely ignored my doctors letter". Her mother replied, "Omg what did u say?" She replied, "I asked him of he got the letter and he Saud yeah but john wants to talk to me cause he doesn't think I can only do 28 hours". Her mother replied, "So what r u going to do?' She replied, "Hand in my resignation and put down that my medical cert was declined".[52]
6. Soon after lunch time, Ms Bevilacqua called Mr J. Rovas. I summarise their evidence.

1. According to Ms Bevilacqua, she said "I'm guessing you already know." He said words to the effect of "Know what?" She thought he was pretending he did not know she was pregnant. When she told him she was pregnant, he responded with words to the effect of "Oh ok", giving no other response. She said, words to the effect of, "I'm not feeling very well, but I'm excited." He said words to the effect of "Don't get too excited, remember what happened last time." She found this rude and hurtful. He was referring to her prior miscarriage. This added to her stress and anxiety and made her feel he was not supportive of her pregnancy.
2. She told him she had been having bad morning sickness with non-stop vomiting, feeling very lightheaded when she went home, worsening migraines and that her doctor had given her the Certificate to reduce her hours to 28 a week.
3. Mr J. Rovas replied, "Steph, I don't think we can do that". She asked him what was she going to do? He replied, "I don't know." She said words to the effect of, "I've got no choice but to resign then". He replied words to the effect of "Pretty much", and the call ended.
4. She had planned to tell him she wanted to work less hours or not such long shifts as usual, until her morning sickness was over or settled down. She had no intention to permanently work part-time. For one thing, she could not afford it. However, she said none of this because of his reaction. She became upset and silent.

1. According to Mr J. Rovas, during the 4 October 2013 call, Ms Bevilacqua first told him directly she was pregnant. He already knew that. He said words to the effect, "make sure you are careful and look after yourself because of the difficulties you had with your last pregnancy", referring to her previous miscarriage and intending to be supportive. She seemed pleased at this point.
2. Ms Bevilacqua said she had been to a doctor who had given her the Certificate. She said she could no longer work a 38 hour week, but did not say this was in connection with her pregnancy or morning sickness or that she was requesting a temporary reduction.
3. Mr J. Rovas had the Certificate. While it recommended a reduction to 28 hours, it did not state it was in connection with her pregnancy and did not record a start or end date. He took it that it was a request for a permanent reduction. He told Ms Bevilacqua that unfortunately, at that point in time, given, as he said, TBS had been advertising for a full time staff member (in the shop window) for four weeks and one full-time staff member was overseas on annual leave, TBS could not agree.
4. He said to Ms Bevilacqua that she was employed on a full time basis and that TBS was a small business not able to reduce her hours.
5. Ms Bevilacqua asked again why TBS could not accommodate her request. He repeated some of the above and added it would be impossible to find someone to just do 10 hours and TBS had never hired someone to just do 10 hours. Also, without notice, TBS would be down those 10 hours for some time, as to train a sales team member up takes 10-20 weeks during which they have minimal contact hours on the floor particularly if they are only working 10 hours per week.
6. Mr J. Rovas said he tried and clarify which 10 hours Ms Bevilacqua was asking to drop (trying to see if it was one day per week or two hours per day). She was not sure. He re-iterated that TBS would be unable to find someone for 10 hours a week and TBS could not grant her request. Mr Rovas understood Ms Bevilacqua accepted the explanation. They amicably ended the conversation.
7. Mr Rovas denied saying anything to the effect that she had no choice but to resign and they did not discuss any form of resignation.
8. He also said he may have been distracted during the conversation, because he had just been told of alleged recent actions by Ms Bevilacqua, which in his view, if she had not resigned, would have resulted in a disciplinary process, which would have led to her dismissal. He did not raise this with her at the time as he needed to make further enquiries. Given her resignation, the issue was not pursued.

1. In cross examination[53] Ms Fitzgerald put it to Mr J. Rovas that she would be submitting TBS failed to make reasonable adjustments by reducing Ms Bevilacqua's hours. In addition to his other evidence, his restatement of the reasons was:
   • He thought she was requesting a permanent reduction in hours;
   • Ms Bevilacqua did not when asked address the issue of how many hours a day she would work, therefore he was dealing with a hypothetical request. He did not agree implicitly her request was to work 28 hours over five days;
   • If hypothetically, she wanted to work 5.5 hours a day, TBS would need to find someone to work two hours a day. This was not feasible. For one thing, it would take an inordinate amount of time for the person to be properly trained; and
   • Ms Bevilacqua was performing a full-time sales role which could not be replaced with a part time sales role, in the context of TBS being a small business, a full-time vacancy at the time and a full-time staff member being on leave.
2. This was in addition to him saying at other points that other reasons were the effect on other staff if they had to cover her reduced hours.
3. Mr J. Rovas said if he had been aware it was a temporary request he would have explored the options. He cited other examples of making such adjustments, including for a current employee who experienced problems late in her pregnancy and was due to give birth in early December.

1. After the call, Ms Bevilacqua went into the toilets and cried. She called her aunt and later told her mother about the conversation. She told them Mr Rovas was not giving her any choice but to resign. She was scared that continuing to work full time might risk a miscarriage. Her mother agreed (that she had no option but to resign) and offered to help financially as much as she could. She hated seeing her daughter stressed and sick.[54] This is in the context that they shared accommodation, rent and food expenses.
2. On the morning of Monday 7 October 2013, Ms Bevilacqua sent Mr J. Rovas a text message to the effect of "my doctor needs a letter explaining why you've declined my medical certificate". He replied, saying "I don't understand why your doctor would need that Steph".
3. At 10:17 am Ms Bevilacqua forwarded the text to her mother. They then spoke by phone. Ms Bevilacqua was upset and crying saying Mr J. Rovas was rejecting the Certificate and her request to reduce her hours without even considering it, and would not provide her with a letter confirming that was what he was doing.
4. Later that day, on 7 October 2013 Ms Bevilacqua handed in her notice of resignation, addressed to Mr J. Rovas:[55]

I would like to resign from my current position as a sales consultant with Telstra to leave as of Tuesday the 22nd of October 2013.

However, in accordance to a medical certificate provided to you on behalf of my doctor from myself, advising you that due to my health I am unable to work full time hours. You have declined on behalf of Telco Business Solutions to accept my medical certificate.

I would like to take this opportunity to say that making this decision has been very difficult, as working for Telstra has been such a positive experience and one for which I am grateful. I have gained many skills, enjoyed working for you and with a fantastic team.

I am conscious of the need to provide support to Telstra until my departure and I shall give my full commitment until then.

I wish yourself and a great team every success in the future and thank you for the opportunities I have been given during my time here.

1. Ms Bevilacqua hoped the positive tone of the letter would cause Mr J. Rovas to reconsider and offer her reduced hours.[56]
2. On the evening of 7 October 2013, Ms Bevilacqua saw Dr Kaushik for the second time. He made no reference in the medical record to morning sickness. He recorded:

The employer refused to decrease hours, patient not happy with it, decided to quit the job, aware of consequences but determined to quit, needs a copy of certificate, feels pains in both legs and swelling at the end of 8 hour shift, very stressed hence happy to quit. [57]

1. While giving evidence, he recalled saying to her that her decision was premature in terms of loss of employment and income. However, she had decided. She said her priority was to ensure a successful pregnancy.[58]
2. By letter dated 10 October 2013, Mr J. Rovas replied:[59]

I was handed your resignation letter by the guys on Tuesday.

I would like to correct one thing in your letter. I did not decline to accept your medical certificate. You provided the certificate dated 30/9/2013 and said in a subsequent telephone conversation with me that you could no longer work the full time 38 hour week. I then advised that the role you were employed to perform was a full time one and unfortunately the business was not in a position to change that to one which was 28 hours per week as the role required was full time.

I wish you all the best with your future endeavours.

1. There were no further negotiations about Ms Bevilacqua's position. She worked some more days and took sick leave on some other days. On 22 October 2013, her employment ended. She was paid her entitlements.
2. According to Mr J. Rovas, once a person writes a resignation letter one does not generally try to dissuade the person from their intention and does not think a resignation letter is written in the hope of being invited to stay. He disagreed with the proposition he was happy to see her go.[60]

1. According to Ms Bevilacqua, after resigning, she was anxious and depressed; worried about having no income to provide for her baby. She continued to experience morning sickness. I accepted her mother's evidence that Ms Bevilacqua was very sad about resigning.[61]
2. On 22 November 2013, Mr J. Rovas received a telephone call from a woman saying she was from a government department asking about the circumstances of Ms Bevilacqua leaving employment. It is likely the woman was a Centrelink employee. The woman said this was related to Ms Bevilacqua's application to receive Centrelink benefits. While being somewhat guarded about providing such information, Mr J. Rovas advised she had resigned from full time employment.[62]
3. Ms Bevilacqua discovered she was ineligible for Newstart Allowance until December, because she had resigned. Centrelink did not accept she had been forced to resign. While her mother supported her as best she could, Ms Bevilacqua went into credit card debt and defaulted on her loans and car loan repayments. The car was eventually repossessed leaving her owing a substantial amount.
4. When she received the allowance in December, her employment agency said she did not have to look for a job immediately and could wait until the morning sickness calmed down. Later in her pregnancy, Centrelink instructed her to see her employment agency. The agency advised as she looked heavily pregnant there was no prospect of her being employed.
5. I accept Ms Bevilacqua's mother's evidence that from what she could see this was a really stressful and difficult time for her daughter. She was still suffering from morning sickness, and seemed very down and anxious about having lost her job and being unemployed, with her first baby on the way. She felt devastated that she could not afford to buy anything to prepare for the baby's arrival. She and her ex-husband, Stephanie's father bought nursery furnishings. Her daughter felt terrible that she could not afford to buy anything herself. She had been financially independent for a number of years and was not used to depending on others for money.
6. Back at the Store, in December 2013, part time 'Employee D' resigned, to be replaced by 'Employee K'. Mr J. Rovas' evidence was that it did not cross his mind to call Ms Bevilacqua because she had resigned.
7. On 16 May 2014, Ms Bevilacqua gave birth to Christian.
8. In September/October 2014, Ms Bevilacqua started looking for work. By late December 2014, she continued to survive on Centrelink benefits, with, as she describes it, no certainty about the future.
9. Christian's father provides some material support in terms of buying baby formula and nappies. She described this as a private arrangement.
10. Ms Bevilacqua says her life has been severely affected by her employment at TBS ending. She experiences ongoing anxiety and depression. A letter dated 3 July 2014 by Dr Valerie Sung, Unsettled Babies Clinic, Royal Children's Hospital refers to Ms Bevilacqua scoring very highly on a Post Natal Depression test; the higher the score, the more severe the depression.[63]
11. I accept the opinion of Mr Isles, Forensic Psychologist, that at October 2014 Ms Bevilacqua developed post stress disorder accompanied by depression and anxiety, "central to the mental and emotional distress Ms Bevilacqua experienced, during and subsequent to the last two months of employment with TBS."
12. He met Ms Bevilacqua twice, during which he interviewed her and administered psychological tests. He had been provided with the particulars of complaint and defence in this proceeding and witness statements of Ms Bevilacqua, her mother and aunt. He was able to obtain limited information from one of the medical clinics Ms Bevilacqua attended.
13. He described Ms Bevilacqua as having lost self-esteem and self-confidence and being pessimistic about the future. In his view she had formerly viewed the world as benign and helpful but now saw it as callous and unjust. She was apprehensive about seeking employment in case dramatic events occurred again. She tends to be suspicious of others. He described her as feeling very bitter because, if she had been allowed to stay in employment and take maternity leave, her personal and financial circumstances would now be very different. She feels she lacks the capacity to be a good mother. She is unable to resolve or "move on from negative feelings of anger, stress, frustration and disappointment resulting from her experience. He described her as experiencing irritability, outbursts of anger and feelings that life has treated her badly. She experiences transient thoughts of suicide.
14. In cross-examination, Mr Isles made it clear that he was not commenting on the truth of the events as Ms Bevilacqua reported them. He did say she responded as if she had experienced trauma.

Did TBS directly discriminate against Ms Bevilacqua? - Yes

1. The question is, with reference to s 8 of the Act, did TBS treat Ms Bevilacqua, a person with an attribute, unfavourably, because of that attribute?
2. Ms Bevilacqua was a person with the attribute of pregnancy. Her pregnancy included her experiencing morning sickness, such that the morning sickness interfered with her work performance.
3. I read the Act as defining Ms Bevilacqua's morning sickness as a "disability" for the purposes of the Act (see below from paragraph 192). Therefore I accept Ms Bevilacqua was also a person with the attribute of disability. However, in discussing direct discrimination the 'addition' of the attribute of disability adds nothing to the discussion, as the morning sickness falls within the pregnancy attribute.
4. The question in dispute is did TBS treat Ms Bevilacqua unfavourably because she was pregnant/disabled?
5. In closing submissions, Ms Bevilacqua made five allegations of direct discrimination, each of which relates to when Ms Bevilacqua's pregnancy was known:[64]

1. Mr J. Rovas' comment about her pregnancy, made on 4 October (Allegation 1); 2. Mr E. Rovas' comment about her pregnancy, made about 11 September (Allegation 2);

1. Mr E. Rovas' comments about sick leave (Allegation 3);

1. Mr E. Rovas' comment about lifting boxes (Allegation 4); and 2. Mr E. Rovas' comments about sitting and taking toilet breaks (Allegation 5).
2. I rejected allegations 1 and 2 and found allegations 3, 4 and 5 proven.

1. I rejected the allegation that Mr J. Rovas on 4 October 2013 subjected Ms Bevilacqua to unfavourable treatment by commenting about her pregnancy (see paragraph 113). With Ms Bevilacqua having the onus of proof and the only evidence being differing evidence from them, there was no basis to prefer her evidence over Mr J. Rovas' evidence that his words were to the effect of advising her to make sure she looked after herself, given her previous miscarriage (see paragraph 117). Having heard evidence from Mr Rovas, I see it unlikely that he would be as callous as Ms Bevilacqua claims. I note there is no evidence that she reported such comments to her mother[65] or aunt.

1. Consistent with my finding at paragraph 74, I rejected the allegation that Mr E. Rovas in early September 2013 subjected Ms Bevilacqua to unfavourable treatment by commenting about her pregnancy.

1. I found TBS, through actions of Mr E. Rovas directly discriminated against Ms Bevilacqua in breach of s 18(1)(d) of the Act:

1. On one occasion in late September 2013, Mr Rovas subjected Ms Bevilacqua to unfavourable treatment when he texted her saying "I'm fucking sick of this" and "You better fucking come in Steph" (see paragraph 89); 2. This caused her detriment being hurt, humiliation and anxiety; and

1. He subjected her to the unfavourable treatment because she was taking leave which was a result of pregnancy/disability.
2. Under s 109 of the Act, TBS must be taken to have contravened the provision. The exception at s 110 was not relevant.
3. In my view, while this conduct led to TBS subjecting Ms Bevilacqua to detriment in breach of s 18(1)(d) of the Act, it did not constitute constructive dismissal of Ms Bevilacqua by way of repudiatory breach or forced resignation. [66] Therefore, TBS did not breach s 18(1)(b) of the Act in terms of I make this comment to clearly respond to broad submissions concerning constructive dismissal made for Ms Bevilacqua.
4. I do not accept there was other such discrimination by way of text messages. Contrary to submissions on Ms Bevilacqua's behalf, the text messages on record between her and Mr Rovas were not out of the ordinary.
5. To place the text messages while Mr E. Rovas knew Ms Bevilacqua was pregnant in the context of her employment, I examined text messages between them from September 2012 to 4 September 2013.[67] They record 15 incidents of Ms Bevilacqua saying she would not be coming to work, mostly due to ill health, a couple for family reasons and one as she was on jury duty. Where Mr Rovas replied (he often did not), the general tenor was calm acceptance, sometimes reminding her to bring a medical certificate. He took (polite) exception on 27 December 2012 when she said she was at the hospital with her mother, on 1 January 2013 (concerning work on 2 January) when he was told she had been at the beach 12 hours earlier (she promptly denied it) and on 4 October about the CT Scan.
6. His reply on 15 September 2013 (see paragraph 84) is of a manager coping with a staff member taking frequent sick leave. It was direct and showed some frustration but was not out of the ordinary. In response to the following six texts from 23 September to 18 October saying she would not be in, he either replied "OK" or did not reply.
7. While I accept Ms Bevilacqua perceived several of Mr Rovas' texts as ill treating her from sometime after mid-September, I do not rely on her perception as accurate. It is striking that after the 15 September exchange of texts concerning her not being available on 15 and 16 September, according to her witness statement;

The tone of Manny's message seemed threatening to me, based on my knowledge of him and his personality. My impression was that I was not allowed to be sick and that if I continued to experience morning sickness, I might lose my job. Manny said in this text message that he would tell John about my pregnancy. I knew that John was aware of it from that time, however I had not spoken to John directly about it. I felt worried about how John would react.

1. This appears to be a significant over-reaction. There is no evidence of any indication that her job was at risk. There have been many instances previously when she had taken sick leave for a variety of issues without incident. Even where there were suspicions, they were not pursued. There appeared to be no basis to think Mr J. Rovas would react negatively to the news of the pregnancy.
2. The evidence does not persuade me Mr E. Rovas, in his treatment of Ms Bevilacqua while she was at work, treated her unfavourably as a result of her taking sick leave due to morning sickness. In the context of the, but for the exception cited above, reasonable text responses by Mr E. Rovas, I do not prefer Ms Bevilacqua's evidence to the contrary evidence.

1. As stated above, Ms Bevilacqua alleges when on one occasion, Mr E. Rovas asked her to lift the box of shopping bags, he said "you'll be fine, you're not that far along". He denied making the statement.
2. With Ms Bevilacqua having the onus of proof and no direct corroboration of her evidence, I make no finding the statement was made.

Mr E. Rovas' comments about sitting and toilet breaks

1. On the basis of Ms Bevilacqua's evidence, corroborated by her mother and aunt I found TBS, through actions of Mr E. Rovas directly discriminated against Ms Bevilacqua in breach of s 18(1)(d) of the Act:

1. Over approximately seven working days after mid September 2013, prior to 4 October 2013, Mr Rovas subjected Ms Bevilacqua to unfavourable treatment related to her taking frequent lengthy toilet breaks (see from paragraph 94); 2. This caused her detriment being hurt, humiliation and anxiety; and

1. He subjected her to the unfavourable treatment because she was taking leave which was a result of pregnancy/disability.
2. Under s 109 of the Act, TBS must be taken to have contravened the provision. The exception at s 110 was not relevant.
3. Again, while misconduct led to TBS subjecting Ms Bevilacqua to detriment in breach of s 18(1)(d) of the Act, I am not satisfied it constituted constructive dismissal of Ms Bevilacqua.
4. Turning to other claimed discrimination, Ms Bevilacqua gave evidence that during the time that she was suffering morning sickness, but before she told Mr E. Rovas she was pregnant, he was impatient with her wanting to sit down and taking longer and more frequent toilet breaks. Given he did not know she was pregnant; his actions at that time cannot amount to discrimination on the basis of pregnancy.
5. The evidence does not persuade me that Mr E. Rovas treated Ms Bevilacqua unfavourably due to pregnancy/disability related to her sitting while working. With her having the onus of proof, I have not preferred her evidence on this to Mr E. Rovas' denials.
6. Concerning Ms Bevilacqua's evidence that Mr Rovas clicked his fingers at her to direct her to stand in an angry/derogatory way, I do not view her perception of the manner in which actions related to her as reliable. Also, if he clicked his fingers at her in an indication she should stand, in the context of long running friction concerning Ms Bevilacqua wishing to sit in the front of the store, I would not be satisfied his action related to her being pregnant/disabled.

Did TBS indirectly discriminate against Ms Bevilacqua? - No

1. The question is, with reference to s 9 of the Act, did TBS impose a requirement, condition or practice that had the effect of disadvantaging Ms Bevilacqua, a person with an attribute (pregnancy/disability) where that requirement, condition or practice was not reasonable?
2. Ms Bevilacqua alleged[68] the requirements, conditions or practices were that TBS employees:

1. Stand at all times during their shifts and only take breaks when there are no customers (Allegations 6 and 9); 2. Pick up and/or move heavy boxes (Allegation 7);

1. Take short and infrequent toilet breaks (Allegation 8);

1. Not take sick leave (Allegation 10); and/or 2. Work a full time 30 hour week (Allegation 11).
2. I address each allegation.

1. I did not accept TBS required staff to stand at all times during their shifts.
2. As said at paragraph 55, TBS did require staff out front of store to mostly stand unless sitting with a customer at a computer doing a transaction. However, staff were not expected to stand all day. Apart from sitting with customers and formal breaks such as lunch, staff could go out the back of the store when it was not busy. If necessary a staff member who became ill could sit or go home.
3. I am not satisfied this was an absolute requirement. TBS varied the requirement for Ms Bevilacqua by assigning her the EFM role. It had previously accommodated a staff member on crutches by having her perform the EFM role from a sitting position. The evidence does not persuade me that, in the short time in question, Ms Bevilacqua made it clear to her employer that performing the EFM role was not sufficiently assisting her.
4. Similarly, I do not accept TBS only permitted staff to take breaks when there were no customers (the submission) or when the store was not busy.

1. I do not accept TBS required all employees to lift heavy boxes, if for some reason they were unwilling to do so. The one request of Ms Bevilacqua does not amount to a requirement. Despite Ms Bevilacqua knowing she should avoid lifting, she made no report to Dr Kaushik of such a requirement. If Mr E. Rovas was insensitive in his response, that also does not amount to a requirement.

1. I do not accept TBS required staff to take short and infrequent toilet breaks. While I accept Mr E. Rovas at times would text absent staff, for whatever reason they were absent, asking when they would return to the Store, the evidence does not satisfy me that established a requirement, condition or practice. To the contrary, the weight of evidence was that taking toilet or other breaks was, within reason, freely permitted.

1. I do not accept TBS did not permit staff to take sick leave. The evidence is replete with examples of Ms Bevilacqua's sick leave and references to other people taking sick leave. When Ms Bevilacqua exhausted her sick leave she was permitted to utilise her annual leave. Related to that, while TBS required all sick leave to be supported by medical certificates, there was no evidence that disadvantaged Ms Bevilacqua because she was pregnant.

1. I rejected the submission that Mr J. Rovas refusing Ms Bevilacqua's request to reduce her working hours per week from full time to 28 hours, without considering the nature of the request or how to reasonably accommodate it, provides an evidentiary basis to conclude that full time staff must work full time hours regardless of any need for adjustments to their hours to accommodate a medical condition or temporary disability.
2. That evidence before me concerns one request by one employee at one time. A pattern of such requests and such refusals would be required to prove the requirement.

Did TBS as the employer fail to make reasonable adjustments which were required for Ms Bevilacqua, an employee with a disability? - No

1. Where s 20 applies, employers must make reasonable adjustments for an employee with a disability unless the employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made.
2. Ms Bevilacqua submitted TBS breached s 20 of the Act by failing to make the following reasonable adjustments:[69]

1. Changes to the general allowance for bathroom and sitting breaks (Breaks Adjustment); 2. Allowing Ms Bevilacqua to sit while working; (Sitting Adjustment); and/or

1. A reduction in hours (Hours adjustment).
2. Section 20 applies to a person with a disability who:
   1. is offered employment or is an employee; and
   2. requires adjustments in order to perform the genuine and reasonable requirements of the employment.

Was Ms Bevilacqua a person with a disability? - yes

1. In ordinary life a pregnant woman suffering morning sickness is not considered to be a person with a disability.
2. However, in my view morning sickness may constitute a "disability", as defined by the Act, which in s 3 defines "disability" is defined to mean:

1. Total or partial loss of a bodily function; 2. The presence in the body of organisms that may cause disease; or

1. Total or partial loss of a part of the body; or

1. Malfunction of a part of the body, including: 1. a mental or psychological disease or disorder; 2. a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder; or 2. Malformation or disfigurement of a part of the body.
2. Speaking generally, it is clear from Dr Kaushik's evidence about the nature of morning sickness and from the evidence of the symptoms of morning sickness Ms Bevilacqua experienced, that morning sickness may involve the malfunction of a part of the body.
3. He accepted the diagnoses of 22 and 25 September that she was then suffering Hypermesis Gravidarum and spoke of its most serious disruption of normal function.
4. In his opinion on 30 September and 7 October, Ms Bevilacqua's morning sickness and pregnancy was causing, "morning sickness which was pregnancy related, migraine, back pain, pain in ankles, feet and lower back." He noted it was possible there were other causes as well. However, having only seen her twice, it was premature to reach a conclusion on that point.
5. I am satisfied such symptoms involve functions of the body failing to function properly and so constitute a "disability" as defined by the Act.
6. That is consistent with interpreting "disability" as defined by s 3 such that an interpretation is adopted which:
   1. Promotes the purpose or object underlying the Act in conformity with s 35(a) of the Interpretation of Legislation Act 1984 (Vic). Those objects include facilitating the progressive realisation of equality, as far as reasonably practicable, by recognising that the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures; and
   2. Interprets the Act, which is remedial legislation, in that it gives benefits to persons and thereby remedies injustice, such that the interpretation is favourable to those who benefit from the legislation.[70] Pregnant employees are clearly intended as beneficiaries of the Act.
7. I prefer the above interpretation to the contrary interpretation that morning sickness as a natural part of pregnancy does not involve malfunction, such that it is part of the body functioning normally during pregnancy.
8. Turning to Ms Bevilacqua's situation, I am satisfied she suffered Hypermesis Gravidarum in September 2013. I am not satisfied she suffered that condition when she saw Dr Kaushik. That was not his diagnosis on 30 September or 7 October 2013. He diagnosed 'simple morning sickness'.

1. I am not satisfied TBS failed to make any adjustment which was required.
2. The alleged failure by TBS to make these adjustments relates to about 12 days on which she was able to work from 11 September when she advised TBS she was pregnant to 7 October when she tendered her resignation and perhaps to the about six days she worked from then until she resigned.
3. Soon after TBS learnt she was pregnant an accommodation was attempted with her performing the EFM role. Due to morning sickness, her working days were punctuated by sick leave.
4. I agree with Senior Member Megay's decision in Muller v Toll Transport Pty Ltd (2) (Human Rights) [2014] VCAT 472:

The concept of "reasonable adjustment" does not mean an employer must simply comply with an employee's demands. It surely must be a product of proper consultation by parties armed with appropriate (in this case) medical information and advice and appropriate knowledge of the genuine and reasonable requirements of the particular job. That much is clear from s.20 (3) (a), (b) and (c) of the Act. It is not for the respondent to work out what is required in an information vacuum. There must be some initiative from the worker. The comprehensive requirements of s. 20(3) make it clear considerable information is required in determining reasonability - "all relevant facts and circumstances" must be considered. That obviously requires a proper understanding of the requirements of an employee (in this case a courier driver) having regard to the nature and specifications of his employment and having regard to the nature and difficulties of his disability. And the latter is what is missing from this case. (para 74)

1. In my view, events over the short period in question had not unfolded to the point where a further reasonable adjustment could be known following proper consultation by parties armed with appropriate medical information and advice and appropriate knowledge of the genuine and reasonable requirements of the particular job.

1. Here, the first question was whether Ms Bevilacqua as a person with a disability required an adjustment to her working hours (reduced to 28) in order to perform the genuine and reasonable requirements of the employment.
2. Here, "required" must mean the adjustment is required to cater for the disability. Once disability is established, if an adjustment is found to be "required" the employee must make reasonable adjustments. Whether or not an adjustment is "required" is a serious issue.
3. The Macquarie Dictionary, 4th Edition, most relevantly defines "require" as "to have need of". Another definition, "to wish to have: to require room service" is not preferable in this context.
4. When Ms Bevilacqua discussed her request with Mr J. Rovas, he knew she was pregnant and assumed she sought reduced hours because she was suffering morning sickness. He had a copy of the Certificate which said:

This is to certify that Ms Stephanie Bevilacqua attended for assessment of symptoms as stated to me today and for the period [blank] to [blank] she needs to decrease her work hours to 28 hours a week due to her medical condition. (my emphasis)

1. Therefore, he had medical advice that she needed (required) her working hours reduced in order to perform the genuine and reasonable requirements of the employment. He refused to reduce her hours.
2. However, with the benefit of evidence as to subsequent events and Dr Kaushik's evidence in this proceeding, I was not satisfied that, viewed objectively, Ms Bevilacqua as a person with disability required an adjustment to her working hours (reduced to 28) in order to perform the genuine and reasonable requirements of the employment.
3. While on 30 September 2013, Dr Kaushik agreed with Ms Bevilacqua's suggestion that she work reduced hours, this was not a case of a doctor saying to a patient, 'you need to reduce your work hours'. While he regarded the reduction as reasonable and described it as "needed" in the certificate, in fact he did not view it as "required" at the time in question. On 7 October 2013, having been told TBS had refused her request and she had that day handed in her letter of resignation, he advised her not to resign, seeing her decision as premature. If he had thought working reduced hours to protect the pregnancy was required he would not have taken that position.
4. Despite his advice to her, Ms Bevilacqua proceeded with her resignation. Dr Kaushik described her as "happy to resign". She did not attempt to retract her resignation.
5. In that context, Ms Bevilacqua cannot successfully claim the adjustment was required when she had medical advice that the reduction, although a reasonable idea, was not required.
6. While it may have been that if she had retracted her resignation, she may have faced allegations of misconduct (see paragraph 124), of which she was apparently not aware, that is not relevant to whether the hours adjustment was needed.
7. Therefore, s 20 did not apply to Ms Bevilacqua and did not oblige TBS to reduce hours as a reasonable adjustment under that section.
8. I will not explore issues which would have been relevant if s 20 applied.

1. Ms Fitzgerald submitted VCAT should make a declaration that TBS unlawfully discriminated against Ms Bevilacqua. While it is appropriate to make such declarations in some cases, here I do not see utility in doing so.

1. Ms Fitzgerald for Ms Bevilacqua provided comprehensive submissions as to appropriate compensation. However, the submissions were based on Ms Bevilacqua's application largely succeeding, which it has not.
2. In those circumstances, it is appropriate to provide a short period for any supplementary submissions on her behalf and an opportunity to provide submissions in reply.
3. Unless a party seeks further hearing concerning remedies I will decide that issue, without further hearing.

[1] Also referred to as Hyperemesis Gravidarum.

[3] Record of Mr Rovas' text messages, Exhibit 2.

[4] J. Rovas cross examination, 4 December; 10:44. (NOTE: references giving date and time of evidence are taken from the audio recording of the hearing recorded by VCAT. The time referred to is wrong by an hour as the VCAT audio recording system appears not to have been adjusted for Daylight Savings.)

[5] See J Rovas witness statement, Tribunal Book, page 181-182.

[15] Tribunal Book, page 184 and including cross-examination on 3 December at 14:35.

[19] Cross examination, 4 December, 10:21.

[20] Corroborated by Ms Muliau, Tribunal Book, page 177, Mr Petrovski, Tribunal Book, page 170.

[21] Documented warnings at Tribunal Book, pages 224 & 225.

[22] Supplementary witness statement, Tribunal Book, page 130.

[23] In note a sick leave record summonsed from TBS, when properly interpreted does not disprove that proposition.

[24] I accept her mother's evidence on this.

[25] Exhibit 1- text 11 February 2013: 9:43 am.

[27] Cross-examination, 4 December 2014; 11:06 and re-examination at 11:55.

[28] See text Rovas to Bevilacqua, Tribunal Book, page 50.

[29] Medical certificate dated 18 September 2013 states that day Ms Bevilacqua was about seven weeks pregnant (Tribunal Book, page 66).

[30] Including days when she worked short hours because sick.

[31] Caroline Springs Superclinic, summonsed records under "Progress Notes (Descending Order)".

[32] See E. Rovas, Tribunal Book, page 221.

[36] Giving evidence on 1 December 2014.

[37] Letter from hospital, Tribunal Book, page 80 and texts with mother, Tribunal Book, page 110.

[38] Caroline Springs Superclinic, summonsed records under "Progress Notes (Descending Order)"

[39] Tribunal Book, page 40 (Ms Bevilacqua) and 123 (G Magliolo).

[40] Ms Wood gave general evidence about Mr E. Rovas making a joke of the refusal.

[43] Applicant's Outline of Submissions, para 15.

[44] During these months she sought medical treatment at Medical One Clinic during working hours, Caroline Springs After Hours Clinic and another clinic if she became concerned about the babies non-movement and wanted a heartbeat check, the latter clinic being an alternative to attending hospital outpatients.

[45] Evidence in chief, 1 December 2014, 13:03.

[46] Dr Kaushik's recollection giving evidence.

[48] Giving evidence on 2 December 2014.

[49] Mr J. Rovas, cross examination, 4 September 2014, 11:17.

[50] Mr J. Rovas, cross examination, 4 September 2014, 11:17.

[51] Mr J. Rovas, cross examination, 4 September 2014, 11:21.

[52] Text message, Tribunal Book, page 118.

[54] Evidence given on 2 December 2014.

[57] Caroline Springs Super Clinic medical records, 7 October 2013.

[60] Mr J. Rovas, cross examination, 4 September 2014, 11:30.

[61] Giving evidence on 2 December 2014.

[62] See Exhibit Q, file note by Mr J. Rovas.

[64] Applicant's Outline of Submission, para 124 and oral submissions on 19 December.

[65] Tribunal Book, page 94, paragraph 31.

[66] See Applicant's Outline of submission from paragraph 87.

[68] Applicant's Outline of Submission, para 157 and oral submissions on 19 December.

[69] Applicant's Outline of Submission, paragraph 194.

[70] See Statutory Interpretation in Australia, 8th Ed, Pearce and Geddes, LexisNexis Butterworths 2014 at page 358.