Pregnant ANZ Employee Claims Bank Disciplining Her For Failing To Undergo Pelvic Exam
Monday 11 August 2014 @ 11.09 a.m. | Industrial Law | Legal Research
Last week the Sydney Morning Herald reported that a pregnant ANZ employee, Ms Katherine Bashour, has appeared in the Federal Circuit Court seeking an injunction to prevent the bank from firing her. She is claiming that she has been threatened with the disciplinary action because she did not attend a pelvic examination by a company-appointed gynaecologist, as her personal doctor had “advised her to stay at home due to a dangerously low red blood cell count”.
According to the report, Ms Bashour says she has been subject to ongoing discrimination that worsened once she filed a complaint in the Federal Court, including being overlooked for promotions and being denied more flexible working arrangements.
According to the Sydney Morning Herald, lawyers for ANZ denied that Ms Bashour was in danger of being fired, but did confirm that she is currently subject to
“a disciplinary procedure under the bank's policy ... it relates to her conduct some time ago where [she] was not on parental leave and she was still at work ... and had been directed to undergo an independent medical examination.”.
ANZ said this medical examination would not have involved a pelvic exam, stating that:
“The primary purpose of the independent consultation with Ms Bashour was to assess the appropriateness of the support measures offered by ANZ to help Ms Bashour work safely from both the office and from home…”
SmartCompany reports that employment lawyer Peter Vitale believes that the case likely involves other issues that are not yet public:
“It strikes me as unusual that an organisation with sophisticated human resources management like ANZ would take a step like that without a very good reason…”
He told SmartCompany that “female employees have the right to take unpaid special maternity leave early if they provide four weeks’ notice of a pregnancy-related illness”, but that “it appears as though ANZ had reason to believe the medical evidence Bashour had provided was not sufficient.”
Ms Bashour reportedly did provide ANZ with obstetrician reports and blood test results before she took early maternity leave. He said there was precedent for requiring employees to attend medical assessments with a company selected doctor where an employer needs to get a better idea of what kind of duties the employee may perform (Grant v BHP Coal Pty Ltd [2014] FWC 1712), but added:
“I must stress though, there is no legislative provision for this, it’s a matter of common law and essentially based on the employees duties under the contact of employment.”
However, Greg McConville, from the Financial Services Union, told Daily Life:
“[i]t’s difficult to imagine that there would be legitimate reasons for an employer to ask a pregnant woman to undergo a medical examination.”
He told the website that medical examinations “are only meant to be used to assess risks at work”, and that it was not clear that Ms Bashour was at work.
ANZ provided an undertaking to the Court that it would not take any action until the matters are heard in November in the Federal Court. Ms Bashour says she is due in four weeks.
Last year, the Fair Work Ombudsman said that pregnancy discrimination was now the leading cause of discrimination complaint in Australian workplaces, having overtaken discrimination due to physical or mental disabilities.
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