The Case

Ayra v Kone Elevators Pty Ltd & Anor (2020)

Kone Elevators Pty Ltd (Kone) employed Mrs Ayra as a credit controller. In May 2018, Mrs Ayra fell pregnant. She later suffered a miscarriage. Mrs Ayra claimed she had told her manager she was pregnant and then, later, of her hopes to fall pregnant again.

Mrs Ayra alleged that after becoming pregnant she was treated differently and less favourably. She claimed her manager yelled at her, treated her badly, and told her she was not career-focused and there was no reason for her to stay employed. Mrs Ayra claimed her performance was criticised, and she was told she could resign or be placed on a 3-week performance improvement plan.

Mrs Ayra lodged a complaint of bullying and harassment against her manager. Kone investigated and made a finding that the complaint was unsubstantiated. Mrs Ayra then lodged a complaint in the Australian Human Rights Commission (AHRC).

Mrs Ayra later resigned from her employment, claiming the reason she resigned was workplace discrimination. She commenced proceedings in the Federal Circuit Court, claiming her manager and Kone had discriminated against her on the grounds of pregnancy and potential pregnancy. The manager and Kone denied the claims, stating they were not aware of the pregnancy or potential pregnancy.

The Verdict

The Federal Circuit Court found Kone and the manager did not know about the pregnancy or potential pregnancy, because:

• medical evidence showed Mrs Ayra’s pregnancy was not confirmed at the relevant time;
• Mrs Ayra gave evidence she would not disclose a pregnancy for the first 12 weeks due to cultural reasons;
• the manager and Mrs Ayra did not have a close personal relationship; and
• when Mrs Ayra took personal leave after her miscarriage, she did not notify her manager or Kone it was because of the miscarriage.

The Federal Circuit Court found that the meeting about Mrs Ayra’s performance was purely about her performance, and not about her pregnancy or potential pregnancy. Mrs Ayra had been sent an email after the meeting that confirmed a verbal warning had been given during the meeting and that she was being placed on a performance improvement plan.

Ultimately, the Federal Circuit Court held that the manager could not have discriminated against Mrs Ayra because they did not know that Mrs Ayra was pregnant or potentially pregnant. As such, Kone could not be held vicariously liable, as discrimination had not occurred.

The Lessons

This case demonstrates the importance of:

• accurately recording what occurs when meeting with employees;
• having witnesses present at disciplinary meetings; and
• sending confirmation emails to employees to confirm what has occurred during a disciplinary meeting.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.