Tribunal found Southern Restaurants imposed unreasonable conditions on a young breast-feeding mother leading to a finding of discrimination

Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2025] ACAT 3 

Summary  

A young breastfeeding mother was found to have been discriminated against by her employer and awarded $90,000 in compensation. Southern Restaurants, which owns and operates KFC outlets nationwide, failed to provide flexible working arrangement to accommodate the woman’s breastfeeding responsibilities.  

Facts 

The applicant was a new mother in her early twenties who had been a long-term employee of a KFC store in the ACT. Southern Restaurants is the largest private KFC franchisor in Australia, employing around 6,000 staff.  

In September 2021, following a period of parental leave, the applicant began discussing her request for flexible work arrangements to accommodate her breastfeeding and parental responsibilities and allow her to return to her position as manager in the KFC Tuggeranong store.  

Following this request the applicant attended a meeting with the area manager and another restaurant manager, both older men. The men asked her detailed questions about what was involved in breastfeeding and expressing milk, required her to provide details about maintaining her milk supply and suggested she ask other mothers employed by the respondent how they managed their breastfeeding responsibilities. The applicant gave evidence that she felt humiliated and undermined by their questions. 

She made a formal written request to her employer on 26 October 2021 under section 65 of the Fair Work Act 2009 (Cth) that she be provided with a private room to express, a refrigerator to store expressed milk, time to express and facilities to wash and store equipment. Alternatively, if these adjustments could not be provided, she suggested she be allowed to attend a nearby mall with parenting room facilities. Her requests were denied. 

In early November 2021, the applicant made a non-dismissal termination complaint to the Fair Work Commission. Around this time, she also began experiencing panic attacks and difficulty sleeping and sought the assistance of her GP. On 11 November 2021 the respondent offered the applicant some adjustments, suggesting she move to casual, part time employment in a demoted, non-management position. On 11 February 2022 the applicant filed a discrimination complaint with the Human Rights Commission of the ACT.  

On 7 March 2022, the applicant returned to work following an agreement that she would be provided a pop-up camping tent and fold out chair to express milk in the store room. When these were provided however, due to the cramped space and lack of privacy, these arrangements worsened the applicant’s anxiety.  

On 25 March 2022 the applicant again returned to work however there were no arrangements in place to allow her to express milk while she was the sole manager on site and she was not permitted to leave the premises to do so. In April 2022, the applicant began seeing a psychologist for management of her condition.  

Between 25 March 2022 and November 2022, no adjustments were made, leading the applicant to resign from her position in November 2022 and file an application in the ACT Civil and Administrative Tribunal.  

Decision  

On 25 September 2023, following a full hearing, the Tribunal found that the respondent had discriminated against the applicant by imposing an unreasonable condition of employment upon her, being that she remain on the premises at all times during her shift, including during unpaid breaks, and that this disadvantaged her because she was breastfeeding. The Tribunal also found that the conditions imposed for breastfeeding were not suitable and had caused ‘embarrassment and discomfort’ which disadvantaged the applicant.  

Quantum of damages  

In December 2024 the Tribunal considered the question of an appropriate remedy. The applicant made a claim for humiliation, distress and loss of enjoyment of life, noting she was a vulnerable mother at the time of the conduct.   

The Tribunal accepted that the applicant had no pre-existing injuries and that her employment was a significant contributing factor to her diagnosis of adjustment disorder, with mixed anxiety and depressed mood. 

In considering an appropriate award of damages the Tribunal considered the following:  

The fact the discrimination took place in a workplace environment where there is a notable power imbalance between employee and employer and a person’s economic reality will often mean they have no choice but to continue working for an employer who has discriminated against them and caused them harm.  

That the applicant was spoken to about her breastfeeding by two mature aged males who asked her invasive questions 

That one proposed solution was to provide her with a camping toilet tent located inside the storeroom without a door. She was expected to assemble the tent herself on each occasion she wished to express and all employees had access to the storeroom. 

It was suggested to her that she should give up her permanent management position to become a casual employee.  

That the applicant had lost out on the opportunity to enjoy adjusting to life as a new mother but instead was forced to engage in a ‘continuous battle’ to achieve flexible arrangements with her employer.  

That the conduct continued after the applicant had made formal complaints, meaning the employer had been put on notice that it was discriminating against the applicant, causing her injury.  

The Tribunal noted that, though there have been few similar cases in the ACT, this should not be a barrier to making a significant award in the matter and instead considered other cases involving gendered workplace discrimination, including sexual harassment, and serious and sustained acts of discrimination.  

The Tribunal considered the 2014 sexual harassment case of Richardson in which a general damages award of $18,000 was found to be manifestly inadequate and substituted for an award of $100,000 to reflect prevailing community standards.  

Considering awards made in other cases, as well as the impact of the conduct upon the applicant, the prolonged nature of the discrimination and the consequences for her career, the Tribunal concluded an award of $80,000 in general damages was appropriate, as well as $10,000 for treatment of her psychiatric conditions.   

In addition, the Tribunal made orders requiring the respondent review its policies and procedures for breastfeeding employees within six months, as well as introduce anti-discrimination training for all levels of management.  

This case summary was written by Kali Wischmann at Wotton Kearney