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‘Your bum has blown out’

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“Yup, you are having a boy because your bum has blown out”.

“…a woman’s IQ halves when she falls pregnant”.

“Do you really want to come back to work?”

They’re not exactly words any woman – pregnant or not – wants to hear, particularly not from a work colleague or, worse still, from their boss. But they’re words that Antonia Thornton, a former state manager and executive director at JBWere, was allegedly subject to from her male supervisor.

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Thornton is suing NAB, JBWere’s owner, in the Federal Court for $4.3 million in compensation for what she claims was discrimination based on her sex, pregnancy and decision to take maternity leave. The mother of two alleges that she was undermined by male colleagues who attempted to steal her clients and failed to credit her work and was harassed on the basis of her pregnancies and maternity leave.

The basis of Thornton’s claim is that she was forced to resign from the financial advisory firm in July this year due to ongoing discrimination during and after her pregnancy and maternity leave.

NAB denies the allegations and a spokesperson said the company will “vigorously defend the matter”. On Tuesday Justice Geoffrey Flick referred the matter to mediation but warned JBWere: “There is a significant public interest in this case,” and that it’s “not a matter you can just buy your way out of”.

Toni Thornton

Toni Thornton. Photo: southbankcorporation.com.au/

Predictably the case, which will return to the Federal Court in November, has already attracted considerable attention. Workplace discrimination claims like this always do. The combination of a large sum of compensation being sought, lurid allegations of sexual harassment and the David and Goliath-type power struggle between a single employee taking on a corporate giant, proves to be compelling.

Suing anyone for anything is not for the faint-hearted but suing a large company for sexual harassment or discrimination is particularly fraught. The claimants in these cases are almost invariably framed as vexatious.

Kirsty Fraser-Kirk, the publicist who sued David Jones and its then-CEO Mark McInnes for $37 million is a case in point. That case settled out of court and it prompted McInnes to resign due to “behaving in a manner unbecoming of a chief executive”. Even still Fraser-Kirk was demonised and afterwards she relocated to Singapore to start afresh whilst seven months later McInnes was appointed chief executive of another large business.

There is no doubt that vexatious litigants exist. Before any charge or allegation levelled at a person or a company is substantiated it must be subject to a court’s due rigour and process. That is absolutely right.

Accordingly there is no point in determining JBWere’s guilt or innocence in this matter before the court does. But, equally, Thornton’s claim shouldn’t be arbitrarily dismissed either. JBWere and its employees are entitled to have judgement reserved on them until the court makes a finding and Thornton deserves no less.

Given the alarming figures that have emerged over the past 12 months about pregnancy discrimination in Australia a claim like Thornton’s deserves to be considered. We know pregnancy discrimination happens in our workplaces; it’s rife. The fact very women actually bring cases because of it doesn’t make the claims of those who do, any less cogent. In fact, the opposite might well be true.

Aside from the media spectacle a court case is likely to spark, the cost of litigation is exorbitant and is not limited to money. It’s hard to believe it’s a path anyone would choose to pursue without foundation. Almost as hard as it is to believe that any educated man would comment that a female’s IQ drops after she falls pregnant, to his own pregnant female employee.

Georgina Dent is associate editor of Women’s Agenda, journalist and former lawyer. This article was first published on Women’s Agenda.

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