Cocks Macnish & Anor v Biundo

[2004] WASCA 194

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Equal Opportunity
2. › Discrimination
3. › Pregnancy discrimination
4. › Whether discrimination on ground of pregnancy requires complainant to be pregnant at time of discriminatory act
5. › Whether characteristic appertaining to pregnant persons includes taking extended leave
6. › Equal Opportunity Act 1984 (WA), s 10(1)(a)(i), s 10(1)(a)(ii), s 10(1)(a)(iii)
1. Equal Opportunity
2. › Practice and procedure
3. › Dismissal of complaint as misconceived or lacking in substance
4. › Test to be applied on pre-hearing application
5. › Whether complainant has no arguable case in fact or law
6. › Onus on applicant respondent
7. › Equal Opportunity Act 1984 (WA), s 125(1)
1. Equal Opportunity
2. › Discrimination
3. › Employment
4. › Inference of discrimination
5. › Whether objective facts sufficient to support inference of discrimination on grounds of sex or pregnancy
6. › Equal Opportunity Act 1984 (WA), ss 8, 10, 11(2)(c), 11(2)(d)
1. Appeal
2. › Equal opportunity
3. › Appeal on question of law
4. › Whether Tribunal erred in law in refusing to dismiss complaint
5. › Equal Opportunity Act 1984 (WA), s 134(1)

Quick Take

The test for dismissal of a complaint under s 125(1) of the Equal Opportunity Act 1984 (WA) as misconceived or lacking in substance is whether the applicant respondent has shown the complainant has no arguable case in fact or law; the onus lies on the applicant respondent. While 'pregnancy' in s 10(1)(a)(i) requires an existing pregnancy at the time of the discriminatory act, a woman who is no longer pregnant may establish pregnancy discrimination under s 10(1)(a)(ii) or (iii) by showing the discriminatory treatment was on the ground of a characteristic appertaining to or imputed to pregnant persons, such as the need to take extended leave before and after delivery.