An ANZ Bank employee has told a court she was threatened with disciplinary action after she refused to undergo a pelvic examination by an ANZ-chosen gynaecologist.
Fairfax reports Katherine Bashour launched a pregnancy discrimination case against ANZ in February, alleging the bank had purposefully overlooked her for promotions and denied her more flexible working arrangements.
Bashour, who had worked with the bank for five years, has since alleged ANZ demanded she take an internal pelvic exam last month, following her request to go on maternity leave early because of complications with her pregnancy.
Bashour says she provided ANZ with medical reports and blood test results from her personal obstetrician when making her case for early maternity leave, but was asked to take an examination with an approved doctor to satisfy the bank of her condition.
She said she was unable to attend the exam because her doctors had advised her to stay at home as she had a dangerously low red blood cell count, and was then told by ANZ she would face disciplinary action for failing to comply.
However, ANZ said in a statement issued to SmartCompany the bank “did not at any time request or require Ms Bashour to undertake a pelvic examination” as part of an assessment of her working arrangements.
“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,” said ANZ.
“These measures included an offer by ANZ of a free onsite car park and a desk with a permanently allocated meeting room to ensure Ms Bashour did not have to travel around the building unnecessarily for meetings.”
Bashour appeared at the Federal Circuit Court yesterday, seeking an urgent injunction to stop the bank from terminating her employment.
“There has been a string of this sort of discrimination since I filed a complaint in the Federal Court in February,” Bashour said, according to Fairfax.
“I have been a top performer at work, recommended for promotions, I mentor graduates … so facing these unfounded claims of disciplinary action is insulting. It’s quite extraordinary … this is just to punish me.”
According to Fairfax, ANZ lawyers told the court on Thursday the case “was not at the point where the employee is going to be terminated”.
“[Ms Bashour] is 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,” the lawyers said.
Employment lawyer Peter Vitale told SmartCompany the unusual case, which is still before the courts, appeared to involve “other issues” yet to be made 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,” says Vitale.
He says it appears as though ANZ had reason to believe the medical evidence Bashour had provided was not sufficient.
Vitale also says it is highly unusual for an employee to go to court seeking an injunction to prevent termination of employment.
“I would suggest there are other issues at play in this case,” he says.
Vitale says female employees have the right to take unpaid special maternity leave early if they provide four weeks’ notice of a pregnancy-related illness. This early leave does not interfere with the 12 months of leave the employee is entitled to.
He says the case also raises the issue of making staff visit a company-picked doctor.
Vitale says in circumstances where there is reason for an employer to not be satisfied with the amount of detail in medical evidence – usually because an illness is referred to in generic terms – the employer has a right to get a better idea of exactly what is preventing the employee from performing their normal duties.
“It can be reasonable for an employer to direct an employee to undergo a medical examination with a chosen doctor,” Vitale says, particularly if there are occupational health and safety issues to take into account.
“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,” says Vitale.
