No diplomatic immunity from the Fair Work Act – breastfeeding mother wins general protections case against foreign embassy

The Federal Circuit Court has found that the UAE Ministry of Foreign Affairs in Melbourne breached the Fair Work Act 2009 (Cth) () (FW Act) after denying an employee unpaid parental leave, refusing her request for flexible work hours, and failing to provide facilities for her to express breastmilk.

The breaches engaged both the general protections provisions and the National Employment Standards, with the employee awarded $73,000 in (economic and non-economic) damages and $100,000 in pecuniary penalties.

This decision illustrates how seriously courts will treat employers who respond inflexibly (or even punitively) to employees exercising their rights around parental leave and flexible work and serves as a timely reminder that these obligations apply to all employers operating in Australia.

Ms Tatiana Duarte was employed as a full-time basis waiter by the Melbourne Consulate of the United Arab Emirates (the Employer) from 2 July 2018 until 1 November 2021. The Court noted that a foreign state is not immune from proceedings concerning employment under an employment contract ‘that was made in Australia or was to be performed wholly or partly in Australia.’

In April 2020, Ms Duarte fell pregnant and she informed the Consul General, Dr Al Mulla.

Ms Duarte later requested 14 weeks of paid maternity leave, which was refused by Dr Al Mulla, who instead directed her to commence leave a month earlier. Following this period of leave, Ms Duarte requested 20 weeks of unpaid parental leave, which was denied by Dr Al Mulla.

On 20 May 2021, Dr Al Mulla demanded that Ms Duarte return to work the following day, but she could not because she was unable to organise childcare at such short notice. When Ms Duarte did return to work, no facilities for Ms Duarte to express and store breastmilk were provided. Ms Duarte had no choice but to express breastmilk in a storeroom and store it in a suitcase filled with ice for the duration of her day.

Soon after, Ms Duarte requested flexible working hours. Dr Al Mulla refused this and subsequently sent an email unilaterally altering her working hours. Ms Duarte then received an email from the Employer advising that her salary was being reduced due to her revised working hours.

On 29 October 2021, Ms Duarte was informed that her position was being made redundant, and that there were no available alternative roles, and her employment was terminated on 1 November 2021.

Ms Duarte claimed in the Federal Circuit and Family Court of Australia that:

• the conduct of the Employer was adverse action in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) because she was exercising workplace rights, and to prevent her from exercising future workplace rights;
• the Employer also took adverse action because of her sex and breastfeeding obligations, which was discriminatory in contravention of s 351 of the FW Act;
• by refusing her request for unpaid parental leave, the Employer was in breach of s 70 and consequently s 44 of the FW Act; and
• by reason of the contraventions of the FW Act, she suffered loss and damage, hurt and humiliation, anxiety and depression.

Ms Duarte sought default judgment in circumstances where the Employer failed to file a Defence.

The Court was satisfied that Ms Duarte exercised workplace rights on eight separate occasions, that the Employer took adverse action and engaged in discriminatory conduct as alleged, and that the Employer breached s 70 of the FW Act by refusing the request for unpaid parental leave, thereby contravening s 44 of the FW Act.

When assessing hurt and humiliation, the Court considered that Ms Duarte was treated very poorly by the Employer. There was also evidence of psychological harm and injury caused by that behaviour, which was uncontested. Importantly, Judge Corbett said that the ‘humiliation of breastfeeding in a storeroom and storing milk in a suitcase is obvious, so too the stress caused by irregular and uncertain work hours when trying to care for an infant.’

The Court ordered compensation of around $48,000 for economic loss suffered and $25,000 for non-economic loss.

In relation to penalty, the Court has a broad discretion to assess the appropriate amount. When considering the well established factors, the Court had particular regard to:

• the fact that the conduct was serious and the alleged conduct regarding breastfeeding and seeking flexible working arrangements was unacceptable;
• the degree of power the Employer had, as evidenced by its position as a Ministry of a foreign state with diplomatic rights and responsibilities as compared to a hospitality worker and mother of a recently born child;
• the deliberateness of the contraventions and the period over which they extended. The conduct of Dr Al Mulla appeared to have been intentional and calculated to frustrate Ms Duarte or induce her to resign;
• the seniority of the person who engaged in the conduct, which in this case was Dr Al Mulla who was the head of the consular mission; and
• there was no evidence that the organisation had a culture conducive to compliance with the FW Act (for example, educational or training programs).

Additionally, the Court had regard to the fact that the activities of the Employer in Melbourne have been wound up, and it closed in August 2022. Nevertheless, the Employer was responsible for Dr Al Mulla’s conduct, which was contrary to Australian workplace laws and the minimum expectations and standards of conduct required in an Australian employment relationship.

The Employer was also ordered to pay Ms Duarte a pecuniary penalty pursuant to ss 546(1) and (3) of the FW Act, in the amount of $100,000.

Overall, Ms Duarte was awarded approximately $173,000, reflecting the seriousness of the Employer’s intentional conduct.

The Court also ordered that the Employer pay Ms Duarte’s legal costs due to the Employer’s lack of involvement or effort to defend the application, in consideration of the complexity of the issues, and the steps Ms Duarte was required to take to substantiate her allegations.

Given the significant number of breaches, this case is a topical reminder for employers in relation to various obligations under the FW Act.

Employers need to be mindful that they are not acting “reactively” in response to an application for parental leave or flexible work arrangements. Rather, it is important that employers' decision-making processes can demonstrate that decisions were made genuinely and in accordance with the National Employment Standards.

A request for flexible work arrangements or an extension of unpaid parental leave can only be refused on reasonable business grounds with documented reasons. Employers should ensure that managers and supervisors who receive parental leave or flexible work requests are appropriately trained on their legal obligations and understand the correct procedures for assessing and responding to such requests.

Employers should also maintain clear policies and procedures that set out how requests will be handled, including timeframes for responding, who is responsible for making decisions, and what factors will be considered.

While an employer may have their own view about what constitutes reasonable business grounds, employers must be mindful that the legal threshold for establishing reasonable business grounds is high. The FW Act sets out specific matters that may constitute reasonable business grounds for refusing requests. Adopting an inflexible approach to the types of flexible working arrangements that are grounded on what suits the employer without any demonstrated consultation with the employee carries a real risk of contravening the law.

Beyond mere compliance with legal obligations, employers should foster a workplace culture that genuinely supports employees who are pregnant, on parental leave, or returning to work after having a child. This includes providing appropriate facilities for employees who are breastfeeding, being receptive to reasonable requests for flexibility, and ensuring that employees are not disadvantaged or treated unfavourably because of their parental responsibilities.

This article was co-authored by Aneisha Bishop, a Lawyer in our Melbourne office.

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation.

For more insights from the Kingston Reid team on the workplace law issues facing organisations in 2026, head to our Publications page to access our 2026 Workplace Insights report.

Photo by Nathan Dumlao on Unsplash