News 24 September 2019

Penalties against employer for dismissing on the grounds of pregnancy

The Federal Circuit Court of Australia (the “Court”) has awarded nearly $30,000 of compensation plus $10,000 in fines for a successful adverse action claim lodged when the worker was dismissed “due to pregnancy”.

Overview of the Facts

The worker was employed by the sports bar as a ‘bottle shop attendant’ for over 2 years at the time of dismissal. The worker’s role involved lifting and moving items including unloading trucks. After notifying the business of the pregnancy, she attended a medical appointment and produced a medical certificate which advised against lifting items weighing in excess of five kilograms.

Upon receipt of the medical certificate, the business met with the worker to discuss her position, clearly noting that it was “not fair” that the business could no longer instruct her to unload the van. The worker answered that she would like to go on “unpaid, no safe job leave” to which the business replied “we don’t do paid leave” even though the worker had not sought paid leave. The applicant queried if she would still have a job when she got back from maternity leave, to which the business replied ‘if there was a position available’. The applicant then suggested she could work in the bar section as she held the necessary certificates and the business was advertising externally for the role. The business rejected this request as they deemed it a “bad look” for pregnant women to work behind a bar. The employment of the worker ended with the business providing a signed separation certificate stating the reason for the separation was pregnancy. The worker challenged the grounds on which her employment ended by filing a general protections claim.

The Decision

The Court found this to be a clear case of discrimination and the business to have breached a number of provisions under the Fair Work Act 2009 (the “Act”). Similarly the respondent did not answer any of the allegations made against them.

In determining the appropriate amount of compensation, the Court considered the length of time she would have remained in the role and the hurt and humiliation experienced. The Court also awarded fines against the business for the breaches to the Act.

Lessons/Learning

This case highlights the importance of understanding the minimum entitlements for Australian employees including relevant legislative principles. Had the respondents called the Victorian Chamber of Commerce and Industry’s Workplace Relations Advice Line, the advisors would have explained the risk of a general protections claim and the rights employees have as a minimum under the National Employment Standards.

How we can assist

Complete Members have unlimited access to the Advice Line as part of their membership and the Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

  • Award interpretation, classification and minimum entitlements
  • Disciplinary processes, performance management and termination
  • Personal illness and injury
  • Parental leave and flexible working arrangements
  • Redundancy
  • Occupational Health and Safety and WorkCover.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.

Written by Swendy Hoang, Graduate Workplace Relations Advice Line Advisor 

[2019] FCCA 2471

MCC Contact

Get in touch with the Melbourne Chamber of Commerce

03 8662 5214

members@melbournechamber.org.au

 

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