Dismissed Pregnant Employee Wins Adverse Action Claims

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Dismissed Pregnant Employee Wins Adverse Action Claims

A female employee, made redundant on the eve of commencing parental leave, has won significant damages in a recent FWC decision. The Applicant was employed in the position of Receptionist/Accounts on a full-time basis. The Applicant commenced employment with the Respondent in September 2008 and alleges that adverse action was taken against her when she was dismissed on 30 November 2018 in contravention of the general protections provisions in Part 3 – 1 of the Fair Work Act.

The Applicant, Mrs. On Ni Lu, alleged that the Respondent took adverse action against her within the meaning in s. 342(1)(a) of the Act by dismissing her from employment:

1. Because she had exercised one or more workplace rights; and/or

2. Because of her pregnancy or physical disability (gestational diabetes).

In the alternative, the Applicant claimed that the Respondent took adverse action against her by threatening to alter her position to her prejudice by dismissing her from a full-time position and offering her casual employment prior to her seeking medical attention relating to her pregnancy.

It was not in dispute that at the time the Applicant’s employment ended, she was pregnant and suffering from gestational diabetes. Prior to her employment ending, the Applicant raised issues in relation to her entitlement to take sick leave to attend pre-arranged medical appointments relating to her pregnancy and her associated medical condition. The Applicant also asserts that the Respondent’s Directors and Managers knew that she was pregnant and that she intended to take maternity leave. The Applicant had also raised previous issues concerning her leave and award entitlements.

The employer’s primary defences were based on arguments that they had suffered significant economic losses and needed to reduce staff levels, and that they had several concerns with the Applicant’s performance of her duties. However, both claims were not accepted by Vice President Asbury based upon the evidence and testimony provided at the hearing.

The VP’s determination in the matter was unequivocal, “I am satisfied on the basis of the evidence before me, that at the time the Applicant’s employment ended, she had workplace rights which she had exercised or proposed to exercise. Specifically, the Applicant had a right to paid personal leave and had sought to exercise that right for the purposes of attending pre-arranged medical appointments with respect to treatment for pregnancy-related gestational diabetes. The Applicant had sought to exercise the right to take paid personal leave for this purpose by completing a form which the Respondent used for leave applications including for sick leave. The information included on that form was that the Applicant had been diagnosed with gestational diabetes-related to her pregnancy and had been advised to seek medical attention and that she had a medical appointment on 1 November 2019”.

Evidence provided from the Applicant’s treating psychiatrist was that the employer’s behaviour towards her, up to and including her termination, contributed to her suffering from postnatal depression. The VP’s decision resulted in the employer being required to pay in excess of $50,000, including a significant amount of $15,000 for non-economic loss.

Mrs. O vs Compuworld Pty Ltd (C2019/2083) 22 May 2020

For queries about parental leave or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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