Dismissals while pregnant or taking parental leave? Part 1

Can an employee be dismissed while pregnant or taking parental leave? Part 1

The Federal Circuit Court has held that an employer took unlawful adverse action against a pregnant employee when, for reasons which were intended to be in the interests of the employee, it brought forward notice of the redundancy of her job so that her employment was terminated before a number of other redundancies were communicated to other employees.

“Notwithstanding that I have found that there was a business case for the redundancy of the Applicant, it was a redundancy that should have been made on 12 November 2015. Such a date would have enabled the policy of the Respondent company to have been put into effect. There is no evidence that the policy was not put into effect in respect of the other 7 redundant employees.

There are a number of other consequences for the Applicant because of the date of her redundancy was brought forward. This meant that the Applicant has not had the benefit of the safeguards of the redundancy policy of the Respondent company. More importantly, it meant that she could not rely upon the protection of s.84 of the FW Act.

These consequences amount to the Respondent company “altering the position of the Applicant to the Applicant’s prejudice” as such is defined in s.342 of the FW Act.”

The judge’s reference to sec 84 of the Fair Work Act is a reference to the Act’s “Return to work guarantee’ which provides for an employee entitled to unpaid parental leave that

“On ending unpaid parental leave, an employee is entitled to return to:

(a) the employee’s pre-parental leave position; or

(b) if that position no longer exists—an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.”

The judge reasoned that the advancement of the redundancy had the effect of disentitling he employee to the benefits of the return to work guarantee since she would not still be employed “on ending her unpaid parental leave” and because the hastening of the redundancy denied the employee the benefits of a policy which the employer had in place which provided a “very generous” entitlement to paid leave on top of un-paid statutory parental leave.

The second policy is the paid parental leave policy. This policy is to fit in with the provisions of the FW Act regarding maternity leave and paid parental leave. This policy is designed to complement the paid parental scheme of the Federal Government. Whereas the government paid parental scheme offers 18 weeks leave at the minimum wage, the BOC policy provides for up to 21 weeks paid leave for any employee who takes parental leave to be the primary carer of the child.

To be eligible for such leave, a person must have been with the company for 12 months, have made an application for the government scheme and undertake not to engage in any paid work during the paid parental leave period.

What this meant for the Applicant was that, if such leave was granted, she would receive her full salary for the period of 21 weeks including the superannuation component. Obviously, this is a very generous scheme.”

Having determined that the employee had suffered adverse action as a consequence of the employer’s actions, the judge then turned to whether the reasons for the taking of it by the employer were unlawful.

The judge firstly determined that the employer had not breached the anti-discrimination provisions of the Fair Work Act because

“I do not find that this decision as to timing was made because Mr Newnham was discriminating against the Applicant; in fact, he was doing his best (as incompetent as it may seem in hindsight) to ensure that the Applicant was treated well.

Therefore I do not find that there has been any breach of s.351 of the FW Act.”

However the judge did conclude that the adverse action was unlawful and his reasoning was that

“Mr Newnham was quite frank about why this adverse action occurred. It occurred because the Applicant was pregnant, had applied (and been granted) maternity leave and therefore was exercising a workplace right.

Therefore there has been a breach of s.340 of the FW Act…….I find that the Applicant was made redundant not because of a prohibited reason but I find that the date of her redundancy was brought forward because of a prohibited reason.’

Power v BOC Ltd & Ors [2017] FCCA 1868

And see Power v BOC Pty Ltd (No 2) (2017) FCCA 23 delivered 3 October 2017 per Vasta J


A comment

Sec 351 of the Fair Work Act provides that it is unlawful for an employer to take adverse action against an employee or prospective employee of the employer because of, inter alia, the employee’s family or carer’s responsibilities or pregnancy, along with several other grounds which most Australian will recognize as standards against discrimination The section is headed “Discrimination” although that word does not appear in the opening sub-section and is only found in the second subsection which deals with exemptions.

The various anti-discrimination laws of the Commonwealth and States deal with, natural enough, the concept of discrimination, that is to say the taking of action against one person with a particular characteristic (for example age) which is different to the action taken against another person who does not have that characteristic. Thus in discrimination cases the role of the hypothetical “comparator” looms large, that is to say the identification of a person or group of persons who does or do not have the relevant characteristic so that the test can be applied whether one person or group has been discriminated against.

That does appear to be the role of sec 351. Although it is headed “Discrimination” no element of a contravention of the section involves an analysis of whether one person or group has been treated differently than another. All that is required is to determine whether (a) adverse action has been taken and (b) whether the reason was a prohibited reason.

Accordingly, Judge Vasta was not required to conduct an analysis whether the employee in the Power case had been treated different than other employees and thus it was that the judge could merely focus on whether or not she had been treated adversely (yes) because she was pregnant.