The Fair Work Act 2009 (Cth) sets out a number of general protections for employees against employers taking adverse action against them. As an example, section 351 says that an employer must not take adverse action against an employee because of, among other things, the employee’s family and carer responsibilities or pregnancy. In a decision published last year, the Federal Magistrates Court (as it was known at the time) was asked to decide whether an employer had breached section 351 by terminating the employment of an employee who was pregnant at the time despite the employer claiming that wasn’t the reason for the termination.
The short facts were as follows.
In late 2008, the employee was employed at a child care centre as a contact director. Not long afterwards, the employee was moved into the position of main director.
About 12 months elapsed before, in late 2009, two key events occurred.
The first event was that the employee told her employer that she did not have anyone to look after her children in the upcoming school holidays and asked her employer to allow her to bring her children to work with her. That request was refused and she was advised that she would have to take leave without pay.
The second event was that the employee informed her employer that she was pregnant and would need to take maternity leave in mid-2010.
When the employee returned to work at the beginning of 2010, her employer informed her that her role had changed and that she was designated as staff relief float. Her employment conditions were changed from full time to casual which meant that she would not be paid sick or holiday entitlements.
The employee filed an application in the Federal Magistrates Court claiming that her employer had taken adverse action against her because:
(a) she became pregnant and advised her employer of the fact;
(b) she needed time away from work to care for her children in the Christmas school holidays; and
(c) as a result of either one or both of the above, her employment status was changed from full time to casual.
There was no issue that the employee’s employment had been terminated but the employer claimed that the employee had refused to return to work. The employer also alleged that there were performance based issues that led to the employee’s employment status being changed.
The court rejected the employer’s argument and found in favour of the employee. The court ordered the employer to pay to the employee the sum of $8,956.61 for monetary loss as well as a penalty of $5,500. In the decision, Federal Magistrate Jarrett said:
“The remarkable feature of [the employer’s] case, however, was [the] evidence that most of the allegations made against [the employee] about poor performance, poor interpersonal skills, lack of leadership and failure to attend accreditation were never taken up with [the employee] in any meaningful way at all. She was never given the opportunity to properly respond.”
The case reassures employees that their rights in the workplace will be protected under the Act and also acts as an important reminder to employers that their conduct will be closely examined in these circumstances and failure to take any reasonable steps to address alleged performance issues prior to terminating or adversely changing someone’s employment will likely be held against them.
The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.
