Resources: Blogs

One for my baby, and one more for the road

Blogs
|

Drive through bottle shop attendant dismissed because of pregnancy

A bottle shop attendant in Cairns was recently awarded compensation in excess of $39,000 after she was dismissed for being pregnant.

A bottle shop attendant in Cairns was recently awarded compensation in excess of $39,000 after she was dismissed for being pregnant (Leutton v Sheralee Hotels Pty Ltd Trading As Imperial Tavern & Ors [2019] FCCA 2471).

The employee was working in the drive through bottle shop of a tavern when she was informed by her doctor that, because of her pregnancy, she should not lift more than 5kg.

Following her visit to her doctor, the employee attended a meeting with the tavern’s bar manager and bottle shop manager. At the meeting, the employee advised the managers of her lifting restrictions and provided them with a medical certificate.

The employee requested “no safe job leave” (an entitlement under Fair Work Act 2009 (Cth) (FW Act)). One of the managers responded, “We don’t do paid leave.”

The employee asked whether she would have a job after her parental leave, and the response she received was that they would see if there was a job available then.

The employee also suggested that she could work behind the bar of the tavern (knowing that positions were being advertised) as this would not involve her lifting heavy items as her work in bottle shop required. One of the managers told her that it was a “bad look” for a pregnant woman to work behind the bar.

In short, the managers would not permit the employee to work behind the bar or take “no safe job leave”, and her employment was terminated.

The employer later issued the employee with a separation certificate which stated that the reason for “separation” was, “Due to pregnancy [the employee] is unable to continue with her position as [a] bottle shop attendant.”

The employee commenced proceedings against the employer and the two managers in the Federal Circuit Court of Australia.

She argued that her employer and the managers had taken adverse action against her because she had exercised or proposed to exercise her right to take unpaid no safe job leave and, had exercised or proposed to exercise her right to be transferred to a safe job during the risk period of her pregnancy.

The employee further claimed that she was discriminated against because of her pregnancy.

Despite the employer and the managers being aware of the proceedings against them, they failed to present any defence to the Court or to appear at all. The Court interpreted their failure to appear as a waiver of their right to be heard.

Accordingly, the Court accepted the unchallenged evidence of the employee and she was awarded compensation for lost wages and lost superannuation as well as compensation for hurt and humiliation. The Court also ordered that the employer and the managers pay a $10,000 penalty for their contraventions of the FW Act, and that the penalty be paid directly to the employee.

Lessons for employers

Pregnant employees have important protections under the FW Act, including protection from adverse action and discrimination.

Specifically, as touched on in this case, pregnant employees are entitled to:

  • return to their jobs after parental leave (this is known as the “return to the work guarantee”);
  • transfer to a safe job (where a safe job is available) if it is inadvisable for the employee to continue in their usual position for a stated period during their pregnancy; and
  • take “no safe job leave” where there is no appropriate safe job available.

Taking adverse action against an employee because they are pregnant or because they exercise one of the workplace rights listed above is a contravention of the FW Act and can result in significant penalties for employers and any other individuals involved, such as managers.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

Employee’s exaggerated complaints created psychosocial risk

False alarm

Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks arise from psychosocial hazards including conflict or poor workplace relationships.

Read more...

Commission finds swearing in workplace constituted sexual harassment and warranted summary dismissal

R-E-S-P-E-C-T

With the new Respect@Work amendments now in place, employers should be mindful of a recent decision handed down by the Fair Work Commission where it upheld the dismissal of an employee on the basis that swearing at a colleague constituted sexual harassment.

Read more...

Secure Jobs, Better Pay: 6 June 2023 - key changes for employers on this date

The passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) has resulted in several significant changes to the Fair Work Act 2009 (Cth). With some of these changes already in force, employers must now turn their minds to 6 June 2023 – the date of which the next wave of amendments will take effect.

Read more...

Commission confirms inappropriate touching constituted sexual harassment warranting summary dismissal

‘Scuse you

Sexual harassment in the workplace has been the subject of significant reform over the past few years, with an even greater onus on employers now to take proactive measures to minimise or eliminate the risk of sexual harassment in connection with work.

Read more...

Employers delay sinks bid for injunctive relief

Speak now

When seeking to enforce a restraint, it is important that employers seek to enforce the restraint in a timely manner to prevent future or an ongoing breach. Any delay will be considered by the courts when assessing whether it is reasonable to enforce the restraint.

Read more...

Two-year post-employment restraint on hairdresser found to be unreasonable

Splitting hairs

When it comes to drafting post-employment restraints in employment contracts, it is important for employers to consider the purpose of the restraint and whether or not the restraint reasonably serves that purpose.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.