There are a range of laws in Australia that protect people who are pregnant from discrimination and most employers are aware that pregnancy related discrimination in the workplace is unlawful. However, assumptions about the capacity of pregnant employees are often made without proper expert advice and unfortunately we are still seeing employers unlawfully act against the interests of pregnant employees.
There are a range of laws in Australia that protect people who are pregnant from discrimination and most employers are aware that pregnancy related discrimination in the workplace is unlawful. However, assumptions about the capacity of pregnant employees are often made without proper expert advice and unfortunately we are still seeing employers unlawfully act against the interests of pregnant employees.
In a recent decision, the Fair Work Commission (FWC) considered whether the pregnancy of an employee was a valid reason for dismissal from a job that the employer did not consider appropriate for a pregnant person.
In Morgan v Heritage Motels and Restaurants [2016] FWC 4842 a pregnant motel manager was dismissed by her employer over the phone after she called him to provide an update about her progress and return to work following sick leave.
In the lead up to her dismissal, the employee had suffered from nausea, muscle aches and had collapsed at work after her back muscles seized up. She subsequently took sick leave to recover and called her employer to discuss her return to work date. During that phone call the employer told the employee, “This isn’t a job for a pregnant person. I would hate for you to have a miscarriage here so I think you should finish up.”
The employee protested and said that she had several months of work left before she intended to take maternity leave to which the employer responded that he wanted her to finish up. The employee asked if he was firing her because she was pregnant, to which he answered “Yep.”
In reaching a conclusion about whether a dismissal is unfair, the FWC must be satisfied that the dismissal was harsh, unjust or unreasonable, including an assessment of whether there was a valid reason for the dismissal related to the employee’s conduct or capacity. A valid reason must be one that is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.
Unsurprisingly, the FWC found that the employee’s pregnancy was not a valid reason for her dismissal and that there were significant procedural deficiencies in the way the employee was dismissed.
The FWC held that the employee was unfairly dismissed and it awarded her compensation.
This case demonstrates that some employers continue to make assumptions about the work capacity of pregnant employees without proper advice. Employers should always avoid treating pregnant employees less favourable to non-pregnant employees, and in particular should not dismiss an employee because they are pregnant.
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