27/03/2017
A claim of Discrimination
To protect the identify of the company they will be referred to as XYZ Pty Ltd
In August 2015, the FWO alleges that while the employee was on parental leave, XYZ Pty Ltd rejected her request to return to work with flexible working arrangements and advised her in writing that she could return to full-time duties in April 2016.
In March 2016, the employee fell pregnant for a second time and advised XYZ Pty Ltd that even though her status had changed, it was still her intention to return to work in April.
But the company told her it was extending her unpaid leave until after the birth of her second child, even though it is alleged that the employee told XYZ Pty Ltd she had not requested an extension of unpaid leave. Subsequently, she informed the company that, on advice she had received, she was within her rights to return to work in April 2016, as originally agreed.
Mr Joe Bloggs and XYZ Pty Ltd allegedly denied the existence of any agreement and instead raised allegations of performance issues. They then asked her to obtain a medical certificate as to her fitness to return to work.
It is alleged that after the employee provided a medical certificate in July 2016, she was asked to attend a meeting by XYZ Pty Ltd where she was presented with a resignation letter that XYZ Pty Ltd management had pre-prepared. She was asked to sign it.
It is alleged the Letter of Resignation, which the employee signed, amounted to a constructive dismissal of the employee.
The FWO says the conduct of Mr Joe Bloggs and XYZ Pty Ltd in denying the employee’s lawful right to return to work and constructively dismissing her contravened the National Employment Standards (NES) and the pregnancy discrimination and workplace rights provisions of the Fair Work Act.
Watchdog pursues company
Fair Work Ombudsman Natalie James said the agency initiated proceedings as the allegations were particularly serious.
“Under the Fair Work Act, it is unlawful to discriminate against employees on the grounds of pregnancy, race, colour, s*x, s*xual preference, age, physical or mental disability, marital status, family or carer responsibilities, religion, political opinion, national extraction or social origin.
Under the Fair Work Act employees have a lawful right to return to work following a period of parental leave.
Discriminatory behaviour can include dismissing an employee, threatening to dismiss an employee, reducing an employee's hours, denying training and promotion opportunities or refusing to employ, promote or train an employee.
Penalties sought
The Fair Work Ombudsman is seeking penalties against XYZ Pty Ltd and Mr Rao for alleged contraventions of workplace laws, as well as a Court Order requiring them to pay compensation to the employee for economic and non-economic loss.
Mr Joe Bloggs faces penalties of up to $10,800 per contravention and the company faces penalties of up to $54,000 per contravention.
The FWO has secured penalties against a number of employers for contravening the pregnancy discrimination provisions of the Fair Work Act, including one payment of more than $50,000 against operators of a chain of Victorian discount retail stores.
Are you fully versed in your legal obligations to pregnant employees? The Employment Law Practical Handbook has a whole chapter dedicated to this subject, to ensure you don’t make a potentially costly mistake around this often misunderstood topic.
For instance, when an employee is pregnant, check that you:
• inform the employee of her rights;
• consult the employee about changes to her employment;
• manage the health and safety risks to the employee and the unborn child;
• enable the employee to transfer to a safe job or to take no safe job leave, if necessary;
• allow the employee to take leave for pregnancy-related illness; and
• ensure the employee is free from discrimination.
Any questions call Mina 0466246955
