The recent Fair Work Commission decision of Morgan v Heritage Motels and Restaurants has reiterated how important it is for employers to understand their workplace law obligations when dealing with pregnant employees.
Key Facts
The employee:
- was a full-time manager at a motel
- was 8 months pregnant
- after taking sick leave, (for which she had a Doctor’s certificate) called her employer to notify them when she would be returning to work
The employer:
- told the employee, on the phone, that “[t]his 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”
- knew that the employee intended to continue to perform her role for another four months, before she would take annual leave and then parental leave
- told the employee they were being dismissed because they were pregnant
- had never made any adverse comments or reports about the employee’s performance prior to her dismissal
Held
The Fair Work Commission held that the employee was unfairly dismissed. The employee was awarded $6,101.30 as compensation.
Reasoning
The Fair Work Commission found:
- the employee was protected from unfair dismissal under section 382 of the Fair Work Act, as she had completed the minimum employment period and her annual rate of earnings was less than the high income threshold
- the employee was unfairly dismissed under section 385 of the Fair Work Act, as:
a) she was dismissed
b) the employer did not comply with the Small Business Fair Dismissal Code
c) the dismissal was not a genuine redundancy
d) the dismissal was harsh, unjust and unreasonable
e) there were no valid reasons for the dismissal related to the employee’s conduct or capacity
- reinstatement would not be an appropriate remedy (as the employer no longer operated the motel)
- that an order for compensation would be the appropriate remedy for the employee
Tips for Employers
This decision of the Fair Work Commission highlights the need for employers to:
- ensure they don’t make assumptions about the capacity to work of a pregnant employee
- train staff in how to correctly dismiss an employee without breaching the employee’s rights
- introduce polices within the workplace which aim to reduce the risk of wrongly or unfairly terminating the employment of an employee
- if in doubt, seek advice from an employment lawyer regarding your workplace law obligations under the Fair Work Act
Decision
To read the full decision of the Fair Work Commission click here.(link is external)
Questions/Assistance
If you have any questions in relation to this article or workplace law matters generally or if you need advice from an immigration lawyer in Sydney, please feel free to speak with or email one of our specialist workplace lawyers on (02) 9635 7966 or info@matthewsfolbigg.com.au
DISCLAIMER: This article is provided to clients and readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as definitive or complete statement of the relevant workplace law.
