Unlawful discrimination when pregnant employee dismissed

Excerpt from this article first published in Human Resources Magazine, Issue 157 - 22 July 2008.

The Western Australian State Administrative Tribunal (“the Tribunal”) has recently found that an employer unlawfully discriminated against a pregnant employee when it dismissed the employee for alleged poor performance and excessive sick leave shortly before the employee would have been eligible for 12 months unpaid maternity leave.

The Tribunal found that the company required the employee to train a new employee to take over her job. This took place six weeks after the employee informed the Company that she was pregnant. After the employee became pregnant she used up all of her sick leave entitlements and, by agreement with the company, commenced using her annual leave entitlements when she became ill.

The company then informed the employee that it was monitoring the employee's phone and internet usage and alleged that she had been using both for personal reasons, complained about the employee's late arrivals to work and then disciplined the employee over these issues. The employee claimed that any personal usage was not excessive and that when she was late to work she would make the time up at the end of the day. The company then issued the employee with a formal warning relating to her late arrivals at work and personal use of the company’s phone and internet. Shortly after the formal warning the employee injured herself and took further sick leave. After the employee returned from the period of further sick leave the Company terminated her for unsatisfactory work performance. The reason recorded by the company for the termination was ""Work performance - behind in workload. Reliability of attendance"".

The Tribunal determined that the company did not genuinely consider that the employee's performance was so unsatisfactory as to warrant her termination. The Tribunal found that the HR Manager viewed her as a ""troublesome employee"" and that the real reason for her termination was the amount of sick leave taken once she was pregnant. The haste of the termination was because the company did not want the employee to become entitled to take 12 months maternity leave.

The Tribunal ordered the company to pay to two months salary to the employee and $2,500 for hurt and humiliation.

HR Tip 

This case shows that employers must be careful in how they manage pregnant employees and that any decision to performance manage or dismiss the employee must not be based on the employee's impending entitlement to maternity leave. Care should also be taken when managing a pregnant employee who is unable to attend work for reasons relating to the pregnancy.

Should you require advice regarding this or any other workplace matter, please call Australian Business Lawyers & Advisors: 1300 565 846.

Note: This is for information purposes only.
It does not purport to be comprehensive or to render legal advice.