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Redundancy: is pregnancy a special case?

Release Date

04 March 2013

Pregnant workers are entitled to special treatment in the workplace; so, does this extend to special consideration when redundancies take place?

A recent enquiry …

Due to a company reorganisation, we have determined that 10 positions will become redundant at the end of next month.
 
The company has decided to adopt a selection criteria based on the ‘last on–first off’ principle.
 
It has been brought to my attention that one of the employee’s whose position will become redundant is pregnant.
 
The employee who is pregnant is the most recent recruit in that area and, unfortunately, will be the first selected for redundancy under the criteria.
 
I am concerned that terminating an employee who is pregnant may be unlawful.
 
The other issue is that her duties will be shared among the remaining employees.
 
Does the employee’s pregnancy mean she cannot be selected for redundancy?
 
Objective selection criteria
 
The important issue in this circumstance is the objective nature of the selection criteria applied by the company when determining which positions becomes redundant.
 
It is unlawful to terminate an employee where the grounds for the dismissal are discriminatory (eg because the employee is pregnant).
 
The use of the ‘last on–first off’ principle as the basis for the selection criteria would appear to be objective. Provided the employer fairly applies the ‘last on–first of’ principle (ie the positions of other employees (including this employee) who fall within this category are also made redundant), the grounds for dismissal would appear to be a ‘genuine redundancy’ and not based on the employee’s pregnancy.
 
It is presumed redeployment of the affected employees is not an option available to management.
 
Duties of the position
 
The fact that her duties will be performed by others does not, of itself, mean her position is not redundant. It is the position or job that is no longer required, not necessarily the duties within that position or job.
 
This means that a volume of work may be redistributed across a workforce that allows for a number of other positions to be made redundant. See: Anderson v XL Express Pty Ltd [2012] FWA 9011.
 
Onus of proof
 
It should be noted that the onus of proof in an adverse action application lies with the employer.
 
This means the company would need to satisfy the court that the selection criteria was based on objective factors and not discriminatory.
 
Source: Paul Munro is a Senior Analyst with our leading HR/IR website www.workplaceinfo.com.au

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