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The Federal Circuit Court of Australia has found that an employer took unlawful adverse action against a pregnant employee when it dismissed her for taking time off work due to morning sickness and to attend medical appointments (Mahajan v. Burgess Rawson & Associates Pty Ltd.  FCCA 1560).
The background to the dismissal was that:
The employee lodged a general-protections claim alleging that she was dismissed in breach of the Fair Work Act 2009 because:
The court rejected the company's claim that it dismissed the employee for poor performance and because she was arriving late to work, rather than because she was pregnant.
The court said it "beggars belief" that the director would have said the employee's employment had become unreliable on the basis that she was a little late to work on six or seven occasions in a three-month period, together with some "formatting issues" that had not formally been raised with the employee. Rather, the court accepted that a "significant and substantial" reason for the employee's dismissal was her pregnancy.
The court was satisfied that the employer dismissed the employee in breach of the Fair Work Act 2009 because:
The matter is listed for a penalty hearing in October 2017.
Lessons for Employers
The case is a timely reminder that employers need to take care when managing absences relating to pregnancy. If a "substantial and operative" reason for taking adverse action against a pregnant employee includes any of the reasons outlined above, the employer could find itself subject to civil penalties for breaching employment laws.
Kerryn Tredwell is an attorney with Hall & Wilcox in Sydney and Karli Thomas is an attorney with Hall & Wilcox in Melbourne, Australia. © Hall & Wilcox. All rights reserved. Reposted with permission of Lexology.
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