Pregnant employee unlawfully fired for taking leave: Employment Law Update

Last month, the Federal Circuit Court held that a pregnant employee was dismissed on the last day of her probationary period for taking personal and annual leave due to pregnancy-related illness. While employees are not eligible to apply for unfair dismissal if dismissed within the probationary period, general protections provisions are still available. This decision serves as a reminder to employers to point out performance-related issues before dismissing an employee, in order to prevent allegations of adverse action.

Case Study: Mahajan v Burgess Rawson and Associates [2017] FCCA 1560

Mrs Mahajan commenced employment with Burgess Rawson & Associates on 7 December 2015 as an administrative assistant. In late January 2016, she learnt that she was pregnant. In early March, Mrs Mahajan had a three-month probation meeting where she was “praised” for her work ethic. At the end of the meeting, Mrs Mahajan informed her team leader that she was pregnant. On 3 June, the last working day before her probation period expired, she was dismissed.

Between early March and June 2016, Mrs Mahajan took a total of seven days sick leave due to morning sickness and provided the appropriate medical certificates. She also took an additional four days of annual leave to attend medical appointments related to her pregnancy. On six or seven occasions, she was also arrived late to work by five or ten minutes, however she ensured to make up the time at the end of the day.

Burgess Rawson & Associates stated that the reason for their decision to dismiss Mrs Mahajan was the employee’s poor performance and poor punctuality. The fact that she was pregnant and had taken sick leave from time to time formed no part of the reasons for the decision.

Mrs Mahajan filed a general protections claim alleging that her employer had unlawfully dismissed her from her employment due to her pregnancy, and for taking annual and personal leave.

Adverse Action

Adverse Action is taken by a person or industrial association that is deemed unlawful under the general protections provisions of the Fair Work Act 2009 (Cth). Under section 340, for an adverse action to be successful, the employee must prove that an employer took adverse action, and that the action was taken because there was a relevant workplace right exercised.  In this case, it is up to the employer to demonstrate that the action was not taken for the prohibited reason alleged. Importantly, the alleged reason does not have to be the only reason for undertaking the action.

Section 342 provides a list of categories where an adverse action may be taken, including the dismissal of an employee. In this case, Mrs Mahajan alleged that she was unlawfully dismissed by her employer, according to:

• Section 351: An employer “must not take adverse action against a person who is an employee” on various grounds, one of which is “pregnancy”.
• Section 352 provides that an adverse action is available if an employee is dismissed “because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations”.

The result

The Federal Circuit Court found that the respondent did unlawfully dismiss Mrs Mahajan under sections 351 and 352, respectively.  Justice Riley drew attention to the fact that the employee was dismissed on the last day of her probationary period and was told that “due to your current circumstances, your employment has become unreliable”. In her Honour’s view, this was a clear reference to the employee’s pregnancy and made up a significant and substantial reason for her dismissal.

The penalty hearing for this case has been set for October 2017.

Impact on employers

This decision highlights the fact that there is no minimum employment period that applies to general protection claims under the Fair Work Act. As a result, it is important for employers to discuss performance related issues with employees on a probationary period prior to dismissing them. This may protect you from defending a claim of adverse action from a disgruntled employee.

Want to know more about employment law? Please don’t hesitate to contact our experienced Newcastle commercial lawyers at Butlers Business and Law on (02) 4929 7002 or fill out an enquiry form on our website.

Image ‘Onsie in the golden hour’ by Mon Petit Chou Photography available at Flickr under a Creative Commons Attribution 2.0.