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Energy company rapped for making pregnant woman redundant

Making a pregnant employee redundant has been found to be unlawful because it was done two days before she was due to start maternity leave.
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Energy company rapped for making pregnant woman redundant

Energy company rapped for making pregnant woman redundant

6 September 2017

The Federal Circuit Court heard that Caroline Power discovered she was pregnant two years after she began working for gas and welding company BOC. Her parental leave was approved to start on November 6, 2015, but her employment was terminated on November 4. FACESHARE

She was one of eight employees nationally to be made redundant as a result of a business restructure.
The court found there was a genuine business case for Ms Power's redundancy, but it was unlawful because it was brought forward due to her workplace right to take parental leave.

Sydney lawyer Kerryn Tredwell, said there was a "lesson for employers" that the timing of a decision to dismiss an employee in similar circumstances was "crucial".

While it was not unlawful to make a pregnant employee redundant, Ms Tredwell said an employer should seek advice to minimise risks and ensure an employee was not disadvantaged as a result of being pregnant or exercising a workplace right to take parental leave.

Eight redundancies were to take effect on November 12, 2015, but because Ms Power would have to come back from maternity leave, she was dismissed two days before she took leave. 

Federal Circuit Court Judge Salvatore Vasta said while he found there was a business case for Ms Power's redundancy, it was a redundancy that should have been made on November 12, 2015. Ms Power was not given the benefit of return to work protections under the Fair Work Act or safeguards under the company's redundancy policy, because the policy was not applied.

If the redundancy had been carried out on November 12, Ms Power would have been protected by the Fair Work Act's return to work guarantee."The bringing forward of the date of redundancy is adverse action," Judge Vasta said.

"I am pleased with the decision. It's been a long and stressful ordeal so I am happy to finally have some closure," Ms Power told Fairfax Media.

Ms Tredwell said the employer failed to convince the court that it brought the date forward with Ms Power's best interests in mind.

"As a result of the decision to bring forward the termination date, Ms [Power] lost her right to parental leave (including a portion of company paid leave) and the return to work guarantee," she said.

Ms Tredwell said there was no legal prohibition to making someone redundant when they were pregnant or when they were on maternity leave.

"That can be done lawfully, but real care needs to be taken," she said.

"It all comes down to what is the reason for this decision. If any part of the reason is the pregnancy or the parental leave or the carer's responsibilities, then that's when discriminatory considerations arise."

The burden of proof fell on BOC to prove that no part of its decision to make Ms Power redundant was connected with her parental leave or pregnancy.

"The evidence from the company was that the reason for bringing forward her retrenchment was because she was going on parental leave. They made a mistake bringing it forward," Ms Tredwell said.

"If they had left it and made her redundant with everybody else the following week, then provided they could prove there was no suitable alternative job for her, they could have done it lawfully. It was really that timing error that let them down."

Judge Vasta adjourned the matter for an assessment of damages and potential penalties against the company. Ms Tredwell said this hearing is listed for September 18.

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Originally published by Sydney Morning Herald:


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