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Pregnant, on holiday and sacked

She has successfully claimed the termination was not a genuine redundancy.
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Pregnant, on holiday and sacked

Pregnant, on holiday and sacked

10 June 2020

A pregnant woman who was overseas on holidays when her employment was terminated has successfully claimed the termination was not a genuine redundancy.

She was awarded compensation of just under $6750.


No warning

The woman was a part-time book-keeper for a small accounting firm and was five months pregnant at the time. Without prior warning, the employer terminated her employment while she was overseas. It claimed it was due to a business restructure that it had flagged earlier, and claimed that there would be insufficient work to retain her. It stated that the decision was no reflection on her job performance. It was described as a redundancy.

The employee claimed that there was no downturn in available work nor any prior mention of restructuring, and claimed instead that the reasons for termination were her pregnancy and her family’s decision to obtain a second home loan not via the employer’s business. Nor had the employer complied with the consultation requirements that applied to redundancy.

Her termination meant that she became ineligible for government-financed paid parental leave for both her first child and a second one born a year later.

The Fair Work Commission found that neither party provided significant evidence regarding the state of the employer’s business at the time. The employer’s evidence comprised broad generalisations about the industry it was in, general claims about the impact of the Banking Royal Commission, and only limited information about its own customers and financial situation. Nor did the employee provide evidence that her pregnancy was the employer’s reason for ending her employment.

However, there was clear evidence that the employer had not consulted with her before making its decision. Management had made general comments about the state of the business during regular staff meetings, but this did not amount to “consultation about redundancy”. Possible redundancy was not discussed with her before she went on holidays, nor was there any discussion after notifying her of redundancy.

Two other employees gave evidence alleging that the business owner’s conduct towards employees and customers was sometimes unethical.

The employer claimed it had complied with the Small Business Fair Dismissal Code. However, the FWC pointed out that the code applied to misconduct or incapacity, and the employer had said that neither of these had existed. The business owner claimed that there was a “toxic” relationship between the employee and management, exacerbated by rejection of her request for a pay rise, but failed to provide evidence. He claimed he no longer trusted the employee, and that another employee was retained in preference because she was better qualified and more suitable.


Decision

The FWC summed up the employer’s conduct as “hopelessly cavalier and perfunctory”. As there had been no consultation, it had not complied with either the code or award obligations. There was no valid reason for dismissal, and she was not notified of any reason until termination was implemented. Failure to notify her in person (it was done by email while she was overseas) was also unfair.

In terms of compensation to the employee, it commented that merely paying her what she would have received if the consultation requirements had been met (two weeks’ pay) was insufficient in this case. Instead, it awarded 10 weeks’ pay plus superannuation, equivalent to $6747.

The bottom line: Although other issues were raised in this case, the real reason for the dismissal being unfair was that consultation requirements for redundancy were not complied with. In this case, they were set out in the award. The judgment noted that “consultation” does not merely mean an exchange of information. It must include a reasonable and realistic consideration of each party’s views.

The FWC also increased the amount of compensation payable to the employee because of the manner in which the employer treated the employee.


Read the judgment

Goldberg v The Advice Spot t/a The Advice Spot [2020] FWC 2671, 1 June 2020

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