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Redundancy triggered post-natal depression

The employee has been awarded compensation of more than $50,000.
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Redundancy triggered post-natal depression

Redundancy triggered post-natal depression

5 June 2020

A woman who was retrenched just as she was about to apply for maternity leave has been awarded compensation of more than $50,000. The Fair Work Commission found that the employer’s actions contributed towards her suffering from post-natal depression.

The amount covered both economic and non-economic loss. The employer knew that she was about to apply for maternity leave.


Facts of case

The woman was a receptionist for a family-run computer retailer, employed for more than 10 years. The parties disputed whether the leave application or the redundancy notice came first.

She had requested sick leave to attend medical appointments for a pregnancy-related illness (gestational diabetes), granted only after the Fair Work Ombudsman intervened. About a month later, she applied for maternity leave. Evidence indicated that the employer was aware that she was pregnant and intended to apply for maternity leave on the day she was retrenched.

The redundancy letter cited a downturn in business as the only reason and offered her a casual position, which she declined. The employer provided evidence that the business was declining and it needed to reduce staff.

She claimed that the employer’s actions in depriving her of employment entitlements and retrenching her contributed to her suffering post-natal depression, and produced a psychiatrist’s report to support the claim. She claimed that the employer’s actions amounted to taking adverse action against her.

She was later unable to access paid parental leave, because loss of her job meant that she did not meet Centrelink’s work test. The employer also failed to supply a separation certificate.

Whether the leave application preceded the redundancy notice or vice versa did not ultimately matter, because the employer later confirmed its decision by email to her.

There was also evidence that the employee had been underpaid over the years and at times not granted her sick leave and leave loading entitlements. The underpayments then reduced her termination payout.


Decision

When the employee was retrenched, prohibited reasons – being pregnant, having a disability (her pregnancy-related illness) and exercising a workplace right to apply for maternity leave and other employment entitlements – outweighed other reasons, which included the employer’s financial situation. Therefore the prohibited reasons were a substantive and operative factor in the decision to retrench her. The employer was aware of her situation when it made the decision.

The offer of casual employment was worded in uncertain and unspecified terms. Even if she had accepted it and termination had not occurred, the employer would have altered her (full-time permanent) position to her detriment – also adverse action.

The FWC awarded the following compensation:
  • $15,000 for non-economic loss
  • $13,330.80 for lost paid maternity leave entitlements
  • $23,763.80 for past and future economic loss

The total amount awarded was $52,144.60. The FWC estimated that her employment would have continued for a maximum of six months after returning from parental leave.

The bottom line: An employer cannot expedite a dismissal or redundancy in order to avoid a forthcoming parental leave application. Tribunals will examine the real reasons behind the employer’s actions.

A “prohibited reason” within the scope of the General Protection provisions of the Fair Work Act 2009 does not have to be the only reason, or even the main reason, for dismissing an employee, in order for adverse action to have occurred. It only has to have contributed towards the detriment suffered by an employee.


Read the judgment

Liu v Compuworld Pty Ltd [2020] FWC 2569, 22 May 2020

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