The Fair Work Act provides general protections for workers against employers taking adverse action against them.  Section 351 of the Act says that an employer must not take adverse action against a worker who is exercising a workplace right.

In 2012, the Federal Magistrates Court was asked to decide whether an employer had breached section 351 by terminating the employment of a worker who was pregnant at the time.  The facts of the case were as follows.

In December 2008 the worker was employed as a Contact Director at a child care centre.  The worker was a few months later moved into the position of main director at the centre.  In late 2009 two main events occurred.  The first event was that the worker told her employer that she did not have anyone to look after her children in the upcoming school holidays and requested her employer to allow her to bring her children to work with her.  That request was refused.  She was advised that she would have to take leave without pay.

The second event was that the worker informed her employer that she was pregnant and would need to take maternity leave in June 2010.

When the worker returned to work in January 2010 her employer informed her that her role had changed and that she was designated as staff relief float.  Her employment conditions were changed from full time to casual which meant that she would not be paid sick pay or holiday entitlements.

The worker commenced proceedings in the Federal Magistrates Court claiming that her employer had taken adverse action against her because:

  • She became pregnant and informed her employer of the fact;
  • She needed time away from work to care for her children in the Christmas school holidays;
  • Consequent upon one or both of the above her employment status was changed from full-time to casual.

There was no issue that the workers employment was terminated but the employer claimed that the worker refused to return to work.  The employer also alleged that there were performance based issues that led to the workers employment status being changed.

The court rejected the employer’s argument and found in favour of the worker.  The court ordered the employer to pay to the worker the sum of $8,956.61 for monetary loss.  The court also ordered that the employer pay a penalty of $5,500.00 to the worker.  In the decision, Federal Magistrate Jarrett said:

“The remarkable feature of

[the employers] case, however, was [the] evidence that most of the allegations made against [the worker] about poor performance, poor interpersonal skills, lack of leadership and failure to attend accreditation were never taken up with [the worker] in any meaningful way at all.  She was never given the opportunity to properly respond.”