Pregnant employees: tread carefully or risk court’s wrath

by Stephanie Zillman26 Mar 2012

Employers may think they’re being strategic by weeding out prospective mums from their permanent workforce, but a court has made a discrimination finding and hit the offending employer with a $44,000 fine for doing exactly that.

The former employee claimed in a New South Wales court that, after completing her 12-month contract as a program supervisor in 2008, she was not offered a permanent contract as promised because she became pregnant. The court ruled in favour of the employee, who claimed she was not given a chance to reapply for the position, which was advertised externally without her knowledge. She also alleged she was discriminated against upon returning from maternity leave the following year, namely by being made a casual instead of permanent part-time employee, at the behest of her manager who advised her to resign her permanent role to work the shifts she was seeking. Additionally, the employee said she was not offered any shifts as of May 2010 following a dispute with her supervisor.

The Federal Magistrates Court found that as of November 2008, the employer had decided to ease the employee out of the business, viewing her as “troublesome”, and henceforth decided to offer her role to another applicant because there was a chance she would not return to work after giving birth. “Her pregnancy, maternity leave and child care responsibilities provided the catalyst, or perhaps more correctly the vehicle, through which (the company’s CEO) sought to limit her participation in the respondent’s workforce and, ultimately, to affect her removal from it,”  Federal Magistrate Nick Nicholls said.

He ordered the company’s board to apologise to the former employee for failing to act on the employee’s complaint following the dispute with her supervisor, and ruled that the board was partially responsible for the discrimination the employee suffered.

Note to HR

The employer was also chastised for failing to keep appropriate records of its interactions with the employee. “…the business of the organisation, at least those matters dealt with by the CEO, (were) … so lacking in record keeping, note taking, minutes of meetings, diary entries and the like, that very few records, if any, were able to be produced in relation to the contentious issues before the court,” said the magistrate, thus underlining the importance in the eyes of the law of transparency of processes, clear rationale and consistent record keeping.


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