Employer argues it needed full-time employee for operations
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim from a pregnant worker who said she got notified and fired on the same day.
Meanwhile, the employer argued that the reason why she was dismissed was because their operational requirements needed a full-time employee.
On 1 June 2023, the worker, Yasmin Zayat, filed an application to the FWC to seek compensation for what she believed was unfair dismissal from her position at O’Malley’s Operations Pty Limited.
Worker discloses her pregnancy to management
The worker started her role as a bar/gaming attendant for the employer on a part-time basis at the Royal Hotel Granville in October 2022.
After a few months of working there, on 15 May 2023, when she arrived for her scheduled shift, she was met by Riley Panetta-Sleiman, the employer’s representative, who informed her of her dismissal. The employer said it needed to employ a full-time employee.
According to the worker, the employer's decision took place after the worker had disclosed her pregnancy to a coworker on 5 May and after management became aware of her pregnancy a few days after that.
The worker argued she communicated her pregnancy to the management on 8 May, and her dismissal was executed on 15 May.
The worker added that she was both informed of her dismissal and that the dismissal became effective on the same day.
She recounts that on May 15, 2023, she reported for her shift at 12 pm, greeted Riley Panetta-Sleiman, and was subsequently asked to sit down, at which point she was informed of her termination due to the necessity of hiring a full-time replacement.
Fair Work Commission enumerates factors to decide if dismissal was unfair
In its decision, the FWC enumerated the factors it considers to determine whether a dismissal was harsh, unjust or unreasonable. It said the Commission must take into account:
- whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
- whether the person was notified of that reason; and
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
- any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
- if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
- the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- any other matters that the FWC considers relevant.
HRD previously reported on the case of a pregnant HR manager who said she was unfairly dismissed from work because she asked for an extended leave.
Was the dismissal unfair or not?
During the case’s proceedings, the employer was not participating or responding to the FWC’s efforts to reach it, and so, the FWC based its decision on the worker’s submissions.
The Commission noted that the worker was “expecting a child at the time of her dismissal,” and despite her condition, she “was not provided with any notice of her dismissal before it being communicated.”
“In these circumstances, the impacts of the dismissal would have a more acute impact on her in terms of her capacity to make plans and secure employment prior to her anticipated due date,” it added.
The Commission also said that the employer could have considered transferring her to another role or position within the company.
“Even if the reason for the dismissal was because the [employer] did not require a part time role and required a full-time role, no opportunity was provided to the [worker] to explore alternatives to the dismissal such as taking on the full time role or other opportunities that may have been available within the [employer’s] enterprise or the enterprise of an associated entity,” it said.
“The [worker said] that the termination has caused financial hardship and loss of income during a vulnerable period of pregnancy, affecting her ability to support herself and family and that she would have been entitled to parental leave pay but for the dismissal,” it added.
Thus, after consideration of the worker’s circumstances, it found that her dismissal was unfair and ordered compensation.
