Is it discrimination? Commission found employee had been scheduled to undertake training but was not allowed to do so after disclosure
A casual employee who worked full time hours over seven months at a distribution centre told her employer on 25 May 2025 that she was seven weeks pregnant. The employee's shifts were placed "on hold" including shifts on which she was to undergo training to work in a different position.
A few days later the employee worked two shifts on "light duties" and then received an SMS advising that no light duties were available, and since she was not trained in other areas, the employer could not place her elsewhere.
After careful consideration of her safety and discussions with operations, there were no light duties to be offered so her shifts would be put on hold.
Employee provided medical certificates advising restrictions
The commission found the employee commenced casual employment at the distribution centre on 30 October 2024. The commission found the employee was employed on a casual basis as a "pick packing associate" which involved picking parcels, using a step ladder and scanning picked parcels.
The commission found the employee earned on average $1,426 per week and received no formal warnings or complaints during her employment.
The commission found shortly before 8:30pm on Sunday 25 May 2025, the employee advised the employer that she was pregnant. The commission found in cross-examination the employee said she did so because "I was using the ladder that day and I felt dizzy. So I can't work there. That's why I told them."
The commission found the employee also agreed under cross-examination that she was concerned about whether she could safely perform the role due to her pregnancy.
Employee worked two light duty shifts
The commission found the employee didn't finish the rest of her shift. The commission found at approximately 8:30pm the employee sent a medical certificate to the employer by email dated 20 May 2025 stating the employee was in her early pregnancy, getting back pains and advised not to climb ladder or lift heavy weights.
The commission found the employee was asked to provide another medical certificate and on Monday 26 May 2025 provided a second medical certificate stating she was advised to avoid stairs and bending and not to lift heavier weight than 5 kg otherwise she was fit to work.
The commission found it appeared the employee had been scheduled to undertake training on Thursday 29 May 2025 but was not allowed to do so. The commission found the training was described by the employee in later correspondence as "for Packing". The commission found the employee worked a night shift starting on Sunday 1 June 2025 on "light duties".
The commission found beyond this, there was no evidence about how the employee came to work this shift on light duties. The commission found the employee worked a second night shift on light duties starting in the evening on Monday 2 June 2025.
Employer sent SMS placing shifts on hold
The commission found on Tuesday 3 June 2025 the employee received a follow-up SMS at 11:23pm regarding a Certificate of Capacity asking if she was able to get her doctor to fill out the paperwork and bring it back on her next shift on Thursday.
The commission found on Wednesday 4 June 2025 at 10:59am the employee replied stating she had chat with her doctor, she advised that this certificate was for injury and there was a different certificate for pregnancy related duties, asking if the employer could please send her that. The commission found the employer did not reply to the employee's email.
The commission found at 2:04am on Thursday 5 June 2025 the employee received an SMS from the employer stating due to her lifting restrictions of less than 5kg no suitable on-site accommodations could be made at this time.
It found the SMS stated efforts were made to find a solution but her restriction combined with only having one type of training limited available options. The commission found the SMS stated unfortunately no light duties were available and since she was not trained in other areas, the employer could not place her elsewhere.
Employee pushed back stating behaviour was discriminatory
The commission found the SMS referred to something having been "discussed earlier this evening"; however, there was no evidence of any discussion taking place on 4 or 5 June 2025.
The commission found to the contrary, the employee said "rather than engaging in a discussion or assessing reasonable adjustments that would allow me to continue working safely, I received an SMS message from my employer stating that no suitable accommodation could be made and that there was no guarantee of work moving forward."
The commission found the employee replied by SMS later that day at 5:24pm stating her training was due for packing last Thursday but she was asked for medical certificate before that which she had provided and told could lift up to 10 kg. The commission found the employee stated training could be provided at this stage as well rather than saying that no work was available as she was not trained in any other department of work.
It found the employee stated that she was also given light duty work since her last 2 shifts, but now had been told that no work was available due to her pregnancy situation, which was unfair and discriminatory behaviour.
Commission finds employer took no steps after SMS
The commission found the employee stated she informed about that so she could get support not to get laid off from work and it was illegal to cut shifts or reduce hours after knowing that an employee was pregnant.
The commission found the employee asked to be let know if any accommodation could be done otherwise she had to take this matter further to Fair Work Commission. The commission found nobody from the employer replied to the employee's SMS and the next day she sent the same message by email, and nobody from the employer replied to the employee's email either.
The commission found there was no evidence at all, either direct or indirect evidence, of any action taken by the employer between 5 June 2025 after sending the SMS to the employee and 11 June 2025.
It found the employee provided evidence of her efforts to find other work outside of the employer showing the employee started applying for new positions from 10 June 2025 onwards. The commission found on Wednesday 11 June 2025 the employee made her unfair dismissal application.
Commission satisfied employer dismissed employee
The commission found the employer argued the employee was not dismissed, that she was still employed, and that there was work available for her at the site. The commission found on the state of the evidence it was satisfied that the employer dismissed the employee on 5 June 2025 when it advised the employee that her shifts were "on hold" and then took no further action to continue the employment relationship.
The commission found the communication between the employee and employer after the employee advised she was pregnant was essentially on a shift-by-shift basis.
The commission found over this same period the employer sought further medical information about the employee's work restrictions. The commission found even though the basis upon which the employer sought that information was dubious, the employee was cooperative about the employer's request.
The commission found in this context and viewed objectively, the SMS of 5 June 2025 brought this correspondence and the employment relationship to an end. The commission found the employer no longer sought information from the employee's doctor—the SMS announced the employer's conclusion about the employee's "safety".
Commission finds dismissal harsh unjust unreasonable
The commission found the employee pushed back the next day by SMS and email, referring to being "laid off" and that "no work is available". The commission found if there was any doubt about the finality of the employer's SMS, the employer did not correct the employee's characterisations at all.
The commission found the words used in the employer's SMS, the employer's election not to correct the employee's complaint about being laid off, and the fact the employer took no steps after 5 June 2025 that were consistent with the continuance of the employment relationship, were all consistent with someone at the employer deciding to dismiss the employee on 5 June 2025.
It found there was no evidence of any objectively valid reason to terminate the employee's employment on 5 June 2025. The commission found the employee was not afforded any procedural fairness. The commission found it was plainly evident from the findings that the dismissal of the employee by the employer was harsh, unjust and unreasonable.
Commission orders reinstatement with backpay
The commission found being satisfied the employee made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of section 385, it may order the employee's reinstatement or the payment of compensation to the employee.
The commission found taking all matters into account it found it would be appropriate to order that the employee be reinstated to her former position.
The commission found further it was appropriate to make an order that maintains the continuity of the employee's employment and to make an order that the employer pay to the employee an amount for the remuneration lost by the employee because of the dismissal.
The commission found it would make an order that the employer pay $14,830.40 less taxation as required by law to the employee for the remuneration lost by the employee plus an additional component for superannuation.
The commission ordered the employer must reinstate the employee to her position in which she was employed immediately before her dismissal on 5 June 2025 by no later than 19 December 2025.
