Worker claims 'lack of flexibility' in schedule despite pregnancy-related sickness
The Employment Relations Authority (ERA) recently dealt with a case involving a worker who claimed she was constructively dismissed and unjustifiably disadvantaged by her employer due to her pregnancy.
The worker alleged that she was subjected to unfair treatment, lack of flexibility, and a sudden reduction in her working hours after informing her employer about her pregnancy. The worker claimed that her pregnancy was high-risk and that she had informed her employer about her need for flexibility in her working hours.
She alleged that despite this, she was "always questioned or shamed about being sick, or have a cold and sharp treatment, like I'm not right to be feeling sick, even when with a doctor note and validation."
The worker also raised concerns about the lack of flexibility in her starting times, stating that she had requested to start her shift at 10 am due to morning sickness and traffic issues, but her request was denied. She felt that her colleague, who was also pregnant, was given more flexibility in her working arrangements.
Background of the case
The worker, a beauty therapist, had previously worked as a clinic manager for the employer before resigning to visit family in Brazil. Upon her return to New Zealand, she was offered part-time employment at the clinic, starting on or about 1 June 2022.
The employment agreement stated that she would work an average of 15 hours per week, with her hours set in advance according to a roster and notified at least 14 days in advance.
Shortly after starting her new role, the worker informed her employer that she was pregnant. She requested flexible start and finish times to accommodate her morning sickness and the traffic during her commute.
The worker also took on additional shifts when a colleague resigned, working approximately 24 hours per week across three days: Sunday, Monday, and Wednesday.
Escalation of dispute
The worker's entitlement to sick leave, as per the agreement, was the statutory minimum of 10 days per year after six months of employment. The ERA noted that, as a pregnant employee, the worker was entitled to take up to 10 days' unpaid special leave for reasons connected with her pregnancy under the Parental Leave and Employment Protection Act 1987 (PLEPA).
The worker's concerns about unfair treatment and lack of flexibility escalated after an incident on 12 October 2022, when she informed her manager that she was feeling unwell and wished to start her shift at 10 am instead of the usual 8:45 am.
The manager's response, conveyed through text messages, was deemed inappropriate and unsupportive by the ERA.
Following this incident, the worker discovered that her rostered days had been reduced from three to two per week, without prior consultation. The employer maintained that this change was made for business reasons and not as a punishment for the worker's absence.
The worker felt that the reduction in her hours was a targeted action, as it only affected her and not her colleagues. She expressed concern about the impact this would have on her income and entitlements, particularly in light of her upcoming parental leave.
Attempts at resolution and resignation
The worker and her partner met with the employer on 16 October 2022 to discuss her concerns. During the meeting, the worker's partner read a statement on her behalf, outlining the challenges she faced due to her pregnancy and the lack of flexibility and understanding from her employer.
The worker expressed her desire to maintain her three full days of work per week and to be treated with kindness and professionalism when she needed to start later due to genuine sickness.
Despite this meeting, the worker felt that her concerns were not adequately addressed, and she applied for a job at another clinic within the same organisation.
On 18 October 2022, the worker resigned via email, stating that the situation and unfair treatment had forced her to make this decision.
The employer denied the worker's claims, stating that her "regular absences" were always treated in good faith and with respect, despite her last-minute notifications.
They argued that all issues raised by the worker were addressed promptly and clearly and that she was offered considerable flexibility with her rostered hours.
The ERA's decision
The ERA found that the employer had breached its duties towards the worker, particularly in relation to the events that transpired on 12 October 2022.
The authority noted that the manager's response to the worker's text messages about her inability to come to work due to pregnancy-related issues was "reactive and not appropriate."
The ERA also found that the employer should have consulted the worker before making significant changes to her roster, given that she had been working a regular pattern of shifts for several months.
The Authority stated that "good faith requires the parties to be communicative" and that the employer "should have discussed the possibility of her shifts being changed and the reasons it was considering such a change with [the worker]."
The Authority concluded that the employer's breaches were sufficiently serious to make it reasonably foreseeable that the worker might resign, stating:
"Her experiences with management on both 12 and 13 October 2022 amply demonstrated nothing was likely to change in that regard. Having previously been a valued and long-serving employee, her unmet requests for understanding and flexibility for pregnancy-related reasons fell on deaf ears, and she was suddenly met by an abrupt reduction in days of work," it said.
Consequently, the ERA determined that the worker's resignation was an unjustified constructive dismissal and awarded her $20,000 in compensation under s 123(1)(c)(i) of the Employment Relations Act 2000.
The case reminded employers to be mindful of their legal obligations towards pregnant employees and to approach their needs with empathy, flexibility, and open communication.
As the ERA said: "Even where an employer wants an employment relationship to continue, it may also still have constructively dismissed an employee because of its conduct towards the employee."
