The case is Mahajan v Burgess Rawson and Associates  FCCA 1560, 7 July 2017.
Section 351 of the FairWork Act provides that an employer “must not take adverse action against a person who is an employee” on various grounds, one of which is “pregnancy”.
Section 352 provides that an employer “must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations”.
Section 360 provides that for the purposes of those provisions “a person takes action for a particular reason if the reasons for the action include that reason”.
Section 361 reverses the onus of proof by providing that in certain (relevant to this case) circumstances it is “presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise”.
The employee commenced employment on 7 December 2015 as an administrative assistant with a commercial property real estate agency. In late January 2016 she learnt that she was pregnant. She informed a senior officer of the employer of the pregnancy in early March. On 3 June 2016, the last working day before her probation period expired, she was dismissed.
Between early March 2016 and dismissal on 3 June 2016 she took a total of seven days sick leave due to morning sickness (providing appropriate medical certificates) and in addition took four days of annual leave to attend medical appointments related to her pregnancy.
She acknowledged that she was late to work six or seven times (on other occasions) during the period March to June 2016 and that on most of those occasions she was only five or ten minutes late and would make up the time at the end of the day. The employer’s representative said that he understood that the lateness on those occasions was due to public transport difficulties.
The employer’s case was that the reasons for the decision were the employee’s poor performance and poor punctuality. The fact that she was pregnant and intended to take maternity leave and had taken sick leave from time to time formed no part of the reasons for the decision.
Significant allegations by the employee
The employee claimed that during the dismissal meeting she was told “Due to your current circumstances, your employment has become unreliable and we have decided not to continue your employment.”
Findings by the Court
Judge Riley of the Federal Circuit Court found that though “denied by the employer’s representative” those words were said at the meeting and at that the words “Due to your current circumstances” could “only refer to the Applicant’s pregnancy”. The Judge said that it “beggars belief” that the employer would have said that the employee had become unreliable on the basis of the lateness for work discussed above and that “I consider that the Respondent has failed to discharge the reverse onus in relation to the pregnancy ground. That is, I consider that a significant and substantial reason for the Respondent dismissing the Applicant was her pregnancy”. Later the Judge said “Rather, I consider that (the employer’s representative) viewed the Applicant as unreliable because she was frequently absent from work on personal or annual leave, due to pregnancy related illness” and the dismissal was “because of what he perceived as her unreliability consisting of her frequent absences on personal or annual leave, due to pregnancy related illness. I simply do not believe his evidence to the contrary”.
Accordingly the court concluded that it was satisfied that the employer dismissed the employee because she was pregnant and took personal and annual leave and was temporarily absent from work due to illness or injury. The court rules that there would be appropriate declarations and that the parties would be heard on consequential orders.
Lessons for employers
Community standards enshrined in the law make it critical that employers manage such situations with an acceptance of those values, and that they ensure that their decision making processes are consistent with those legal obligations
There is a particular vulnerability in such circumstances because of the reverse onus of proof
In addition to legal obligations, there are clearly potential serious reputational risks to employers whose behaviour is thought to be (or as in this case judicially determined to be) inconsistent with the values of the community enshrined in such laws.
Author: Andrew Knott
Rachel Drew, Partner
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Charles Power, Partner
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Benjamin Marshall, Partner
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Stephen Trew, Managing Partner, Sydney
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Michael Selinger, Partner
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Published by Andrew Knott