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Pregnancy discrimination and parental leave gain prominence

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 91, 18 October 2005

Discrimination claims are likely to become more common in light of the proposed Federal IR reforms. Further, the recent Federal Commission test case has extended parental leave rights. Pregnancy discrimination and parental leave is a more prominent issue for employers than ever before. The following cases consider termination of employment in circumstances of pregnancy.

In Georgina Scarpa v Elaeno Nominees, Australian Industrial Relations Commission [2005] Ms Scarpa was employed as a pharmacy assistant. When Ms Scarpa fell pregnant she suffered severe morning sickness, requiring time off work. At that time, her employer did not express any dissatisfaction with her attendance. Around October 2004, Ms Scarpa suffered a particularly severe bout of morning sickness and asked her husband to call in sick for her, which he did, reporting it to Ms Scarpa’s supervisor.

Later that day, Mr O’Neale, the Pharmacist in Charge, contacted Ms Scarpa’s home and spoke to her husband. Mr O’Neale told Ms Scarpa’s husband that she shouldn’t be working in the pharmacy when she was pregnant and said words to the effect of “we both know if she’s pregnant she’s not good enough to stay here, she should be at home and you should work for her”. Mr O’Neale then terminated Ms Scarpa’s employment stating that she had not attended work or notified of her sick day.

The Australian Industrial Relations Commission found that the dismissal was harsh, unjust and unreasonable in breach of the Federal Workplace Relations Act. This case follows the recent finding in Howe v Qantas that employees may have access to sick leave entitlements during pregnancy and taking sick leave is not a valid ground for dismissal.

In Dare v Hurley, Federal Magistrates Court of Australia [2005], Ms Dare was employed as an office manager with Mr Hurley’s company, PGH Environmental Planning. After accepting the offer of employment, Ms Dare discovered she was pregnant. Ms Dare informed Mrs Hurley (Mr Hurley’s wife and employee) of her pregnancy after an ultrasound confirmed it, shortly after commencing work. Around one week later Ms Dare’s employment was terminated. She was still within her 3 month probationary period.

Ms Dare claimed that her employment was terminated for reason of her pregnancy amounting to unlawful sex and pregnancy discrimination under the Federal Sex Discrimination Act. Ms Dare asserted that she was told the reason for the dismissal was “due to the cost of hiring a replacement [employee]”. However, two days later the recruitment company which placed Ms Dare advised her that the reason for dismissal was her poor work performance.

Mr Hurley claimed he dismissed Ms Dare because he believed, through information provided by Mrs Hurley, that Ms Dare had deliberately deleted documentation from the company’s computer system and installed password protection on documents contrary to company policy. At the time, Mr Hurley regarded this as a malicious attack on the business justifying summary dismissal. Mr Hurley also claimed that Ms Dare had breached the company sick leave policy by notifying Mrs Hurley of a sick day by text message. Mr Hurley denied that pregnancy or the cost of hiring a replacement employee were factors in his decision and that the cost of hiring a replacement employee was in fact cheaper than hiring a permanent replacement.

The Court found that the real reason for the dismissal was Ms Dare’s pregnancy and request for maternity leave and that the deleted documents, password protection and request for sick leave were “merely convenient pretexts”. The Court found that there were incidents where Ms Dare had password protected documents and notified sick leave contrary to company policy. However, the Magistrate found that Mrs Hurley went looking for reasons to dismiss Ms Dare after a hostile exchange about her proposed maternity leave and Mrs Hurley jumped to conclusions without proper investigation. The Court found that had Ms Dare not been pregnant and requesting maternity leave, the alleged misconduct would have been more thoroughly investigated and procedural fairness afforded. In this respect, Ms Dare was treated less favourably, amounting to unlawful discrimination.

HR Tips:

This decision highlights the issues surrounding dismissal of pregnant employees during probationary periods. While an exemption to unfair dismissal laws may be available where an employee is dismissed during probation, there is no such exemption to discrimination laws, leaving employers’ actions open to scrutiny.

In this case, the deficient process and lack of procedural fairness were relevant to the finding of discrimination. Further, the case confirms that employers should not assume that pregnant employees with less than 12 months’ service will resign or can be dismissed if they wish to take maternity leave. Alternatives to maternity leave, such as unpaid leave, should be explored in such circumstances.

Nicole Gower (nee Willmott)
Senior Associate
Australian Business Lawyers