Here’s an interesting court case: a pregnant employee, who had used up all her sick leave entitlements, was given a written warning about her performance and then dismissed one week before she would have been entitled to 12 months unpaid maternity leave. Although the employer argued that her employment was terminated solely on account of her poor work performance (unreliable attendance, being behind in her workload and excessive personal use of telephone and Internet), the tribunal did not accept this version of events.
The tribunal found that the employer’s reasons for dismissal were unsubstantiated and exaggerated. There was not enough evidence to support the view that her performance was so bad as to warrant termination. The real reason for her dismissal, in the tribunal’s view, was that she had taken a lot of sick leave once pregnant, which made her an unreliable employee in the employer’s view. Terminating her employment before maternity leave amounted to discrimination on the ground of pregnancy. The tribunal awarded the dismissed employee approximately AU$10,500 in damages.
Firing employees is always a delicate thing, but for pregnant employees, employers must take special care in documenting performance issues so that they are not seen to be dismissing pregnant employees for invented, exaggerated or unsubstantiated reasons.
