Dismissal of pregnant employee with morning sickness unlawful

The Federal Circuit Court has found that an employer took unlawful adverse action against a pregnant employee when it dismissed her for taking time off work due to morning sickness and to attend medical appointments¹.

The background to the dismissal was that:

• In March 2016, the employee attended a three-month review meeting halfway through her six month probation period. The company told the employee that she appeared to be “going alright” and did not raise any performance concerns. The employee told the company that she was pregnant and that she intended to commence maternity leave on 1 September 2016.
• Over the next three months, the employee took a total of seven days sick leave due to morning sickness, plus four days’ annual leave to attend medical appointments related to her pregnancy.
• On 3 June 2016, the last working day before her probation period expired, a director of the company dismissed the employee telling her that: “due to your current circumstances, your employment has become unreliable and we have decided not to continue with your employment”.

The claim

The employee lodged a general protections claim alleging that she was dismissed in breach of the Fair Work Act 2009 because:

• she had exercised her workplace rights to take annual leave and/or personal leave
• she was temporarily absent from her work due to illness or injury and
• she was pregnant, or because of her sex.

The Court rejected the company’s claim that it dismissed the employee for poor performance and because she was arriving late to work, rather than because she was pregnant.

The Court said it “beggars belief” that the director would have said the employee’s employment had become unreliable on the basis that she was a little late to work on six or seven occasions in a three month period, together with some ‘formatting issues’ that had not formally been raised with the employee. Rather, the Court accepted that a “significant and substantial” reason for the employee’s dismissal was her pregnancy.

The Court was satisfied that the employer dismissed the employee in breach of the Fair Work Act 2009 because:

• she was pregnant
• she took personal leave
• she took annual leave and
• she was temporarily absent from work due to illness or injury.

The matter is listed for a penalty hearing in October 2017.

Lessons for employers

The case is a timely reminder that employers need to take care when managing absences relating to pregnancy. If a ‘substantial and operative’ reason for taking adverse action against a pregnant employee includes any of the reasons outlined above, the employer could find itself subject to civil penalties for breaching employment laws.

¹Mahajan v Burgess Rawson & Associates Pty Ltd [2017] FCCA 1560.