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Pregnancy Discrimination – Penalties Awarded in Recent Cases

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An emerging trend under the Gillard’s Fair Work system is the growing number of prosecutions being undertaken by the Fair Work Ombudsman (FWO) against both employers and directors of employers claiming breaches of the adverse action provisions of the Fair Work Act 2009.

In February 2012 Court decisions handed down on point include:

  1. A childcare centre, which had been found to have dismissed an employee due to her pregnancy and family responsibilities, despite claiming dismissal was due to performance issues, was ordered to pay a $5,500 penalty and almost $9,000 in compensation.

    The employer in that case, Acorp Pty Ltd, was found to have ‘mishandled’ a return to work from maternity leave situation involving a female director and employee.

    The Court held that contraventions of this type are no longer trivial or considered a technical breach of the Fair Work Act 2009.  The Court stated that such breaches strike at the very heart of the adverse action protections afforded to employees under the Act.

  2. Directors of a printing business, Wongtas Pty Ltd, were fined amounts totalling over $11,000, in addition to being ordered to back pay wages and other economic loss related damages.

    The Court held that the female employee had altered her work duties following a miscarriage suffered by the employee that necessitated the employee taking personal leave.

    It is interesting to note that, even though the employer had gone into liquidation, the FWO had commenced their proceedings against its two directors personally.

The above cases highlight the reality that the new adverse action provisions detailed in the Fair Work Act 2009 are far reaching and provide powerful tools for the FWO, as well as aggrieved workers, to prosecute, not only employers, but their directors and managers, with regard to workplace right breaches.

As an employer, or as a director or manager of an employer, you should be aware of what constitutes an ‘adverse action’.  We urge you to take advice and ensure that, moving forward, your company is compliant with the Fair Work Act 2009.

MST has a fixed price workplace audit solution that will investigate and report on areas of non-compliance with the Fair Work Act 2009.  Our report will, importantly, identify what steps are needed to ensure full compliance.

Author: Herb Fischbacher

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