Sacked for being pregnant and taking leave

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Sacked for being pregnant and taking leave

An employer unlawfully dismissed a woman because she was pregnant and had taken annual and personal leave to visit a doctor, the Fair Work Commission has ruled.

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Real estate agency Burgess Rawson & Associates unlawfully fired a woman – on the final day of her probation period – because she was pregnant and consequently took annual and personal leave. 

Tiffany Mahajan began work as an administrative assistant on 7 December 2015. In January 2016, she learned that she was pregnant. She told her boss and company director, Timothy Perrin, that she was pregnant in early March. On the last day before her probation period expired she was fired. 

Opposing arguments 


Mrs Mahajan filed a complaint at the Federal Circuit Court of Australia alleging that her former employer had acted unlawfully in dismissing her for taking annual and personal leave, and for being pregnant.  

Mr Perrin, who terminated Mrs Mahajan’s employment, denied that he dismissed her for these reasons. He said her employment was terminated on the grounds of unsatisfactory performance and a lack of punctuality. 

Background


The minutes of a directors’ meeting, held in late January 2016, record that “Bec [an employee other than Mrs Mahajan] is pregnant and her attendance record is bad”.

Mrs Mahajan then had seven days of sick leave over the months to her dismissal owing to her pregnancy for which Mrs Mahajan provided medical certificates. She also took four days of annual leave to attend pregnancy-related medical appointments. On each occasion Mrs Majahan informed Mr Perrin either in advance or early in the morning.

Mr Perrin also conceded in court that he had not raised any performance concerns with Mrs Mahajan and that she therefore had not had an opportunity to correct her performance. 

There was another board meeting in late April and the minutes record “Tiffany 6 months 6 June. Situation needs to be dealt with.” 

Judge Riley noted that it was interesting that, in the same minutes, there were other staff members who were identified as not performing well or were absent, however, “there was no performance-based or other explanation in the minutes of why the situation regarding the applicant [Mrs Mahajan] needed to be dealt with”. 

Another board meeting, this time on 26 May, recorded that there was a need to arrange a meeting with the applicant.

Mr Perrin said in evidence that, at that point, he had decided to terminate her employment based on performance. He then conceded under questioning that he had not raised any performance issues in advance of the dismissal meeting and that during the meeting he still did not detail any concerns he had with her performance.

He also conceded that he did tell the applicant that her lateness was a problem nor that he doubted her reasons. 

Mrs Mahajan was fired at 4pm on 3 June 2016. 

The law


An employer must not take “adverse action” against an employee because he or she has chosen to exercise a workplace right (s340 of the Fair Work Act).

A dismissal of an employee can count as “adverse action” for the purposes of the FWA, which goes on to state that an employer must not take adverse against a person on the grounds that she is pregnant (s351(1)).

Section 352 of the Act, and regulation 3 of the Fair Work Regulations, state that an employer must not dismiss a worker because he or she is temporarily absent because of illness or injury and who either supplies a medical certificate within a reasonable time of the absence or notifies the employer of absence and substantiates that reason. 

Held


Judge Riley was scathing of the quality of Mr Perrin’s evidence and arguments.

She ruled that that Mr Perrin’s denial that he had dismissed Mrs Mahajan because of her pregnancy was not credible. She found that, despite Mr Perrin’s denial, that he said at the termination meeting “due to your current circumstances, your employment has become unreliable and we have decided not to continue with your employment.”  

Judge Riley then held that the words “due to your circumstances” could only have referred to the applicant’s pregnancy. 

She then held that “it beggars belief” that Mrs Mahajan’s employment had become unreliable on the basis that she was a little late for work on six or seven occasions in conjunction with some formatting issues that he had not raised with her.

Judge Riley then added that it was “preposterous” that she could have been dismissed for not picking up discrepancies in valuation figures as responsibility for that error “obviously” lay with the valuer who created the report. 

In turning to the claim that the employer discriminated against the applicant because she took personal and annual leave, the judged commented that “it seems to me that Mr Perrin treated the applicant’s absences on annual leave as absences due to her pregnancy and as absences which affected her reliability… I simply do not believe his evidence to the contrary.”

She added that it was “implausible” that Mr Perrin would want to dismiss the applicant for being late on occasion and for making formatting errors, but not want to dismiss her for being absent from work on 11 days out of 12 weeks.

She added that the failure to raise performance issues with Mrs Mahajan during her employment tended to undermine the credibility of allegations about her performance that were raised for the first time after her dismissal.

It was also significant, she held, that the company dismissed the applicant during the last working hour on the last day before her probation period ended. 

“If the applicant’s performance had genuinely been bad enough to dismiss her, the [employer] could have been expected to dismiss her much earlier,” the judge ruled. 

Judge Riley ruled that Mrs Mahajan’s pregnancy, and her absences for personal and annual leave because of her pregnancy, were the significant and substantial reason for Burgess Rawson & Associates terminating her employment.

Accordingly, it was held that the company had dismissed Mrs Mahajan because she took personal and annual leave, and because she was pregnant.

Mahajan v Burgess Rawson & Associates Pty Ltd [2017] FCCA 1560 (6 July 2017)
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