Parental leave feud sparks discrimination claim

Cases

Parental leave feud sparks discrimination claim

A finance employee has been unsuccessful in her claim that she was subjected to “adverse action” and “discrimination”, after she was denied further parental leave.

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A finance employee has been unsuccessful in her claim that she was subjected to adverse action and discrimination after she was denied further parental leave and sacked. 

According to Ms Wang, Instyle Watches and its managing director, Jeanette Sceats, took adverse action against her by dismissing her, discriminating against her and issuing her with a written warning containing misconduct allegations.

Instyle Watches argued that none of these amounted to an injury in employment because they were not compensable injuries which involve a “loss or alteration of a legal right” or a “depravation of one of the more immediate practical incidents of (her) employment”.

Parental leave granted 


Ms Wang took parental leave between July and December 2014. She then used her accrued annual leave and did not return to work until March 2015. After this, Ms Wang was given permission to work from home for two days a week until November that year. 

In December, Ms Wang informed Ms Sceats that she was pregnant again and was granted annual leave from May 2016 to December 2016.

Ms Wang claims that she was given permission to work from home again after returning to work from her second round of parental leave. Ms Sceats claims she never agreed to that request. 

Second round of leave not extended


Ms Wang requested to have her second round of parental leave extended until mid March 2017. This request was approved. She then went on to ask for it be extended a second time until September that year.  This second request was refused by Ms Sceats. Ms Wang responded to the refusal, stating there was no reasonable business grounds for a refusal of the extension request and saying that if the request was not approved by 10 February 2017 she would report to the Fair Work Ombudsman. 

After a series of exchanges, including offers from Ms Sceats to compromise and extend Ms Wang's parental leave until the end of March, Ms Wang responded on the 27th of February agreeing to start work again at the beginning of April. Despite this, Ms Sceats told Ms Wang she had failed to accept the offer to have her leave extended to the end of March before the required date, which was the 13th of March, and that by not returning by then Ms Wang was on unapproved leave. 

According to Instyle, refusing the application for flexible working arrangements and the request for an extended period of parental leave were covered by ss.65(5) and 76(4) of the Fair Work Act and therefore s.44(2) of the Act prevented any order being made in relation to a contravention of those provisions.

The second business


In February 2016, Ms Wang sent Ms Sceats an email concerning a conversation she had had with Ms Sceats’ daughter, Amber Sceats, who ran the Sceats' other jewellery business. According to Ms Wang, Amber Sceats had told her that she would not be able to work from home after returning to work in December 2016. According to Ms Wang this broke their original agreement and constituted “workplace bullying,” particularly considering that she was pregnant and in a “disadvantaged position.”  

After this, Ms Wang refused to work for Amber Sceats, claiming her job only required her to work for Ms Sceats’ company not the second family business. Ms Sceats insisted that working for her daughter had always been part of Ms Wang’s role. After an argument between the two, Ms Sceats said to Ms Wang something along the lines of “Fine, if you won’t do your Amber Sceats duties, you will only need to work part time for Instyle Watches. I will have to hire a part time employee to be the Finance Manager for Amber Sceats if you don’t want to do it. There is not enough work for Instyle Watches alone to make a full time role.”

A 'slight physical altercation'


On March 28 2017, Ms Sceats sent a letter to Ms Wang containing allegations of misconduct against her and inviting her to a disciplinary meeting. The allegations included Ms Wang taking unapproved leave and refusing to do her assigned duties. 

By this point, Ms Wang had returned to work. According to Ms Wang on her first day back, Ms Sceats’ husband had followed her shouting “Why you make things so f*cking difficult” and “you are fired, don’t you know you are fired.” She took personal leave after the incident but returned to work the following Monday. On her return she and Ms Sceats had a “slight physical altercation.” Ms Sceats claims that Ms Wang grabbed her arm when she was using Ms Wang’s mouse to see what she was working on. According to Ms Wang, Ms Sceats was staring over her shoulder and suddenly grabbed her mouse from her and pushed her. After the incident Ms Sceat sent Ms Wang an email alleging she had physically and aggressively grabbed and pushed her. Ms Wang’s employment was terminated on the 13th of April.  

Arguments and conclusion


According to Ms Wang, Instyle discriminated against her on the grounds of family and carer responsibility and pregnancy in accordance with s 340 of the Fair Work Act which provides that adverse action cannot be taken against someone because they exercised a workplace right. According to s 342, adverse action includes actions that injure the employee. Instyle argued that, apart from dismissing her, none of their other actions amounted to adverse action. 

The judge reasoned that Instyle had dismissed her because of her refusal to do work, not because she had been pregnant or taken parental leave. Ms Wang’s application was dismissed. 

Read the judgment


Wang v Sceats & Anor [2018] FCCA 2426 
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