The kitten has nothing to do with this topic. It is cute though.
It is essential that when making decisions that affect employees, employers take into account provisions of the Fair Work Act 2009 (Cth) (“the Act”). Employers need to be aware that some decisions, which may seem reasonable to them and in the best interests of an employee, may offend the law.
The Federal Circuit Court in Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 (30 April 2014) found that a photography business had constructively dismissed an employee. The Court accepted the employee’s evidence that she felt she had no choice but to resign.
In this case, Ms Sagona informed her employer that she was pregnant and that she would be taking a period of parental leave. Upon receiving the notice that Ms Sagona was pregnant, the employer sought to alter her duties because:
- it was their belief that “it was not a good look” for customers to see a pregnant woman working in the business and, it would make the employer look like it was a “slave driver”;
- it was their belief that Ms Sagona would appear “desperate” if she worked while she was noticeably pregnant; and
- one of the directors of the employer was particularly concerned about Ms Sagona losing the baby if she continued to undertake her normal duties.
It is apparent that the decisions made by the employer were influenced by their own life experiences. The decisions and manner in which the employer sought to alter Ms Sagona’s duties, no matter how well meaning, was in breach of the law.
The Court held that in this case the employer had taken adverse action against Ms Sagona and awarded her compensation in the sum of $235,097.00.
The matter of Power v BOC Ltd & Ors [2017] FCCA 1868 (9 August 2017), concerned Ms Power whose position was made redundant as a result of a business restructure. She was one of eight redundancies. The other seven employees were to be made redundant on 12 November 2015. However Ms Power was due to commence parental leave on 6 November 2015. The employer decided to bring forward her termination date to 4 November 2015. The employer’s reason for bringing forward the decision was because it felt it would be unnecessarily stressful for Ms Power to be called in and told of the decision while taking parental leave.
The Federal Circuit Court found that the redundancy was genuine. However, the employer’s decision to bring Ms Power’s redundancy forward to two days prior to her taking parental leave amounted to unlawful adverse action because she was pregnant and was about to exercise her workplace right to take parental leave.
As a result of the decision to bring forward the termination date, Ms Power had lost her right to take parental leave, receive the paid parental leave provided by the company and the return to work guarantee.
Employee Protections – Exercising a Workplace Right
Sections 340 and 341 of the Act protect an employee from adverse treatment (for example, dismissal or a demotion) where the reason, or one of the reasons, for the employer’s action include that the employee has exercised a “workplace right”. It is complex area of law, that I often see employers get wrong and usually they meant well.
A workplace right includes any of the following:
- an employee making a complaint or enquiry in relation to his or her employment;
- an employee taking sick leave, annual leave, parental leave or carer’s leave;
- an employee being a member of the union;
- an employee taking protected industrial action;
- an employee undergoing proceedings either in Court or at the Fair Work Commission under Workplace Law or a Workplace Instrument.
The actual adverse action taken against the employee may be, for example:
- dismissal,
- issuing a written warning,
- reducing the status and/or responsibility of the employee,
- suspension from duties, or
- pressuring an employee to sign an individual flexibility agreement.
Examples of cases in which adverse action was found to have been taken by employers for a reason prohibited under the Act include:
- In Owens v Allied Express Transport Pty Ltd [2011] FWAFB 2929 (10 June 2011), an employer proposed a change in working conditions to accommodate an employee’s pregnancy. The employer and employee agreed that the employee would work in a less difficult role as the employee was pregnant. However, when the employer informed the employee that there would be significant reduction in salary for the new role, the employee refused to agree and regarded herself as having been dismissed. This was found to constitute a termination of employment at the initiative of the employer.
- In Silver v Rogers & Rogers (2012) 224 IR 439, the Applicant became unwell with pneumonia and golden staph and was subsequently off work for a significant period of time. His employment was terminated due to economic circumstances and health-related issues. The Court found that the Applicant’s physical disability and health issues were an operative reason for his dismissal.
- In Pavolvich v Atlantic Contractors Pty Ltd [2012] FMCA 1080 (26 October 2012), the Applicant was terminated because he was “always sick”. The Court found that the Applicant had been terminated due to his sickness, which was held to be a disability.
Conclusion
Even where a decision seems to an employer to be reasonable and in the best interests of the employee, it may be in breach of the Act. Employers should be very careful to ensure decisions made to alter an employee’s position, status, responsibility or other term of employment are not influenced by reasons prohibited under the Act.
If an employer is unsure about whether or not a decision is in breach of the Act, they should seek legal advice.