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Adams Wilson Lawyers Wins Adverse Action Claim Involving Pregnant Employee

Adverse Action Costs Employer

Power v BOC Ltd & Ors

On 16 and 17 May 2017, Adams Wilson Lawyers successfully represented Ms. Caroline Power in the Federal Circuit Court of Australia in relation to a General Protections claim under the Fair Work Act 2009 (‘the Act’).

The claim concerned the decision of Ms. Power’s employer, BOC Limited, to make Ms. Power’s position redundant on 4 November 2015, a mere two days before she was due to go on approved maternity leave. Two days prior to her scheduled leave commencing, Ms. Power was invited to attend a meeting. She was told that the purpose of the meeting was to discuss the arrangements for her handover – but that was deceitful. The real purpose of the meeting was to inform her that her position was redundant with immediate effect.

The Court accepted that Ms. Power was one of 8 employees whose position was to be made redundant on 12 November 2015. Despite this, BOC decided to bring Ms. Power’s termination date forward to 4 November 2015 because she was pregnant, had applied (and been granted) maternity leave and was exercising her workplace right to take leave.

As a result of BOC’s decision, Ms. Power lost the benefit of the safeguards of the company’s redundancy policy. More importantly, it meant that she could not rely upon the return to work guarantee of section 84 of the Act which provides:

“on ending unpaid parental leave, an employee is entitled to return to:

(a) the employee’s pre-parental leave position; or

(b) if that position no longer exists – an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.”

These consequences amounted to BOC “altering the position of the Applicant to the Applicant’s prejudice” as is defined in section 342 of the Act. The bringing forward of the date of redundancy was adverse action and unlawful.

On 22 September 2017, the Court awarded Ms. Power the sum of $57,842.00, by way of compensation and pecuniary penalties.

Read: Adverse Action Costs Employer Over $220,000

Take Home Points

For Employees

If you are pregnant and worried about how your employer is treating you in the workplace, be proactive and seek legal advice from one of our Employment Lawyers. Pregnancy should be one of the most exciting times in your life, not the most stressful. It is imperative that you are properly informed about your workplace rights and options.

For Employers

BOC had policies and procedures in place, but they failed to use them. They handled the termination of Ms. Power’s employment extremely poorly. If you want to avoid ending up in a situation like BOC did, it is essential that you implement and follow fair and reasonable workplace practices. Not sure if your procedures hit the mark? Contact one of our Employment Lawyers today for specialised advice.

If you think your employer has taken adverse action against you, we can help. Find out more about Employment Law.  

If you are an employer and would like to implement measures into your business to ensure you comply with the Fair Work Act 2009, contact our office for advice.