An employer that refused to redeploy or provide unpaid leave to a pregnant worker has been ordered to pay her nearly $40,000 compensation in an adverse action claim.

In Leutton v Sheralee Hotels Pty Ltd Trading As Imperial Tavern & Ors (2019), the Federal Circuit Court heard that the bottle shop attendant had worked for her employer for more than two years before she was summarily dismissed after becoming pregnant.

When the worker advised the bottle shop manager of her pregnancy, she told him she wanted to keep working in her position for as long as possible while she was pregnant. He replied with words to the effect of “I cannot tell you not to unload the van, as that is not fair on me, as I have enough to do”.

Keen to continuing working for her employer, the worker discovered that the adjoining bar was advertising for bar staff. The worker held a ‘Responsible Service of Alcohol’ certificate and had experience working behind a bar at two other licensed establishments.

The worker asked the assistant bar manager about the position who advised her it was still available.

Days later, the worker had a meeting with both the bottle shop manager and the head bar manager, where she provided them with a medical certificate from her GP stating she was unable to lift items heavier than 5kg.

The head bar manager then asked her what she wanted to do.

The worker responded that she wanted to go on “unpaid, no safe job leave” if she couldn’t continue working.

“We don’t do paid leave,” the head bar manager replied. The worker did not ask to go on paid leave.

The worker then asked if she would still have a job when she returned from maternity leave, to which the head bar manager responded she would have to see if there was a job available then.

The worker then suggested that she could work in the bar. She noted they were still advertising for bar staff and that the assistant bar manager told her pregnant women had been employed there before.

The head bar manager rejected this suggestion and said to the worker that a pregnant employee once had a miscarriage when she was working there.

The head bar manager further said it was a “bad look” for pregnant women to work behind the bar.

No-show doesn’t help managers’ case

Federal Circuit Court Judge Greg Egan said that by not appearing at the hearing, the managers had “waived their right to be heard”.

“There is no doubt that [the worker’s] employment was terminated because of her pregnancy,” Judge Egan said.

The employer had even put this in writing.

On a signed separation certificate, the head bar manager wrote:

“Due to pregnancy, [the worker] is unable to continue with her position as (a) bottle shop attendant.”

“Evidence given today by [the worker] was that she would have been prepared to remain working for the first respondent until the seventh month of her pregnancy. That means that she would have been able to continue in employment for a further five and a half months after her date of termination,” Judge Egan said.

Judge Egan ordered that the employer pay the worker $39,727.45 in compensation.

The amount awarded to the worker included reimbursement for her loss of earnings, with interest, a $15,000 payment for hurt and humiliation, and a $10,000 civil penalty for breaching the Fair Work Act.