Employee successfully claims discrimination due to pregnancy

On: April 19, 2019

On 6 July 2017, the Federal Circuit Court of Australia determined an employer had taken unlawful adverse action in dismissing an employee because of her pregnancy.

Mrs Mahajan commenced work in December 2015 as an administration assistant with the Melbourne office of Burgess Rawson & Associates, a commercial property real estate agency.  In late January 2016, she found out she was pregnant.  At the end of her three-month probation meeting at which no performance concerns were raised, she told her employer of the pregnancy.

On the final hour of the final day of her probation period, Mrs Mahajan was called to a meeting with the company’s directors and dismissed.

Mrs Mahajan made a general protections claim against the employer, alleging that she was dismissed because she was pregnant, as well as other related reasons.  The matter went to trial on 5 May 2017 and a decision handed down on 6 July 2017 in favour of Mrs Mahajan.

The employer claimed that the real reason she was dismissed was because of “poor performance, particularly in relation to her role of formatting valuation reports and ensuring consistency in valuation figures in valuation reports” and “poor punctuality”.

The Judge did not accept the employer’s evidence in this respect.  Despite the employer’s denials, the Judge found that Mrs Mahajan was told in the dismissal meeting, “Due to your current circumstances, your employment has become unreliable and we have decided not to continue with your employment,” and that “due to your current circumstances” could only have been a reference to the pregnancy.

The Judge further stated:

It beggars belief that [the director of the employer] would have said that the applicant’s employment had become unreliable on the basis that she was a little late for work on six or seven occasions in a three month period in combination with some formatting issues that he had not previously raised with her in a formal manner.  It is also preposterous that the applicant could have been dismissed for not sometimes not picking up discrepancies in valuation figures.  The primary responsibility for that sort of error obviously lies with the valuer who prepared the report.

The Judge added:

It is also significant that the [employer] dismissed the applicant during the last hour of the last working day before her probation period ended.  If the applicant’s performance had genuinely been bad enough to dismiss her, the respondent could have been expected to dismiss her much earlier.

This case provides a timely reminder to employers:

  • Do not dismiss employees because they are pregnant, nor because they need to take time off due to their pregnancy;
  • Whilst an employee cannot make an unfair dismissal claim if they have been employed for less than six months, they can make a general protections claim if they have been dismissed for a prohibited reason (which includes discrimination);
  • If there are performance issues with an employee, raise them as and when they occur and ensure that this is properly documented;
  • Ensure that the dismissal letter makes the real reason for dismissal clear – and ensure that what is said during the dismissal meeting is consistent with this.

If you require any assistance with matters relating to employment law, please do not hesitate to get in touch.  Elise is currently ‘enjoying’ her own maternity leave but Tim is available to assist.

Case reference: Mahajan v Burgess Rawson & Associates Pty Ltd [2017] FCCA 1560