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DISMISSED BECAUSE OF PREGNANCY?

Introduction

Despite the constant development of law and a greater understanding by the public as to how these laws work, employers continue to dismiss and discriminate against pregnant employees.

Dismissal on the ground of pregnancy is a serious matter and the financial consequences should not be underestimated by employers. As such both employees and employers should be aware of the way in which the laws in this area apply.

Prohibited ground for dismissal: Pregnancy

Pursuant to s 772 of the Fair Work Act 2009 (Cth) (“FWA”), pregnancy is expressly considered as a prohibited ground to dismiss an employee. Therefore, dismissal as a result of becoming pregnant or for reasons connected to pregnancy may be unlawful in two principal situations.

1. Where an employee is dismissed for being pregnant or for pregnancy related reasons, either during pregnancy or maternity leave.
   
2. Where an employer refuses to allow an employee on maternity leave to return to work. This is considered as a breach of the employee's right to return to work and would amount to an unlawful dismissal.

Onus of proof favourable to employees

An employer will rarely admit that an employee has been dismissed for being pregnant and therefore, an employee alleging unlawful termination does not need to prove that the termination was on grounds of pregnancy; the onus of proof shifts to the employer to demonstrate that the termination was not related to pregnancy.

Remedies available for unlawful termination

If you have been unlawfully dismissed from your employment, you will be entitled to compensation. There is no cap on the compensation that may be ordered under the FWA’s unlawful termination jurisdiction and compensation is available for shock, distress, humiliation, or other analogous hurt caused to the employee by the manner in which he or she was dismissed.

If it is shown that you have been terminated in relation to pregnancy, then this would constitute an unlawful dismissal and the remedies mentioned above would apply. Given the difficulty in showing that an employee has been terminated with respect to a pregnancy, it is important that you seek legal advice prior to taking any action. Therefore, if you believe that you have been dismissed for being pregnant, please contact us for further information. The content of this article is not to be taken as legal advice.