Preparing for an employee’s pregnancy or maternity leave is a process that needs to be taken carefully and thoughtfully. Employers need to be considerate of a pregnant employee and support them during this time, aside from ordinary duties of care which an employer may owe to an employee.  

Discriminatory behaviour can arise when a decision is made about an employee, and the reason or a substantial part of the reason for that decision is because the employee is pregnant or because of their child caring responsibilities.

Examples of these decisions are:

  • Change in work status (full-time/ part-time/ casual);
  • Change in job title;
  • Change in responsibilities; and
  • Change in job description/ daily tasks.

Dismissal and discrimination on the grounds of pregnancy is a serious issue, and is still very common in the workplace. The decisions in two recent cases demonstrate how decisions regarding a pregnant employee’s work, and the general way in which the employee was treated lead to successful discrimination claims.  

Ucchino v Acorp Pty Ltd [2012] FMCA 9

Ms Ucchino was employed at Acorp Pty Ltd (Acorp) as a director of one of the company’s child care centres. Ms Ucchino’s position changed from permanent to casual and she was eventually terminated as a result of her pregnancy and childcare responsibilities.

Ms Ucchino bought a claim pursuant to s351 of the Fair Work Act alleging that Acorp dismissed her because she was pregnant and needed to take time off on the school holidays to care for her children.

In December 2009, Ms Ucchino told Acorp she required assistance to look after her children during the school holidays. Ms Ucchino asked if they could come to the centre while she was working. Acorp did not approve this and it was agreed between both parties that Ms Ucchino would take leave without pay during the school holidays.

Later that month, Ms Ucchino informed Acorp that she was pregnant and that she would take maternity leave in June the following year. When Ms Ucchino returned to work the following January her position had been changed from director to “staff relief float”  

Acorp and Ms Ucchino then had a meeting; the nature of the meeting is in dispute by both parties. In the meeting Ms Ucchino’s performance related issues were discussed, and Acorp stated that her position would be changed to casual. Ms Ucchino responded to this by letter, stating that she did not agree to the changes in her employment. Acorp responded to the letter by effectively terminated Ms Ucchino’s employment.  

Acorp held that the reasons for the change in Ms Ucchino’s position were because of performance related issues. They claimed that Ms Ucchino’s poor performance, poor interpersonal skills, lack of leadership, complaints and inordinate amounts of time off were the reason for her dismissal.  

These issues were not raised in a meaningful way with Ms Ucchino and she was not given a chance to respond to any of the allegations.

The Federal Magistrate’s Court stated that Acorp failed to discharge the onus that it did not take adverse action against Ms Ucchino. Ms Ucchino was awarded $14,456.60 in damages.  

Cincotta v Sunnyhaven Ltd [2012] FMCA 110

Ms Cincotta was awarded $44,000 in damages for being discriminated against by her employer Sunnyhaven Limited (Sunnyhaven) because of her pregnancy and childcare responsibilities.

Ms Cincotta was systematically discriminated against by Sunnyhaven. Many changes were made regarding Ms Cincotta’s employment. These changes were made because of her pregnancy and childcare responsibilities.  

Ms Cincotta was appointed to a senior position at Sunnyhaven. However, this position was not made permanent and her contract was not renewed because of her pregnancy.

When returning from maternity leave, Ms Cincotta was employed in her previous substantive position, but in a casual position not part-time permanent. She did not receive regular shifts and shifts would often be cancelled on little notice. Ms Cincotta’s employment ended when she was constructively dismissed.  

After being dismissed, Ms Cincotta made a complaint to the board of Sunnyhaven. The board failed to properly respond to the complaint or provide any resolution to the dispute. It was held that the board was partially responsible for the discriminatory treatment and they were instructed to provide a formal apology to Ms Cincotta.

Sunnyhaven were ordered to pay $29,829 to Ms Cincotta in Damages as well as $9,000 in General Damages. General Damages were awarded to Ms Cincotta as she claimed to have felt “rejected” and “worthless” within the organisation. These feelings were made worse by what she believed to be a change in her colleagues’ attitudes towards her. She stated that she felt “embarrassed to be pregnant” and these feelings caused her to go on maternity leave earlier. It was noted that a lie Ms Cincotta made about her qualifications may have contributed to this stress.

Conclusion

The above cases outline how important it is for employers to be conscious of how they deal with pregnant employees. Employers need to be aware that any decisions they make because of an employee’s pregnancy or child caring responsibilities may be seen as discriminatory.

It is important that employers realise the financial consequences that may eventuate if a pregnant employee is discriminated against. Employers should focus on providing a work environment that is free from discrimination, generally, and take steps to ensure that pregnant employees are dealt with in a fair and just way. By doing this, employers can reduce the risk of discrimination and adverse action claims.