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It’s supposed to be an exciting and joyful time in a person’s life, but when it comes to the workplace, too many women still face discrimination for getting pregnant.

It is against the law for employers to discriminate against an employee on the basis of pregnancy, potential pregnancy, family responsibilities and breastfeeding.

Even so, many new mums and mums-to-be report being disadvantaged at work, whether it’s having their hours reduced, their role changed, or even losing their job.

The Law

All employees are protected by the Sex Discrimination Act.  

Provisions in the Fair Work Act relating to parental leave and related entitlements apply to all employees in Australia.

Workers are also protected by various state and territory anti-discrimination legislation.

What is pregnancy or return to work discrimination?

Discrimination occurs when an employee is treated less favourably or disadvantaged because of pregnancy, potential pregnancy, breastfeeding or family responsibilities.

For example, not allocating a project to an employee who is pregnant because of an assumption that she will be unable to concentrate and unable to complete certain tasks.

Other examples can include:

  • Firing or refusing to hire women based on their pregnancy
  • Failing to allow parental leave
  • Refusing to promote an employee who is pregnant
  • Refusing to create a flexible working arrangement on return to work, such as refusal of part-time work
  • Changing a worker’s role to their disadvantage while they are on maternity leave
  • Sacking a worker who falls pregnant during probationary periods

Maternity and paternity leave

Employees can get parental leave when a child is born or adopted.  Parental leave entitlements include:

  • maternity leave
  • paternity and partner leave
  • adoption leave
  • a right to return to old job

What is parental leave?

Parental leave is leave that can be taken when:

  • an employee gives birth
  • an employee’s spouse or partner gives birth
  • an employee adopts a child under 16 years of age

Employees are entitled to 12 months of unpaid leave.  They can also request an additional 12 months of leave.

Who is eligible for parental leave?

All employees in Australia are entitled to parental leave.

Employees are able to take parental leave if they:

  • have worked for their employer for at least 12 months
  • have or will have responsibility for the care of a child

If you are a casual employee, you will need to have been working for your employer on a regular and systematic basis for as least 12 months, and have a reasonable expectation of continuing work with the employer on a regular and systematic basis, had it not been for the borth of a adoption of a child.

What if you are having another child?

Employers who have taken parental leave don’t have to work for another 12 months before they can take another period of leave with that same employer.

However if they have started work with a new employer they will need to work with that employer for at least 12 months before they can take parental leave.

It is against the law for employers to discriminate against an employee on the basis of pregnancy, potential pregnancy, family responsibilities and breastfeeding.

Flexibility in the workplace

Flexibility in the workplace allows employers to make arrangements about working conditions that suit them.  This helps employees maintain a work/life balance and can help employers improve productivity and efficiency of their business.

As long as employees are still receiving their minimum entitlements, employers and employees can negotiate ways to make their workplace more flexible.

For example changing what hours are works and where work is performed.

What should you do if you believe you are being discriminated against because of pregnancy?

If you believe you have been unfairly treated or even if you have lost your job because of pregnancy, you can contact the Fair Work Commission.  You have 21 days from the day you were sacked to lodge an application with the Commission.

You can also contact an employee advocacy firm like Discrimination Claims, which can represent you in any dealings with your employer or the Commission.

A case study

Tifany Mahajan started working an an administrative assistant at real estate agency Burgess Rawson & Associates on 7 December 2015.  In January 2016, she learned she was pregnant.  She told her boss in early March.  On the final day of her probation period – she was fired.

According to a report on workplaceinfo.com.au, at her termination meeting Mrs Mahajan was told, “due to your current circumstances, your employment has become unreliable and we have decided not to continue with your employment.”

Tifany Mahajan, unlawfully sacked for getting pregnant.

Mrs Mahajan filed a complaint in the Federal Circuit Court of Australia alleging that her former employer had acted unlawfully in dismissing her for taking leave, and for being pregnant.

The company denied that she was dismissed for these reasons, instead claiming the employment was terminated on the grounds of unsatisfactory performance and lack of punctuality.

But Judge Heather Riley didn’t buy it, describing the real estate company’s actions as “preposterous”.

The Judge dismissed the employer’s denial that Mrs Mahajan had been dismissed because of her pregnancy as “not credible”.

She pointed to the comment made to Mrs Mahajan at termination that “due to your current circumstances” could only have referred to her pregnancy.

Judge Riley added that the failure to raise performance issues with Mrs Mahajan during her employment tended to undermine the credibility of allegations about her performance that were raised for the first time after her dismissal.

It was also significant, she held, that the company dismissed the applicant during the last working hour on the last day before her probation period ended.

“If the applicant’s performance had genuinely been bad enough to dismiss her, the [employer] could have been expected to dismiss her much earlier,” the judge ruled.

Judge Riley ruled that Mrs Mahajan’s pregnancy, and her absences for personal and annual leave because of her pregnancy, were the significant and substantial reason for Burgess Rawson & Associates terminating her employment.

Accordingly, it was held that the company had dismissed Mrs Mahajan because she took personal and annual leave, and because she was pregnant.

The dismissal was ruled to be unlawful.

If you believe you have been discriminated against because of pregnancy or maternity or parental leave, you may be entitled to compensation.  Please contact Discrimination Claims on 1300 853 837 for expert and confidential advice about your situation.

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