The Federal Circuit Court has decided a commercial real estate firm unlawfully fired an administrative assistant in the last week of her probation period because she was pregnant and took leave days to deal with illness, despite the company arguing work performance issues led to the dismissal.
According to court documents, the worker was employed by Burgess Rawson and Associates from December 2015, and learned she was pregnant in January 2016.
She informed her employers of her pregnancy at her three-month probation meeting in March 2016, at which point her boss, who was the leader of the valuations team, conceded he did not raise any issues about her performance.
The court heard that between March and her dismissal on June 3, 2016, the last working day before her probation period was set to expire on June 6, the staff member took seven days of sick leave and four days of annual leave because of morning sickness and hospital appointments. On these occasions she says she notified the employer in advance.
The worker was late to work by about five minutes around six or seven times over three months, the court heard, due to what was understood to be public transport delays.
Minutes from a directors meeting in April 2016 were also reviewed by the court, which mentioned the staff members name, followed by the words “6 months 6 June. Situation needs to be dealt with”.
The judge found that while the same meeting minutes made other references to staff members with performance concerns, she was the only one who apparently needed to be “dealt with”.
The worker’s team leader told the court that by May, he had made the decision to terminate her employment due to poor performance and poor punctuality. He said her pregnancy, leave days and intention to take maternity leave formed no part of the decision to dismiss, but also acknowledged he did not formally raise any concerns about performance with her prior to the dismissal.
The team leader also conceded that when he met with the employee on June 3 to impart news of her termination, he did not give further details about what performance concerns had arisen, but did say she was “unreliable”.
The worker claimed she was told: “Due to your current circumstances, your employment has become unreliable and we have decided not to continue with your employment”.
Despite denials the worker’s “circumstances” had been discussed in the dismissal meeting, Judge Heather Riley found it likely that this had taken place and that it “beggars belief” the worker’s employment could be considered “unreliable” on the basis of her being slightly late to work on a handful of occasions over three months.
The company had also raised concerns about the worker’s ability when it came to formatting valuation reports and ensuring consistency in valuation figures in these reports. However, the judge found this suggestion “preposterous”, saying errors in figures for valuation reports were the responsibility of the valuer who had prepared the numbers, not the administration assistant.
Riley ultimately found the worker was dismissed because “she was pregnant, she took personal leave, she took annual leave and she was temporarily absent from work due to illness or injury”, which amounted to breaches of the Fair Work Act. Compensation is yet to be determined.
SmartCompany contacted Burgess Rawson and Associates for comment but did not receive a response prior to publication. SmartCompany was unable to contact the employee prior to publication.
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Discrimination law applies in probation
Partner at Holding Redlich Rachel Drew says SMEs must keep in mind that while unfair dismissal legislation does not apply during probation periods, adverse action claims for discrimination against employees can still be brought against businesses during this time.
“The courts take more seriously dismissals that seem to be based on discriminatory reasons, so it’s very important for the employer to make decisions about dismissals consciously,” she says.
While it is possible that an employer might have a genuine reason to terminate an employment relationship at the end of a probation period, if the staff member also has an attribute that could lead to a discrimination claim, such as pregnancy, family responsibilities or disability, businesses need to distinguish the performance concerns clearly.
“The employer needs to make sure they are confident about what their reasons are for the dismissal. Then, the next step is then they need to make sure they have communicated what the expected standards are — and there needs to be some kind of reasoning,” says Drew.
Vanessa James-McPhee, an employment, IR and workplace safety senior associate at TressCox Lawyers, agrees, advising businesses to raise performance issues with staff at the moment they arise, rather than waiting for three- or six-month probation reviews.
“My recommendation is if deficiencies are identified, deal with it there and then. Don’t wait, it’s best to have that conversation right away, as difficult as it may be,” she says.
Employers should also take care that they make a record of the reasoning behind hiring processes, because adverse action claims for things like pregnancy can also arise from potential hires.
“Prospective employees can also make a claim, so if someone is pregnant and they’re not hired because of that, there is a chance they could bring an adverse action claim, and so it’s a good idea to document things all along the way,” says James-McPhee.