A cultural difference has led to the operators of a Victorian discount retailer being fined more than $53,000 for cutting the hours of a pregnant employee.
Appearing in the Federal Circuit Court were the owner-managers of Felix Corporation, Feiyue Hu and Jian Ping Hu, who operate the GV Bargains retail stores throughout regional Victoria.
The pair were fined a total of $40,920 and ordered to pay the employee $7197 for her economic and non-economic losses. The combined penalty of $53,592 is the largest ever achieved by the Fair Work Ombudsman in a discrimination case.
The affected employee had been a part-time shop assistant at a GV Bargains store in Shepparton, working on average 26 hours a week.
When she told her employer she was pregnant in December 2010, she was directed to take two weeks of unpaid leave, and when she refused, her hours were cut from 26 to less than 10 a week.
When she asked for additional hours, she was then instructed to look for another job.
Responding to the employee’s request, Feiyue told the employee, that it was a tradition in China for women not to work when they’re pregnant and that she did not want her working in the store.
The 22-year-old employee was also twice requested to obtain medial certificates to say she was “suitable” to work.
After meeting these requests she was offered some additional hours, but ultimately resigned in what was deemed a “constructive dismissal”.
A dismissal is considered constructive when an employee leaves of their own accord, but under circumstances where the employer has acted in a way toward the employee which affectively forces the employee to leave.
Workplace law expert Peter Vitale told SmartCompany migrants can struggle to understand Australian workplace obligations.
“For new people in Australia wanting to employ people, a lot of our laws are unfamiliar to them,” he says.
“Our legal system even has some differences compared to countries which have a common law system similar to ours.”
Vitale says this case is “unusual”; however, discrimination on the basis of pregnancy or carers’ requirements is generally more common than expected.
“You don’t see cases like this often, as justifying it on the basis of cultural preferences is unusual,” he says.
“There are an enormous number of prosecutions by the Ombudsman and so this is a message that employers should expect court action to lead to individual compensation as well as a fine, which when combined results in a substantial penalty.”
GV Bargains was also found to have contravened workplace law in relation to employment record obligations, a notice to produce records and written agreements for part-time employees.
GV Bargains was unable to be contacted.
Vitale says the continuation of this type of discrimination shows a lack of awareness.
“We don’t see as many cases these days of employers directly flouting the law, but cases like this show there is a gap between the employer’s cultural tradition and their knowledge of the law.
“A lot of these cases show there is still room, and there will continue to be room, for ongoing education of employers about their responsibilities.”
This is the fifth time the FWO has achieved a penalty for a pregnancy discrimination case.
Earlier this year the operators of the Bellarine Court aged care facility were fined a total of $30,888 for discriminating against an employee when she tried to return from maternity leave.
Last year the former operators of a Sydney-based printing business were also penalised more than $23,000 for sex and pregnancy discrimination when they mistreated and demoted an employee when she became pregnant.