Childcare centre cops fine for pressuring pregnant employee to resign

By Cara Waters
Friday, 19 October 2012

The Federal Court has slapped a fine of $13,500 on the operator of a Perth childcare centre and it has been ordered to pay $5,000 compensation to an employee it pressured into resigning, ironically, after she became pregnant.


WKO, which operates the Dinky Di Child Care Centre at Innaloo, was ordered to cough up and Justice Michael Barker ordered the centre's manager and part-owner, Orieta O'Leary, to pay the penalty and compensation if the business fails to do so.


O'Leary admitted being responsible for WKO breaching the discrimination provisions of the Fair Work Act in relation to a 28-year-old full-time employee who became pregnant.


After O'Leary became aware the employee was pregnant, she reduced her hours, misrepresented to her that she was not entitled to parental leave and pressured her into resigning.


O'Leary admitted the conduct amounted to a constructive dismissal of the employee, for reasons including that the employee was pregnant and had proposed to take unpaid parental leave.


"An appropriate message needs to be sent not only to the contraveners in this case, but also to employers at large, that it is unlawful to terminate a woman's employment because she is pregnant," Justice Barker said.


Fair Work Ombudsman Nicholas Wilson says the penalty sends a message that failing to respect the rights of pregnant employees is a serious matter.


"It is the responsibility of employers to make sure they are aware of their obligations under workplace laws and that they treat workers fairly," Wilson said.


The case is the Fair Work Ombudsman's fourth litigation related to pregnancy discrimination. It follows the owner-operators of a Sydney printing business who were fined $23,760 for demoting and mistreating an employee after she told them she was pregnant and the recent prosecution of an aged care facility in Geelong, which allegedly discriminated against an employee when she attempted to return from maternity leave.


Marcus Clayton, head of employment law at Slater & Gordon, told SmartCompany that it was unlawful to discriminate against employees on the grounds of pregnancy or family or carer responsibilities under the Fair Work Act.


"That has been the law for a long time; it is unlawful under state and federal legislation," Clayton says.


"The Fair Work Act also provides that an employer can't take adverse action against an employee because they are seeking to exercise an employment right and that includes taking parental leave."


Clayton says the burden of proof lies with the employer rather than the employee.


"The employee does not have to show that the only reason the employer took the adverse action was because of pregnancy or taking leave. The employee only has to prove that it is one of the reasons," he says.


"It is up to the employer to prove that they did not do it."


Clayton says SMEs with employees who are pregnant or wanting to take parental leave have to be "very careful you are not taking action against her or him."


"As a childcare centre you would have thought, of all employers, they should understand the importance of employees not being disadvantaged because they have kids or are having kids," he says.


This story first appeared on SmartCompany.

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