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Pregnancy Discrimination

The court found that an employee had been "constructively dismissed" when placed into a position of decreased status when she returned to work from maternity leave.

Constructive dismissal refers to the unlawful termination of the employee, where the employee resigns as a result of treatment by their employer.

Legislative obligations

The federal Sex Discrimination Act 1983 states that it is unlawful for an employer to discriminate against an employee on the grounds of the employee's sex, marital status, pregnancy or potential pregnancy:

• in the terms or conditions of employment that the employer affords the employee;
• by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
• by dismissing the employee; or
• by subjecting the employee to any other detriment.

This means that an employer must not treat an employee less favourably because she has taken maternity leave. Less favourable treatment can include the transfer of a staff member to a lower level or position.

The Anti-Discrimination Act (NSW) 1977 confers similar obligations on employers in the treatment of staff returning to work from maternity leave.

In addition, the Industrial Relations Act (NSW) 1996 states that employees returning to work after a period of parental leave (either maternity or paternity leave) are entitled to be employed in the position held by the employee immediately before going on leave.

The Federal Court of Australia has recently handed down a decision relating to discrimination following pregnancy.

In the decision Ms T had been employed by the company Orica for 10 years as an account manager. Ms T applied for and was granted pregnancy leave for approximately 12 months. At the time of her applying for the leave, that is in February of 1999 it was alleged, that her manager was angry and disapproving of her application. It was alleged that at the time of her application the manager said that he "would never employ a female again", complaining further "now I have three women on maternity leave". Ms T had previously taken maternity leave whilst employed by Orica without difficulty.

In February 2000 shortly prior to Ms T's return to work, Ms T was informed by her manager that she would not be returned to her pre-maternity leave position.

On Ms T's resumption of employment in April of 2000 Ms T was offered a position in a different section of the company performing different tasks. The new position required Ms T to work in conjunction with other staff members including managers and perform a different range of duties and functions. It was found by the court in this circumstance that the variation of Ms T's duties constituted a significant alteration to the nature of her employment and as such constituted a constructive dismissal. His Honour Justice Alsop found "...Ms T was being given duties and responsibilities which amount to a clear demotion... Her position was extant. The tasks, duties and responsibilities which made up her position were being undertaken by a temporary employee... this conduct towards an experienced account manager, in effect moving her to Spectrum (with some additional duties) and requiring her to do telephone transactional selling, against a background of an angry and bad tempered discussion of her taking maternity leave in early 1999, was plainly conduct likely to damage to a serious degree, or destroy, the relationship of confidence and trust between employer and employee".

On the basis of the court's decision and indeed many others it is critically important that employers understand their obligations and responsibilities under the employment laws and regulations. It is important for employers to understand maternity leave, its provisions and the obligations imposed upon employers for the resumption of staff following pregnancy leave. If you require further information on this topic or related legal topics contact Bob Gillroy at Garrett Walmsley Madgwick, phone 6583 5266 or mobile 0412 656 030, or by email to bob.gillroy@gwmlaw.com.au

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