Pregnant carer dismissed after a flexible work dispute: why she lost

What happened

Axel Talaugon was a contracts officer at Allight, which makes mobile lighting and power equipment at Landsdale in Perth. She started in February 2022, full-time, 38 hours a week.

She was the primary carer of her six-year-old daughter. Her husband worked fly-in fly-out in the state's north-west, and around the start of 2023 she became pregnant with her second child. She wanted to work around school drop-off, pick-up and after-school activities, making up her 7.6 hours a day from home.

A former manager had let her work from home on some days, but the judge found this informal arrangement was never put in writing and she was still expected in the office each morning.

The flexible work request

In January 2023 the company asked staff to formalise flexible arrangements under a new policy, and on 19 January Ms Talaugon made a written request.

At a meeting on 24 February 2023 she told her manager and an HR adviser that she was pregnant and had morning sickness. They asked for a medical certificate confirming she was fit to work, and questioned whether she could give her job her whole attention while caring for her daughter at home. Part-time work was raised; she said she needed to work full-time.

On 2 March she emailed her manager that he had been harassing her 'ever since I have become pregnant' and that she would escalate it to the Fair Work Ombudsman. By a letter of 21 March the company offered an arrangement she accepted: home on Mondays and Tuesdays, and the office from 9.15am to 2.00pm on Wednesday to Friday, finishing her hours from home.

From a performance meeting to dismissal

Since January her manager had told HR he did not know if or when she was working. HR advised a meeting and, depending on her response, a performance improvement plan. On 4 April she was invited to one.

The next morning she brought her daughter to work without permission and took her into a production meeting at the fabrication facility, where generators and lighting towers are built. When the HR adviser told her that was not allowed, the meeting became heated. The judge found she raised her voice 'to the point of shouting or yelling'.

She would not attend a meeting about that conduct and was given a written warning. The performance meeting was rescheduled several times; she said she would not attend until she had spoken to her lawyer. After a show cause meeting on 19 May 2023, the company dismissed her on 26 May with immediate effect.

The claims and the legal test

Representing herself, Ms Talaugon sued Allight and three of its staff in the Federal Court. She said the company breached the National Employment Standards (the minimum entitlements in the Fair Work Act 2009 (Cth)) over flexible work and leave. Her main claim was under the general protections: that she was dismissed because of her family or carer's responsibilities and pregnancy (s 351), and her complaints (s 340).

Section 351 bars an employer from taking adverse action, such as dismissal, against an employee because of pregnancy or family or carer's responsibilities, among other attributes. Under s 361, once the worker alleges that reason, the court presumes it is true unless the employer proves otherwise: the reverse onus.

Following the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay, the prohibited reason need not be the only one, but it must be 'a substantial or operative factor'. Merely considering someone's pregnancy is not enough. Where others advise the decision-maker, their reasons can count too.

Justice Feutrill accepted the evidence of the general manager who made the decision: she had repeatedly failed to engage with routine processes and had been disrespectful to colleagues. The judge then examined everyone in the chain. Her manager was 'somewhat irritated by and intolerant of' her and did not favour her flexible arrangement, but his concerns about communication and attendance were genuine and pre-dated his learning she was pregnant. HR's advice that he would need to 'manage' her before she could be replaced was not a plan to push her out.

No one, the judge found, was motivated by her caring role, pregnancy or complaints. Their primary motivation was that she was not complying with lawful and reasonable directions to attend meetings.

The flexible work and leave claims

Under s 65 as it stood in early 2023, a full-time employee could make a formal request only after 12 months' service, so she had no right to request before 3 February 2023. A request could be refused only on reasonable business grounds. The company's letters gave such grounds: splitting her shifts would cost efficiency and harm customer service.

The leave claims also failed. Her medical certificate said she was fit, so the days off to get it were not sick leave. Carer's leave under s 97 covers caring for an ill or injured family or household member, or one facing an unexpected emergency. Caring for a friend, or having no one to mind a well child, does not qualify.

What this means for you

The reverse onus helps workers but guarantees nothing: an employer can prove other reasons with credible evidence from the decision-maker, backed by emails written at the time.

If you are pregnant or a carer and in a dispute at work, it is usually worth raising your concerns while still attending meetings and following reasonable directions. Consider getting advice early: a general protections claim about a dismissal must be lodged within 21 days.