Refusing a pregnant employee’s return to work – an adverse action prejudicial to employment for which employer meted civil penalty

Case background

The employer was a gourmet food distributor and it hired a sales executive full-time to visit customers to solicit orders. Her duties included driving for extended periods to visit their customers to solicit sales, lifting boxes of food and beverages as well as climbing stairs in performing her duties.

First pregnancy

The sales executive fell pregnant in November 2014 and informed her employer in February 2015. She asked permission to go on parental leave in June 2015 but she continued working and went on leave only on 10 July 2015 to give birth to her daughter.

Sometime in October 2015, the sales executive informed her Manager that she intended to return to work in November 2015 but that she would be able to work only part-time for two days every week, on Mondays and Fridays. The Manager directed her to report for work again on 27 November 2015.

First attempt to return to work part-time

Sometime on 13 November 2015, the sales executive emailed her Manager, asking confirmation of her return to work and asking for flexible work arrangements. She was not able to reach her Manager who had gone and got married abroad. She sent her Manager several emails but her did not respond to any of them until 26 November 2015.

Advised to return to work full-time

When the Manager finally responded, he gave the sales executive 7 reasons why her return to work part-time will not work out: her proposed work on Mondays and Fridays was unnecessary as the managers of groceries are usually on leave on Mondays and Fridays are their delivery dates; the company will not be able to hire a part-time employee to cover the three days when the sales executive will not report; having different sales executives attending to the same set of customers will only confuse the customers; the company cannot sustain any revenue loss; her position will remain vacant anyway until she returns full-time; and lastly, she has not yet submitted a medical certificate attesting to her fitness to return to work.

When the sales executive attended the Manager’s office, he flatly told the sales executive that she can only return to work if she returned to work full-time. The sales executive nominated the date of 4 April 2016 as her return to work on full-time basis. By that time, her baby would be able to stay in day care while she was away at work. Her manager sent her an email informing her that she will be most welcome to return to work on 4 April 2016.

Second attempt to return to work refused

In 4 March 2016, the sales executive emailed her manager that she will be returning to work on 4 April but she also asked to have Tuesdays off and just work extended hours on other days. She also informed him that she would be happy to discuss her return to work. The Manager did not reply.

On 11, 18 and 19 March 2016, the sales executive emailed her Manager informing him that she will return to work as they had agreed. As there was no response to these emails, the sales executive sent another email on 1 April 2016 asking her manager for a response. Later that day, her Manager sent her an email instructing her to return after she had delivered her baby and that her unpaid leave was extended.

Allegation of poor performance, failure to submit medical certificate

The sales executive then emailed her Manager informing her that she had spoken to Fair Work Australia who had informed her that she was entitled to return to work as per their agreement. The Manager replied that they had no such agreement. The Manager then accused the sales executive of forcibly bringing in her partner into the work premises and negotiating her return to work when no one was authorized to bind the employer in any agreement. The Manager informed the sales executive that because she had not complied with the directive to submit a medical certificate attesting to her fitness to return to work, she will not be able to report for work. She was then told to recollect that she had been previously advised of her poor performance.

Refusal to pay entitlements despite complaint at FWO

The sales executive applied to work as a part-time store assistant at a supermarket chain. Then, she went to the Fair Work Ombudsman. The FWO informed her that it had contacted her employer and that it may prosecute her employer for taking adverse action against her employment. In the meantime, the FWO advised the sales executive to submit to her Manager a medical certificate stating that she was fit to return to work. She then asked for the payment of her entitlements from 4 April 2016 when she was not allowed to return to work. She also informed her Manager that she intended to commence parental leave on 13 September 2016.

After meeting with the sales executive, her Manager refused to pay her. She was instructed to advise her Manager when she expected to work full-time and that upon her return to work, she will be directed to see a medical practitioner for Safe Job requirements.

Payment of entitlements on condition she resign

On 19 July 2020, the Manager met with the sales executive and agreed to pay her wages from 4 April 2016 until 19 July 2016 plus two weeks’ pay as payment in lieu of notice amounting to $14, 653.80. This was on condition that she resign and withdraw her complaints against her employer with the FWO.

The sales executive then informed the FWO about the agreement she had signed with her employer. The FWO then asked her if she was paid her accrued annual leave entitlements. The FWO then corresponded with her employer and they agreed to pay her an additional $2, 893.05. The employer also paid $1552.66 into her superannuation fund. In total, she received $19, 099.18

Civil penalty

Even after the sales executive had withdrawn her complaint, the FWO sought to make the employer pay civil penalties for contravening s351 of the Fair Work Act. The FWO argued that the Manager wilfully and knowingly contravened the law when he refused to allow the sales executive to return to work. Also, the FWO asked that the sales executive be compensated for non-economic loss she suffered because of her Manager’s hurtful words and his contravention of the Fair Work Act.

The Fair Work Commission than found that the sales executive endured more than the usual distress that companies most terminations of employment. She was led to believe that she would be welcome to return to work but her employer unilaterally changed their mind. Further, the Manager used unnecessarily harsh, threatening and combative language in his emails with the sales executive. She was awarded $2000. The employer was imposed a penalty of $15,500.00 and the Manager was made to pay a penalty of $2, 800.

Fair Work Ombudsman v Austrend International Pty Ltd (No 2) [2020] FCA 1193 (20 August 2020)