Employer refuses to offer new contract after lawyer's pregnancy announcement
The Civil and Administrative Tribunal of New South Wales recently dealt with an appeal regarding a case of alleged unlawful discrimination.
The worker, a solicitor who had been employed by the employer through a series of back-to-back short-term contracts, claimed that the employer's conduct amounted to indirect discrimination on the grounds of pregnancy, sex, or carer's responsibilities.
The Tribunal had to determine whether the employer's decision not to offer the worker further temporary employment contracts immediately following the expiry of her previous contracts, at the times of her pregnancies, constituted unlawful discrimination under the Anti-Discrimination Act 1997 (NSW).
The worker argued that the employer's actions subjected her to detriment and that she was treated less favourably due to her pregnancy and carer's responsibilities.
Background and context
The worker was initially employed by the employer from May 2018 on a part-time basis, working in the Civil Law Service for Aboriginal Communities (CLSAC) within the Civil Law Division, undertaking funeral insurance work.
Her role was later converted to a full-time position due to an increased workload. She continued to work under a series of temporary employment contracts until January 2020.
During her employment, the worker became pregnant and disclosed her pregnancy to the employer in November 2019. At that time, she was entitled to 14 weeks of paid maternity leave, but only for the duration of her employment with the employer.
The worker requested that she be offered a new employment contract at the end of her current contract, which would allow her to take paid maternity leave, further unpaid leave, and then resume duties in September 2020. However, the employer refused this request, and the worker's employment ended in January 2020.
In February 2021, the worker was offered and entered into a new series of fixed-term contracts with the employer. In September 2021, during her second pregnancy, she sought and took personal leave from 8 October 2021.
Her employment expired in January 2022 while she was on leave, and she was not entitled to paid maternity leave as she had not completed more than 12 months of continuous service.
The parties’ arguments
The worker said that the employer imposed a condition or requirement that she not take leave related to pregnancy or caring for children to receive offers of temporary employment around the time of giving birth or becoming a carer.
She argued that this requirement was unreasonable and that a substantially higher proportion of men or people without such responsibilities could comply with it.
In response, the employer maintained that there was no requirement for the worker not to take leave related to pregnancy or caring for children.
The employer argued that after the worker's contracts expired, she was not employed and, therefore, not on "leave." The employer claimed that it had accepted that the worker would not be available to enter into employment again until some time in the future.
Is it pregnancy discrimination?
The Tribunal found that the worker's temporary employment during the relevant period was not an ongoing funded role or position. It accepted that the employer regarded having a temporary employee undertake that work as not a long-term or sustainable solution because it was not funded.
The Tribunal noted that by June 2019, towards the end of the worker's employment in the insurance work role, there remained a need for someone to perform the work as the matters handled had remained high and become more complex.
The employer had an available senior employee solicitor who was competent, experienced, and in a permanently funded position who could perform the work and wished to do so, although he had to transfer from another office to achieve that.
The Tribunal also noted that the worker had accrued an entitlement to 14 weeks of paid leave at the time of her first pregnancy. However, the employer was not obliged to pay out any unused leave at the end of the temporary employment contract, which was due to expire on 3 January 2020.
Regarding the issue of indirect discrimination, the Tribunal stated:
"The conditions or requirements as framed are, in our view, flawed. There was no requirement that the [worker] 'not take leave' related to pregnancy or caring for her children. There was no requirement that the [worker] t not take leave related to pregnancy or caring for children in order to receive offers of temporary employment covering periods of time around and immediately after giving birth."
The Tribunal further explained:
"[The employer] argues that the complaint is truly directed at the fact that the [worker] was not offered notional employment during periods in which she was not, as far as [the employer] knew, ready, willing, or able to perform any work. That was, it argues, unavailability rather than her taking leave per se. We accept that contention."
Ultimately, the Tribunal dismissed the worker's appeal, finding that the employer had not imposed the alleged condition or requirement. The Tribunal concluded:
"In light of the above evidence and the Tribunal's acceptance of such evidence, it is plain to us that it was open to the Tribunal to find that it was reasonable of [the employer] to require the [worker] to be available to work in order to have a new temporary contract bestowed upon her."
The Tribunal emphasised that the reasonableness of the employer's actions must be determined by reference to the specific circumstances of the case:
"Whether or not the findings of the Tribunal on reasonableness were open to it do not involve questions of law. We note the facts found by the Tribunal which were not in dispute on the evidence before it."
The Tribunal accepted the evidence of the employer's manager, who stated that the worker's proposal "to create a new role offering it to her on a new contract and that the [worker] would then immediately go on leave whilst [the employer] kept the role vacant or employed someone on a temporary backfill position" was not considered "feasible from a budgetary or operational perspective" and "was not in the interests of the Civil Law Division, [the employer] or [its] clients."
In summary, the Tribunal found that the employer's decision not to offer the worker further temporary employment contracts immediately following the expiry of her previous contracts did not amount to unlawful discrimination under the Anti-Discrimination Act 1997 (NSW). The solicitor’s appeal was dismissed.
