Was it discrimination or a justified safety concern? FWC settles disputes
The Fair Work Commission (FWC) recently dealt with a general protections dispute where a pregnant casual worker argued she was unlawfully dismissed.
The worker claimed her employer terminated her employment after stating "As you are pregnant, I have to let you go," following a workplace incident involving safety concerns.
The worker alleged that after refusing to move a heavy crate that could pose risk to her unborn child, the employer expressed frustration and ultimately dismissed her at the end of her next shift. She maintained there was no discussion about future shifts or any possibility of continued employment after their final meeting.
The employer strongly contested these claims, arguing no dismissal had occurred at all. This dispute required the FWC to determine whether a dismissal had actually taken place under section 386 of the Fair Work Act 2009 before it could consider the merits of the worker's general protections claim.
The case involved a casual worker employed at a motel from August 2024. The employer, who was also the motel owner, described this period as a three-month trial. Events on 25 and 26 September 2024 led to the dispute, with the latter being the worker's final day at the motel.
On 25 September, the employer said he saw the worker carrying four two-litre bottles of milk at once. He testified that he told her to take one bottle at a time and use a trolley. According to the employer, the worker insisted on carrying the bottles her way rather than following this safety instruction.
The worker, who was pregnant, offered a different account. She said she had been told to move a crate with nine two-litre milk bottles weighing 18 kilograms from a shoulder-height shelf. She told the employer that pulling down such a heavy crate could risk her health and her unborn child's, so she removed four bottles at a time instead.
Under cross-examination, the worker acknowledged she had been told to lift one bottle at a time from the shelf and put them in the trolley. She also accepted that she carried the four bottles to the fridge rather than transporting them in the trolley.
On 26 September, after completing her shift, the worker and employer had a meeting where their accounts diverged significantly. This meeting was central to determining whether a dismissal had occurred.
The worker testified that the employer told her: "You will need to lift heavy items eventually while you are working here" and "As you are pregnant, I have to let you go." She stated there was no discussion about future work.
Under cross-examination, the worker added that the employer had expressed concern that the previous day's incident had scared him and he did not want to risk hurting her baby. She claimed he told her that because she was pregnant and would eventually have to lift heavy items, he would "have to let her go."
The employer denied making these statements. He claimed he told the worker that if the unsafe work practice continued, "they would have to call it quits," after which she stood up and left. He said he assumed she needed time "to cool off" and would return when ready.
After hearing both accounts, the Commissioner found reason to prefer the employer's version of events despite both witnesses appearing forthright.
The Commissioner noted that just days before the disputed meeting, the parties had discussed arrangements for the worker to continue working until Christmas or beyond, as her pregnancy allowed. This contradicted the claim of a pregnancy-based dismissal.
The Commissioner stated: "It seems less likely that [the employer] would dismiss her for being pregnant a few days later, than that [the employer] would raise safety concerns with her and put her on notice she would have to work safely, or she would not remain employed there."
The worker's testimony contained inconsistencies. While her written statement claimed she was told to move a heavy crate, under cross-examination she acknowledged the employer had asked her to take down one bottle at a time and use the trolley.
Neither party communicated effectively after their final meeting. The employer didn't contact the worker to ask if she was returning, and the worker didn't contact the employer to confirm if she had been "let go."
The Commissioner explicitly noted this communication failure, stating: "I accept that there was time for [the employer] to speak with [the worker] further while she was packing up to leave, but did not do so. I also accept that [the employer] could have but did not contact [the worker] in the days following 26 September to ask whether she was returning to work... Neither party communicated well, and if either party had done so then the Commission might not have been called upon to decide whether [the worker] had been dismissed."
When asked why she hadn't requested a termination letter or separation certificate, the worker referenced the employer claiming she had resigned. However, evidence showed the employer had made no such claim before receiving the FWC application.
The Commissioner ultimately concluded: "[The worker] was not dismissed within the meaning of that term for the purposes of section 386 of the Fair Work Act." As a result, the application was dismissed for lack of jurisdiction.
For the FWC to have jurisdiction over a general protections dispute involving dismissal, section 386 requires either termination on the employer's initiative or forced resignation due to employer conduct. The Commissioner found neither had occurred.
The employer provided documents from the late 1990s demonstrating his commitment to workplace safety, including a certificate regarding ten years without a lost time injury from 1989 to 1999, which may have added credibility to his focus on safe work practices.
During cross-examination, the worker claimed the employer had expressed frustration about her pregnancy several times, but could only point to one instance which occurred after she had filed her application with the FWC.
The Commissioner's final ruling stated: "[The worker's] application is dismissed for want of jurisdiction." This case demonstrates how different interpretations of a conversation can create significant misunderstandings about employment status when neither party follows up to clarify.
