Employer cites contravention of parental leave policy despite high-risk pregnancy
The Federal Circuit and Family Court of Australia (FCFCOA) recently dealt with the case of a pregnant employee who said she was unfairly dismissed from work because she asked for an extended leave.
The employee started working as the Human Resources manager for the employer in September 2021. Her contract had the following key provisions:
- She was employed on a permanent part-time basis;
- She had an initial six-month probationary period, where the employer would “assess the suitability of continuing employment, and either party could terminate employment by providing one week’s notice”;
- She may be entitled to parental leave following the National Employment Standards (NES) as outlined in the FW Act. The company had a parental leave policy that said an “eligible employee is entitled up to 12 months unpaid parental leave,” which is associated with the birth of the child to the employee (among others);
- Following any probationary period, her employment may be terminated at any time for any reason by providing the notice specified in the contract.
She participated in her first probationary meeting and was rated 4 out of 5. Her performance was generally praised, and no performance issues were raised.
Informing management that she was pregnant
In November 2021, she informed the managing partner that she was pregnant and it was subject to complications. She said her doctors characterised it as “high risk.”
She said there was “a high chance of medical termination up until birth” and “there was a chance of a high ongoing risk to her child into the post-natal period.”
They had a lot of talks about her pregnancy, possible leave, and backfilling options. The managing partner “showed concern” and said the management “would support her.”
She said the managing partner “verbally advised her” that her request for leave would be supported and that he had approved at least a six-month “backfill” for her position.
He also asked the employee to give them a “maternity plan,” including the time requested and options to fill her roles.
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Later, the employee received medical advice that her baby would require surgery after birth and that she was also scheduled for an induced birth.
The employee wrote a letter and took up the offer of the managing partner to write a leave proposal, and said:
“As part of my maternity plan, my last day would be the 17th of March. As I don’t know the recovery time of the baby, I would like to request to have 12 months off and if he is ready earlier than I can come back earlier, at least the 12 months gives me time to work in with him as there is still a lot of unknowns and alleviate a little of the stress.”
The meeting with the employer’s management
After a series of exchanges, the employee was called to attend a meeting with a few members of senior management. Both sides have different recollections of what happened, but the employer said the conversation had the following points:
Management: “We would like to discuss your email request for leave. We are aware that the request for maternity leave is not in accordance with the NES as you have been with us for less than 12 months and so you are not entitled to maternity leave. The approval of leave would not be in accordance with our policies. We are concerned with the optics if we were to go against our policies to grant leave to the HR Manager [who is a member of the senior management team].”
Employee: “I understand that technically I am not entitled to maternity leave but in all the organisations I have worked for it has been common practice to grant the leave.”
Management: “We believe that this is a contravention of our parental leave policy and would not be appropriate as we have rejected leave requests in the past.”
Employee: “I’m not sure I understand.”
Management: “At this stage, we are not approving your maternity leave request.”
The employer emphasised the HR Manager role is “a key position for the organisation,” and that it “needs stability in that role.”
“We are concerned about the rotation of personnel through the position. We don’t need a revolving door of HR managers with [someone] in the position for 12 months as you propose. We need to have this position filled on a permanent basis,” they said.
Meanwhile, the employee recalled a different version of the meeting, with the following highlights:
Management: “You are on the cusp of six months so we can still legally terminate you. The HR manager role is a key position. We will be replacing your role, we’ve decided to go to market to look for a permanent replacement.”
Employee: “I’m pretty confused as I have already provided you with a solution. [Someone] could backfill my role while I took unpaid leave, I have to birth my child.”
Management: “You can resign, and let us know when you want ... your end date to be.”
Employee: “I don’t want to resign. It’s my substantive position and I’m confused as you just told me I have performed so well, but you’re replacing me? That doesn’t make any sense, I have other leave I could take, including carer’s leave for my son, I can even provide you with a medical certificate from the neonatal team. I am open to making this work and if he is ready earlier, I can come back earlier. I will know more after he is born, and I am happy to have this conversation with you after I have more information, also as I have consistently discussed this with [the managing partner].”
Management: “We understand there are complications with the baby so go away and have your babies and call us when you are done to see if there are any jobs. We understand that this is unexpected. Would you like to consider this overnight and discuss with us tomorrow?”
Employee: “There doesn’t seem to be any point in that is there? It is clear that you have made up your minds that I no longer have a position in the company. In all my conversations with [the managing partner], he never indicated that this would happen he was always supportive.”
The employee’s lawyer argued that in the meeting, “the only option presented to her was to resign, and to contact [the employer] once she no longer had carer’s responsibilities to see if any positions were available.”
“She understood that if she did not resign her position would be terminated, and that the company had decided to recruit a permanent replacement for her,” the lawyer said.
The parties’ further email exchanges
Both parties clarified the matters further, and the employee asked if the management could reconsider.
The employer tried to clarify its side with the following email:
“We just firstly need to clarify that we were meeting to discuss your request for leave, not your probation period or performance.”
“The firm has decided not to grant your request for leave. As also discussed, HR is a key element of our business, and the Head of HR is a critical role. Our decision is driven by the business need for a HR Manager and given the current and imminent work required to be managed and undertaken by the HR team, 12 months is too long a time to have the position open.”
“Accordingly, you are not being told to resign, but you are not being granted leave you have sought. It is a matter entirely up to you what you decide to do.”
The employee responded with:
“I have never indicated any intention to resign. Giving birth is not resigning. Making enquiries about whether I will be afforded unpaid parental leave is not resigning. I have entitlements to leave which would have enabled me to give birth and return to work. I have been open and transparent in relation to my pregnancy during my employment and have had numerous discussions with my direct manager. He told me I would be supported with leave, and asked I put forward a maternity leave proposal for discussion. Your claim that you’re terminating me is due to operational or commercial needs is quite clearly a lie.”
“It is clear you are not willing to find a solution that could work for both parties and instead are using my pregnancy to force me to resign. So yes, I accept your decision to terminate me.”
The employee then filed a lawsuit, alleging her termination was unlawful because it was “adverse action taken” because she was pregnant and that the dismissal was effected “to prevent her access to accrued personal leave and/or carer’s leave and/or annual leave to support her pregnancy/ childbirth.”
HRD previously reported that a worker in the UK who was fired while pregnant had been awarded £40,000 (approx. $AU 72,000) in her unfair dismissal claim. The case alleged instances of harassment and discrimination because of her pregnancy and cited instances in which the employee was denied leave requests in order to visit her doctor.
In another case, an employer was found to have breached the Fair Work Act when it took adverse action against an employee because of her sex and pregnancy by refusing to allow her to return to work after a period of unpaid leave to have and care for her first child.
The court’s decision
“Based on the evidence, the only request for leave the employee made was that she be granted 12 months unpaid parental leave with the possibility of her returning before the 12 month period, depending on the progress of her child,” the court said in its decision.
“She offered no alternative proposal with which the senior management could have engaged.”
“The latter even offered to discuss the matter further, but she decided not to meet them. Instead, she sent an email in which she said she was hopeful they would be more accommodating; that she would have her permanent job to come back to; and she asked whether there was ‘any chance that you would reconsider.’ It is plain that in this email she was asking the employer to reconsider its decision not to grant her request. However, she did not present any alternative request for unpaid parental leave,” the court added.
Was there ‘forced resignation’?
“What forced her to resign from her employment was, as she herself submits, her not being in a position to continue with her employment,” the court said.
“It is true that, if the employer had agreed to grant her request, she would not have ended her employment relationship. But that does not alter the fact that it was her inability to continue with her employment that forced her to end the employment relationship.”
“She had a choice to make. Either she could resign; or she could remain in employment and seek to access whatever legal rights she had to parental, carer’s, and other leave to deal with the substantial challenges she expected to face after giving birth. The necessity for her to choose between these two options, however, was not brought about by any conduct on the part of the employer,” the court explained.
And so, ultimately, the court said the employer “was under no legal obligation to grant her the 12 months unpaid parental leave she requested.”
Thus, they said she could not successfully claim that there was forced resignation or unfair dismissal.