On 22 May 2020, the Fair Work Commission (FWC) found (in Liu v Compuworld Pty Ltd  FWC 2569) that, by dismissing their pregnant employee Ms Liu, an unlawful adverse action was taken against her by her employer, Compuworld.
Ms Liu worked for Compuworld Pty Ltd (Compuworld) for a little over 10 years as a Receptionist/Accounts Support staff on a full-time basis. The family run business generated income from the sale of business equipment.
On 30th November 2018, Ms Liu was terminated by Compuworld for reason of redundancy and she was offered the position of casual employment of which she declined.
Ms Liu made allegations that the decision to terminate her was unlawful on the basis of adverse action taken against her. According to the provisions of the Fair Work Act (the Act), she alleged Compuworld dismissed her because of the following reasons:
- She exercised her workplace right to seek medical appointments regarding her pregnancy;
- She was a pregnant employee and also suffered a physical disability (she had gestational diabetes); and
- Compuworld threatened to change her employment status from permanent full time to casual.
Ms Liu raised that she sought to exercise her workplace right of sick leave to attend medical appointments regarding her pregnancy and gestational diabetes. She further stated that the company was aware of her pregnancy and medical condition and the need for maternity leave and other award entitlements.
On 22 May 2020, the Commission found in favour of Ms Liu. They determined that she had workplace rights that she was entitled by law to exercise. The following was deliberated on by the Commission:
- Ms Liu exercised the right for paid leave and maternity leave and
- She had exercised the right to sick leave for treatment of gestational diabetes and
- She had informed her employer on 30th November 2018 of her maternity leave from end of February, early March 2019.
The Commission also determined that no offer of casual employment had been made and that Ms Liu’s dismissal was unlawful after deliberating on the findings of the case regarding unlawful termination. The Commission found that Compuworld did not discharge the onus in proving that they did not take adverse action against Ms Liu.
Ms Liu did not seek reinstatement of her employment at Compuworld but opted for compensation. She was awarded $52,100.00 for the following:
- Past economic loss
- Unpaid superannuation contributions
- Commonwealth government paid maternity leave and
The compensation also included $15,000 for non economic losses and damages suffered by Ms Liu.
On 21 August 2020, Compuworld’s appeal to the Full Bench of the Commission was denied. The commission had considered Compuworld’s economic situation however the adverse action of termination was still considered unlawful. The Commission concurred that there was no arguable case that the decision was tainted by legal or factual error. It was also not in the interest of the public to grant permission to appeal.
Managing employees especially those that are pregnant, have a disability or are vulnerable need to be handled with caution. Employers must be diligent in also dealing with employees that seek to exercise their workplace rights.
There are a number of ways to mitigate the chance of claims against the employer. These are, but are not limited to:
- Keep employees files updated;
- Ensure compliance with employment contracts, applicable awards and legislation; and
- Engage with employees early.
We offer some practical tips below:
Practical Tips for Employees
- Be mindful of sudden changes to your employment conditions.
- In situations where a redundancy offer is made with no clear reason seek to be consulted or have an opportunity for redeployment. If none of these options are available, it is advisable to speak to a lawyer.
- General Rule – If the change in your employment contract is unclear to you – do not sign it.
Practical Tips for Employers
- Treat employees fairly and follow all due process as per your company policy.
- Carefully consider your policy in terminating an employee to ensure that due process is followed.
- Ensure that training and education of your internal policies are regularly delivered.
- A non-considered approach has the potential to not only end in dispute but can cost a significant amount of money.
- If you need to change the role or contract of an employee, consult with the employee. If you are uncertain on process or anticipate that changes will be met with hostility, speak to a lawyer.
- If the company faces financial hardship, seek legal advice as well as financial advice before making decisions relating to your employees.
- Do not seek to terminate an employee based on vulnerabilities implied or otherwise. It will not only give rise to a general protection application, but it may lead to a discrimination claim as well.