Court Finds Real Estate Firm Unlawfully Sacked Employee for Pregnancy

In the case of Mahajan v Burgess Rawson & Associates Pty Ltd [2017] FCCA 1560 (6 July 2017), the Federal Circuit Court (Melbourne) has decided a commercial real estate firm unlawfully dismissed an administrative assistant in the last week of her probation period because she was pregnant and took leave days to deal with illness, despite the company arguing work performance issues led to the dismissal.

Background to the Case

The applicant was employed by Burgess Rawson and Associates (the respondent) from December 2015, and learned she was pregnant in January 2016. She informed her employers of her pregnancy at her three-month probation meeting in March 2016, at which point her boss, who was the leader of the valuations team, conceded he did not raise any issues about her performance.

The court heard that between March 2016 and her dismissal on 3 June 2016, the last working day before her probation period was set to expire on 6 June 2016, the employee took seven days of sick leave and four days of annual leave because of morning sickness and hospital appointments. On these occasions she says she notified the employer in advance.

The employee was late to work by about five minutes around six or seven occasions over three months, the court heard, due to what was understood to be public transport delays. Minutes from a directors meeting in April 2016 were also reviewed by the court, which mentioned the employee’s name, followed by the words “6 months 6 June. Situation needs to be dealt with”.

The Judgment

In her judgment, Riley J found that while the same meeting minutes made other references to staff members with performance concerns, she was the only one who apparently needed to be “dealt with”.

The applicant’s team leader told the court that by May 2016, he had made the decision to terminate her employment due to poor performance and poor punctuality. He said her pregnancy, leave days and intention to take maternity leave formed no part of the decision to dismiss, but also acknowledged he did not formally raise any concerns about performance with her prior to the dismissal.

The team leader also conceded that when he met with the employee on 3 June 2016 to impart news of her termination, he did not give further details about what performance concerns had arisen, but did say she was “unreliable”.

Reaction from the Employee

The employee claimed she was told [at para 69]:

Despite denials the employee’s “circumstances” had been discussed in the dismissal meeting, Riley J found it likely that this had taken place and that it “beggars belief” the worker’s employment could be considered “unreliable” on the basis of her being slightly late to work on a handful of occasions over three months.

Alleged Concerns about the Employee’s Skills

The company had also raised concerns about the employee’s ability when it came to formatting valuation reports and ensuring consistency in valuation figures in these reports. However, in her judgment, Judge Heather Riley found this suggestion “preposterous”, saying errors in figures for valuation reports were the responsibility of the valuer who had prepared the numbers, not the administration assistant. Her Honour ultimately found the employee was dismissed because [at para 85]:

which amounted to numerous breaches of the Fair Work Act 2009 (Cth).

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Mahajan v Burgess Rawson & Associates Pty Ltd [2017] FCCA 1560 (6 July 2017)

Court finds real estate firm unlawfully sacked staff member because she was pregnant and took annual leave – smartcompany.com.au