Power v BOC Ltd [2017] FCCA 1868: BOC Made Employee Redundant before Maternity Leave

Friday 8 September 2017 @ 10.48 a.m. | Industrial Law | Legal Research

In the recent case of Power v BOC Ltd & Ors [2017] FCCA 1868 (9 August 2017), the Federal Circuit Court has found an employer was “blissfully unaware” of obligations under the Fair Work Act 2009 (Cth) (the Act), when an employee was made redundant two days before her maternity leave was scheduled to commence in November 2015.

The employee brought an adverse action claim against BOC Ltd (BOC), a gas and chemical supplier owned by the Linde Group, after she was one of eight staff members made redundant by the company.

Background to the Case

The court heard the employee worked for BOC from 2013 until her redundancy on 4 November 2015. The worker discovered she was pregnant in March 2015 and after negotiations with supervisors, it was decided her last day of work before maternity leave would be 6 November.

The company’s paid parental leave scheme would have resulted in the worker receiving 21 weeks’ paid leave plus superannuation, a policy Judge Salvatore Vasta said was obviously a “very generous scheme” [see para 15].

In 2015, the business decided it would make eight redundancies across its operations, including the then pregnant applicant in this case. The court heard a decision was made the redundancies would take place on 12 November. However, the pregnant worker was notified of her redundancy on 4 November - two days before her parental leave was to take effect.

The Judgment

Two senior staff members responsible for communicating the redundancies said using the 12 November date for all workers would have meant the pregnant employee would have to come back to work after her maternity leave before she could be legally notified of the redundancy. His Honour said, [at para 81]:

“Neither of them felt that this was in the best interests of the [employee] and that it would be better for this to occur before the [employee] went on maternity leave.”

However, the Judge said the company’s management was [at para 81]:

“… blissfully unaware of the provisions of the FW Act in this regard …”

that doing this would breach the obligations under the Act to deliver on the worker’s maternity leave entitlements.

The employer said while it didn’t intend to discriminate against the worker, the company confirmed it had her pregnancy in mind when making the decision. Vasta J found one of the senior staff members was at [para 97]:

“… doing his best (as incompetent as it may seem in hindsight) to ensure that the [employee] was treated well.”

While the redundancy was found to be a genuine one, the Federal Circuit Court found that the notification date for this particular worker was brought forward because of “a prohibited reason”.

At [para 91] his Honour found:

“There are a number of other consequences for the [employee] because of the date of her redundancy was brought forward. This meant that the [employee] has not had the benefit of the safeguards of the redundancy policy of the … company.”

His Honour has adjourned the matter ahead of a hearing about the amount of damages to be paid to the employee.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Power v BOC Ltd & Ors [2017] FCCA 1868 (9 August 2017)

Energy company BOC rapped for making pregnant woman redundant two days before maternity leave – smh.com.au

Court finds gas supplier breached workplace laws by making pregnant employee redundant two days before maternity leave – smartcompany.com.au

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