In the recent case of Power v BOC Ltd & Ors  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.
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.
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]:
However, the Judge said the company’s management was [at para 81]:
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]:
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:
His Honour has adjourned the matter ahead of a hearing about the amount of damages to be paid to the employee.
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Power v BOC Ltd & Ors  FCCA 1868 (9 August 2017)
Energy company BOC rapped for making pregnant woman redundant two days before maternity leave –
Court finds gas supplier breached workplace laws by making pregnant employee redundant two days before maternity leave –
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