One for my baby, and one more for the road: Drive through bottle shop attendant dismissed because of pregnancy

A bottle shop attendant in Cairns was recently awarded compensation in excess of $39,000 after she was dismissed for being pregnant (Leutton v Sheralee Hotels Pty Ltd Trading As Imperial Tavern & Ors [2019] FCCA 2471).

The employee was working in the drive through bottle shop of a tavern when she was informed by her doctor that, because of her pregnancy, she should not lift more than 5kg.

Following her visit to her doctor, the employee attended a meeting with the tavern’s bar manager and bottle shop manager. At the meeting, the employee advised the managers of her lifting restrictions and provided them with a medical certificate.

The employee requested “no safe job leave” (an entitlement under Fair Work Act 2009 (Cth) (FW Act)). One of the managers responded, “We don’t do paid leave.”

The employee asked whether she would have a job after her parental leave, and the response she received was that they would see if there was a job available then.

The employee also suggested that she could work behind the bar of the tavern (knowing that positions were being advertised) as this would not involve her lifting heavy items as her work in bottle shop required. One of the managers told her that it was a “bad look” for a pregnant woman to work behind the bar.

In short, the managers would not permit the employee to work behind the bar or take “no safe job leave”, and her employment was terminated.

The employer later issued the employee with a separation certificate which stated that the reason for “separation” was, “Due to pregnancy [the employee] is unable to continue with her position as [a] bottle shop attendant.”

The employee commenced proceedings against the employer and the two managers in the Federal Circuit Court of Australia.

She argued that her employer and the managers had taken adverse action against her because she had exercised or proposed to exercise her right to take unpaid no safe job leave and, had exercised or proposed to exercise her right to be transferred to a safe job during the risk period of her pregnancy.

The employee further claimed that she was discriminated against because of her pregnancy.

Despite the employer and the managers being aware of the proceedings against them, they failed to present any defence to the Court or to appear at all. The Court interpreted their failure to appear as a waiver of their right to be heard.

Accordingly, the Court accepted the unchallenged evidence of the employee and she was awarded compensation for lost wages and lost superannuation as well as compensation for hurt and humiliation. The Court also ordered that the employer and the managers pay a $10,000 penalty for their contraventions of the FW Act, and that the penalty be paid directly to the employee.

Lessons for employers

Pregnant employees have important protections under the FW Act, including protection from adverse action and discrimination.

Specifically, as touched on in this case, pregnant employees are entitled to:

  • return to their jobs after parental leave (this is known as the “return to the work guarantee”);
  • transfer to a safe job (where a safe job is available) if it is inadvisable for the employee to continue in their usual position for a stated period during their pregnancy; and
  • take “no safe job leave” where there is no appropriate safe job available. 

Taking adverse action against an employee because they are pregnant or because they exercise one of the workplace rights listed above is a contravention of the FW Act and can result in significant penalties for employers and any other individuals involved, such as managers.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 |

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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