By Leigh Johnson
A bottle shop attendant told by her manager that she would not be able to work in a bar while pregnant because it was “a bad look” has been awarded almost $40,000 in compensation and penalties, a court finding there was “no doubt” the employer breached adverse action provisions.
Federal Circuit Court Judge Greg Egan said a decision by the bottle shop and bar managers to dismiss the 39-year-old worker because she was unable to lift heavy items while pregnant – rejecting her request for redeployment or unpaid leave – was a clear breach of the Fair Work Act 2009.
The bottle shop attendant, who worked at the tavern for more than two years before being summarily dismissed in September 2017, told the managers that she wanted to stay in her position for as long as possible during her pregnancy as long as she did not have continue lifting heavy items in the bottle shop that weighed in excess of five kilograms. She was provided with a medical certificate to that effect from her doctor.
The RSA-qualified bottle shop attendant then suggested that she be transferred to a safe job – an option afforded to her by the provisions of the Fair Work Act which specifies that if an appropriate safe job available, then the employer must transfer the employee to that job for the risk period, with no other change to the employee’s terms and conditions of employment.
At the relevant time, she pointed out to the managers that the tavern was advertising for bar staff. She held a valid “Responsible Service of Alcohol” (RSA) certificate and was capable of fulfilling the role of a barperson. The applicant also gave evidence that she had previously worked behind a bar serving drinks in two other licensed establishments.
The bar manager rejected the worker’s request, as “someone had once had a miscarriage when working at the bar”.
The bar manager continued that it was a “bad look for pregnant women to work behind a bar”.
The woman then enquired if she could take “unpaid, no safe job leave” in the event that she could not continue working at the tavern, the bar manager responding: “We don’t do paid leave.”
However, under the Fair Work Act, if there is no appropriate safe job available, then the employee may be entitled to paid no safe job leave or unpaid no safe job leave.
Judge Egan noted the worker had not asked for paid leave.
When the bottle shop attendant enquired if she would still have a position after returning from maternity leave, the bar manager said she “would see if there was a job available then”.
Judge Egan said the worker “clearly established” in the meeting that the managers, who were acting as agents on behalf of the tavern, had rejected her proposition to work in the bar, or otherwise take unpaid, no safe job leave.
He said none of the respondents had answered any of the allegations made against them and by their non-appearance at the hearing “waived their right to be heard”.
“There is no doubt that the [bottle shop attendant’s] employment was terminated because of her pregnancy,” Judge Egan said.
He pointed out that the bar manager had signed the worker’s separation certificate, declaring: “Due to pregnancy, Angela is unable to continue with her position as bottle shop attendant.”
“Evidence given today by the [bottle shop attendant] was that she would have been prepared to remain working for the [Imperial Tavern] until the seventh month of her pregnancy,” Judge Egan said.
The bottle shop attendant would have been able to continue in employment for five and a half months after she was terminated, he said.
By reason of the applicant’s pregnancy, Judge Egan found the woman was discriminated against, and the employer had engaged in adverse action because of her pregnancy.
Judge Egan ordered the tavern and managers pay a total of $29,727.45 compensation to the worker, including $15,000 for hurt and humiliation.
Judge Egan also ordered the tavern and managers also pay a pecuniary penalty of $10,000 directly to the worker for contravening s351(1) and s340, pursuant to the provisions of s546(1).