By Charles Power
In a dismissal-related general protections claim, the person who made the dismissal decision needs to give evidence as to why they made the decision to dismiss.
If that person can provide credible evidence that the dismissal was not for a prohibited reason, the Fair Work Commission will weigh all of the evidence and overall facts and circumstances of the case to determine whether this account discharges the onus of proof on the employer.
Dismissing an employee because they are pregnant and/or made a complaint about their employment will contravene the general protections provisions of the Fair Work Act 2009 (Cth).
In Galeeva v W24 Pty Ltd T/A Woodards Melbourne (2018) a sales administrator/receptionist complained in an email to the director of the employer about excessive workload. She was required to work between 10 and 12 hours a day. In the email she also indicated she had become pregnant.
Three days later the director called her in to a meeting and initially asked about her pregnancy and when she was expecting. The director continued by using words to the effect of, “…we are looking for someone longer term” and “so this role is not for you” and “an exit plan will need to be agreed to ASAP”. The director also cited that the employee didn’t know how to use the systems at work. The employee was then dismissed.
The employee argued she had been dismissed because of her pregnancy and because she raised concerns about what she claimed was her excessive workload.
In a consent arbitration of the claim, the Fair Work Commission (FWC) accepted that the employee was entitled to believe that her pregnancy was the reason for her dismissal, given:
- she was told of her dismissal three days after informing the employer she was pregnant; and
- the employer had not previously made the employee aware in any formal sense about any significant concerns about her work performance.
However the FWC ruled that the employer had already decided to dismiss the employee before learning she was pregnant and before they received the email of complaint. Therefore, the reason for dismissal was because of issues associated with the employee’s ability to perform her role, which was not a contravention of the general protections provisions.