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December 2019

Pregnant employees have workplace rights

Pregnant employees have workplace rights

The Case

Leutton v Sheralee Hotels Pty Ltd Trading As Imperial Tavern & Ors (2019)

Sheralee Hotels Pty Ltd Trading As Imperial Tavern & Ors (Sheralee Hotels) employed Ms Leutton in its drive-through bottle shop. When Ms Leutton became pregnant, her doctor issued a medical certificate preventing her from lifting more than 5kg. Ms Leutton notified Sheralee Hotels and requested ‘no safe job leave’ (under the Fair Work Act 2009 (Cth) (FW Act)).

Ms Leutton was advised that:

  • Sheralee Hotels could not accommodate her requests;
  • Ms Leutton could not work behind the bar as “it was a bad look”; and
  • Sheralee Hotels would see if it had a position available for her at the end of her parental leave.

Ms Leutton’s employment was terminated because “due to [her] pregnancy” she was “unable to continue with her position as bottle shop attendant”.

Ms Leutton commenced general protection proceedings against Sheralee Hotels and the two managers. The matter proceeded to the Federal Circuit Court of Australia.

The Verdict

Sheralee Hotels and the managers failed to file a defence or participate in the proceedings. As such, the Federal Circuit Court accepted Ms Leutton’s evidence and awarded her compensation for lost wages and lost superannuation, and general damages for hurt and humiliation. Sheralee Hotels and the managers were also ordered to pay a $10,000 penalty for their contraventions of the FW Act.

The Lessons

Under the FW Act, pregnant employees are entitled to:

  • return to their jobs after parental leave;
  • transfer to a safe job, where one is available, if they cannot continue in their usual position for medical reasons during their pregnancy; and
  • take no safe job leave where there is no safe job available.

Employers that take adverse action against an employee for exercising one of the above workplace rights, or due to the employee being pregnant, expose themselves to general protections and discrimination claims.

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