Employer unlawfully discriminated against a new worker after learning she was pregnant
Recently the South Australia State Administrative Tribunal considered whether a new worker was unlawfully discriminated by the employer when her probation period was doubled after finding out she was pregnant (Bukilic and Lifenet (WA) Financial Advice Pty Ltd [2008] WASAT 213).
Ms Bukilic, who was 3 months pregnant, attended her first day of work with LifeNet (WA) Financial Advice Pty Ltd as an administrative assistant. The practice manager handed a letter setting out the conditions of employment to her where she was subject to a three months probation period. The practice manager then noticed Ms Bukilic was pregnant.
On the second day of work, Ms Bukilic was asked to return the first letter of employment and received a new letter with a probation period of six months. On the third day, Ms Bukilic left the job. Later, she alleged unlawful discrimination and constructive dismissal. The Equal Opportunity Commission made an application to the Western Australia State Administrative Tribunal on her behalf.
Ms Bukilic said that the practice manager’s conduct towards her changed, further, the probation period was doubled after the manager learnt about the pregnancy. Ms Bukilic further argued that she was constructively dismissed by the company.
The practice manager said that the first letter was a mistake as administrative staff at LifeNet are offered a six months probation. Ms Bukilic said that the first letter was read out aloud to her, and the practice manager did not correct the error.
The tribunal accepted the worker’s evidence regarding unlawful discrimination, and held that the manager would not have treated a person who was not pregnant in the same way as increasing the probation period was a detriment to the worker. The tribunal ordered the company to pay $1,000 for hurt and humiliation suffered by Ms Bukilic.
The tribunal accepted the manager’s evidence that she would have continued to employ Ms Bukilic. It rejected the claim of constructive dismissal because the manager’s treatment of Ms Bukilic did not leave her with no option but to resign from the job. The tribunal held that the company is not liable to pay for any lost income resulting from the resignation.
This case highlights the need for employers to act carefully and with sensitivity when dealing with pregnant employees. This is a delicate area; while it is a legitimate for an employer to consider a candidate’s pregnancy when recruiting, it will be unlawful to discriminate against that candidate if a decision is made to employ. Equally it would be unlawful to discriminate against a candidate on the basis of potential pregnancy. Employers need to be aware of these issues and always seek advice.
