Getting Sacked While On Maternity Leave

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Two days after Amanda* announced her pregnancy, her employer couriered a termination notice to her home. She’d just been promoted so it’s unlikely she was being sacked for poor performance.

You don’t have be Einstein to work out that marketing manager plus bub equals “Your services are no longer required”.

Fortunately, Amanda’s father is a lawyer. Within 48 hours she had negotiated a payout from the company.

While she won compensation, it was hardly a victory.

Amanda lost a job she enjoyed, as well as the security and the identity of having a job to return to after her maternity leave. Most probably, she has also lost the ability to work part-time.

Women returning to the same job can often negotiate flexible work arrangements, but otherwise, meaningful and well-paid part-time work is very difficult to find.

And what did her large multinational employer lose — a company whose primary customers are mothers? What was the consequence for what is almost certainly a breach in the law? (And let’s be clear, sacking a woman because she is pregnant is indeed against the law in Australia.)

All the company lost was petty cash. What would be a large sum of money to you and me is back-of-the-couch money for them. In other words, it was a relatively small business cost to get rid of an inconvenience.

Like most women who receive compensation for unlawful dismissal, signing a non-disclosure agreement was conditional to Amanda receiving compensation. Therefore the company won’t suffer any reputational damage or have to pay any penalties for its illegal conduct.

Amanda’s situation isn’t unusual, though most companies tend to be a little more subtle than her former employer. Other employers disguise unlawful terminations of pregnant women and mothers within the context of a restructure.

“There are two times in which these redundancies are most likely to happen,” said Kamal Farouque, principal of employment & industrial law at Maurice Blackburn Lawyers. “When the woman is on a period of maternity leave or soon after she has returned to work.

“The employer thinks that it’s a lot easier if they restructure, make the person redundant and get rid of the perceived “problem”’.

You don’t have to spend much time around new mothers to hear stories of “restructures” that just happened to coincide with them getting pregnant and taking parental leave.

Fifty per cent of the women in my mothers’ group were made redundant soon after they announced their pregnancy or while they were on maternity leave.

But only one of the four women took legal action against her employer, and she too received financial compensation in exchange for signing a non-disclosure and no-fault agreement.

Her former employer paid her several months’ pay for her silence. But that pales into insignificance when you take into account that it took her three years to find another part-time job that was suitable to her skills and experience.

The other women in my mothers’ group didn’t stand up for their rights because they didn’t understand them properly, or the redundancy had rocked their confidence so much that they didn’t feel entitled to appeal.

It’s hard to quantify this problem because many women do not take action and those who do are invariably gagged.

Sex Discrimination Commissioner Elizabeth Broderick says that around 20 per cent of the complaints received under the Sex Discrimination Act relate to alleged unlawful terminations due to pregnancy or potential pregnancy.

“The complaints data is the tip of the iceberg,” she said.

Just as pregnant women study breathing exercises and breastfeeding techniques, they should also take the time to understand their industrial rights. A quick summary:

· Under the Fair Work Act employers can’t sack you because of family or carers’ responsibilities.

· They also can’t sack you for exercising a workplace right – which includes taking maternity leave.

· The Fair Work Act also requires employers to discuss changes that affect an employee’s pay or the location of their position when a person is on parental leave.

· The Fair Work Act includes a “return to work guarantee”. This means that you have a right to return to the same position you held before taking parental leave. If your position no longer exists, you have a right to a position that is nearest in status and pay to the position that you had before going on parental leave.

The good news for anybody considering taking action against her employer is that the onus now falls on the employer to disprove the allegation for wrongful dismissal. If you claim your employer has unlawfully dismissed you because of your pregnancy or your parental responsibilities, then it’s up to the employer to prove that it didn’t. But Mr Farouque cautions that it’s important that you act quickly.

“There are some time limits that must be adhered to — 21 days for Unlawful Termination Complaints, and Equal Opportunity Complaints are best made within 12 months,” he said.

Although, as Broderick points out, “Having laws is just not enough by itself. It’s also about attitudinal and cultural change.

‘Women’s role in child-bearing supports all of us. I urge people to look at it in the broader context. Children represent all of our futures and it’s incumbent on all of us to support mothers.’

Broderick says that both male and female employers need to ask what they would want for their own daughters.

“Do you want them to be an engaged mother and be in paid work? If that’s what you want then we need to all support that in the work environment,” says Broderick. “If we can’t accommodate mothers then we’ll lose them and Australia cannot afford to lose their skills and experience from the labour market.’

Unlawful dismissal isn’t just another aspect of motherhood to be endured in silence. It’s an assault on women’s collective power and wellbeing and damaging to the nation as a whole.

*Not her real name


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