Belated baby bonus for pregnant bottle-o employee sacked over ‘bad look’

After a two year wait, an employee who was sacked by a tavern in far-north Queensland – essentially, because she was pregnant at the time – has been awarded tens of thousands in compensation with the Federal Circuit Court finding there was “no doubt” her dismissal breached the general protections provisions of the Fair Work Act 2009 (the Act).

The worker had been employed in the bottle shop of the Innisfail tavern when she fell pregnant in 2017. By September of that year, barely a couple of months into her pregnancy, her doctor advised she should not be lifting items in excess of 5kgs; a restriction the bottle shop manager described as “unfair” saying he already “had enough to do”. In response, the worker – who had approximately two years’ service with the tavern and had made it clear she hoped to continue working as long as possible through her pregnancy – asked tavern managers if she could take “unpaid no safe job leave” in the event there would not be an available position for her within the tavern. The bar manager’s reply was that, “we [the tavern] don’t do paid leave”, notwithstanding the worker had requested unpaid leave, as Judge Greg Egan had noted.

The employee also queried managers as to whether she could be transferred to the tavern’s bar for the duration of her pregnancy; the worker was RSA-qualified and the tavern were advertising for bar staff at the time. The bar manager rejected the worker’s proposal saying, “someone had once had a miscarriage when working at the bar”, adding, it was a “bad look for pregnant women to work behind a bar”. In reference to the employee’s query as to whether she would have a job to return to post-birth, the tavern also failed to recognise the employee’s right to take parental leave, with the bar manager merely telling the employee she “would see if there was a job available then”.

Despite the worker’s willingness to work through to the seventh month of her pregnancy (subject to the lifting restriction), the employee was summarily dismissed with the bar manager indicating on her Separation Certificate: “Due to pregnancy, [the worker] is unable to continue with her position as bottle shop attendant”.

Judge Egan of the Federal Circuit Court has since awarded the employee compensation, finding, “There is no doubt that the [worker’s] employment was terminated because of her pregnancy”. In the absence of the tavern’s managers – who had failed to appear in the Hearing and therefore “waived their right to be heard” – the Judge accepted the employee’s account of the events leading to her dismissal and concluded, had her employment not been terminated, she would have continued in employment for a further five and a half months before stopping work to have her baby.

Judge Egan ordered the tavern and its managers, who acted as agents on behalf of the employer in all dealings with the employee, pay a total of $29,727.45 in compensation to the worker; an amount which includes $15,000 for hurt and humiliation. In addition, Judge Egan also ordered the tavern and managers to pay a pecuniary penalty of $10,000 directly to the worker for contravening the discrimination protections of the Act.

Leutton v Sheralee Hotels Pty Ltd t/a Imperial Tavern & Ors [2019] FCCA 2471 (28 August 2019)