Getting sacked while on maternity leave

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Photo: Getty

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.

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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

Kasey Edwards is the best-selling author of 4 books 30-Something and Over It, 30-Something and the Clock is Ticking, OMG! That's Not My Husband, and OMG! That's Not My Child. www.kaseyedwards.com

86 comments

  • ...and in six months you will have to rewrite this because there will be no more unfair dismissal legislation when Mr Abbott becomes PM.

    Commenter
    Daisi
    Date and time
    June 18, 2013, 9:16AM
    • Maybe so...but you cannot legislate for bad employers, just as you cannot legislate for bad employees.

      Commenter
      selector 2
      Date and time
      June 18, 2013, 10:48AM
    • Daisi... “..and in six months you will have to rewrite this because there will be no more unfair dismissal legislation when Mr Abbott becomes PM".

      so, please can you explain why under Julia Gillard's amazing new Fair Work Australia... this is still occurring.

      My wife had an even worse experience... she went into labour at 29 weeks... we live in the country, so when our daughter was born 45 minutes later she was flown to Sydney... we had to drive down the next day without her being able to touch her until we got to the hospital... where I must say they were fantastic.

      But... on our return to our home town, her employer requested she come in for a meeting... without even asking how she was or the baby they gave her a choice, either come to work in a town 1 hour away and work evenings or you've got no job.

      So, guess what...

      * we got on to fair work... mmm.. what a help they were... they didn't help at all
      * oh... that's right, she's a member of the union... mmm... they tell her she is the only staff member in the union... so they won't help... she was so glad she paid all those union fees, oh.. and the 2 directors of the board where directors at a well known union I won't mention.

      In the end we knew a great solicitor who drafted a letter for us and we took up the fight... she didn't get that much... but at least she got what she was due.

      So, Daisi, please explain to me why the current system is so great, as if you actually have to use it... guess what... it stinks!

      Commenter
      cardinal fang
      Date and time
      June 18, 2013, 12:30PM
  • Without question a multi-national whose profit runs into the tens if hot hundreds of millions a year have an obligation to pay maternity leave. For smaller businesses however, it can be quite tricky as not only are they paying maternity leave they also have to employ someone to perform the job of the person on leave. In the current climate, a lot of small to medium businesses cannot afford this. I know of several small businesses who just cant afford the risk of hiring a young woman who will leave in 12 months on maternity leave and, as a consequence will not hire them. They prefer to hire mothers whose children are older.

    Commenter
    Dirk
    Date and time
    June 18, 2013, 9:19AM
    • spot on Dirk.....its always the same....blame business. Try running a business where, believe it or not, there is no certainty that you will make money and then ask yourself what you would do if you owned the small/medium size business. There is a difference between being compasionate and understanding as an employer when people get an illness and have other problems in their life, but I just dont understand why business should wear the bill for personal choice of having a family

      Commenter
      here we go again
      Date and time
      June 18, 2013, 9:50AM
    • God I am so sick of hearing this bullshit excuse. Last time I looked the provision of statutory maternity pay came from the GOVERNMENT...so all small businesses have to do is REPLACE or REDISTRIBUTE. Not a big deal, and seriously, if you can't figure that into your business plan then you aren't doing it right!

      Commenter
      Liv
      Location
      Sydn
      Date and time
      June 18, 2013, 9:58AM
    • You are joking right? You are talking about 6 weeks pay max. The rest of the maternity leave would be unpaid and therefore you would only have to pay double wages for 6 weeks at the most.
      Many small businesses don't even offer paid maternity leave to their employees. Can I suggest your small business friends are either moaning about nothing or need to do a bit of reading about the minimum employment conditions.

      Commenter
      Reg
      Date and time
      June 18, 2013, 10:06AM
    • @Liv wrong

      @reg even more wrong.

      Commenter
      Jak
      Date and time
      June 18, 2013, 10:47AM
    • Jak
      I agree

      Commenter
      con
      Date and time
      June 18, 2013, 12:15PM
    • @Rag. Obviously you have never been in small business. When a small business has 3 employees and one leaves who is on $1500 per week + and additional 9% super it is often difficult for that small business to pay another $1500 + 9% super. Sorry but paying out $7500 + 9% for someone who isn't there doesn't work in business. You see, the point of being in business is to make money and in small business the line between profit and loss is very thin indeed. Additionally, it can cost up to another $2000 to find someone to replace them, taking into account advertising for position, time off for interviews etc. Regardless, the people I mentioned aren't moaning, they are simply not hiring people who are planning to have children soon.
      @liv - it's not an excuse, it's the way it is.

      Commenter
      Dirk
      Date and time
      June 18, 2013, 12:23PM

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