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Pregnant worker not warned before sacking

072PregnantWorkerNotWarnedBeforeSackingA travel consultant, sacked without warning while pregnant, has been awarded more than $19,000 in compensation, in part because she was found to be “a victim of a general reluctance to hire pregnant people”.

Green Travel Service dismissed Bernice Zhang, after three years of employment, on 14 September last year, citing a “constant lack of performance”.

Three days earlier, Zhang had been admitted to hospital due to a “pregnancy-related medical condition”. Zhang told her supervisor she could not come to work and that she was pregnant.

When Zhang returned to work on 13 September, company director, Peter Sheng, sacked her verbally. She left after the meeting and Sheng gave Zhang a formal dismissal letter the following day.

Zhang applied to the Fair Work Commission (FWC), saying that she was fired because of her pregnancy.

Employer’s efforts “simply not good enough”

FWC Commissioner, Leigh Johns, rejected Zhang’s claim that her supervisor had informed Sheng that Zhang was pregnant – leading to her being sacked – as her supervisor denied having done so.

However, Commissioner Johns found Sheng gave “unspecified and spurious” reasons for Zhang’s dismissal and had never “expressly and unequivocally” told Zhang her job was at risk. Sheng had not given Zhang the opportunity to respond to the reason cited for her dismissal.

In the dismissal letter Sheng said Zhang showed “utter indifference towards the cause of the company for a prolonged period of time”.

The Commissioner noted that the letter also referred to Zhang’s “negative work attitude” and falsely claimed that she “refused” to perform tasks.

“No doubt Mr Sheng was disappointed with [Zhang’s] attitude, but nothing in her conduct at this point justified termination of her employment,” Commissioner Johns said.

The employer accused Zhang of not managing her workload and causing delays, but Zhang said that had been due to a co-worker being on leave.

The company had neither warned her nor given negative feedback before it fired her.

Sheng’s efforts fell “well short of what is expected” and “his belief [Zhang] should have known that her job was on the line is simply not good enough” as she was entitled to warnings, the Commissioner said.

Commissioner Johns said Zhang being terminated at the beginning of her pregnancy had “impacted upon her ability to find alternate work in the nine months before she would otherwise be confined”.

Zhang wins 18 weeks’ compensation

The commission found reinstatement would be inappropriate as any chance at a productive and co-operative working relationship between Zhang and Sheng “has been lost”.

Commissioner Johns said Zhang had made efforts to mitigate the job loss, but “sadly, she is the victim of a general reluctance to hire pregnant people”.

Zhang said by being unfairly dismissed she lost the opportunity for paid maternity leave and accrued annual leave. She asked to be compensated for the 26 weeks she would have worked before taking maternity leave.

Commissioner Johns found the amount to be $29,000, but he deducted the three weeks’ pay given to Zhang as notice of her dismissal.

Green Travel said it lost a “significant client” soon after the dismissal, and Zhang would have been let go within the next week as the business was in a “precarious financial position”.

Given this, the Commissioner decided to apply a “contingency”, reducing the compensation by 25 per cent.

He awarded Zhang 18.75 weeks in compensation, totalling $19,831.73.

(Bernice Zhang v GTS Travel Management T/A Green Travel Service [2017], FWC 7061, 29/12/2017.)