- Australian Caroline Power was made redundant before maternity leave in 2015
- Was employed with energy company BOC for two years before falling pregnant
- Court found BOC dismissal unfair as it was made before she was protected
- The Fair Work Act redundancy policy wasn’t applied before she went on leave
A pregnant woman has been made redundant just two days before she was due to go on maternity leave.
Australian Caroline Power was employed by energy and welding company BOC for two years before she fell pregnant.
While her maternity leave had been approved to start on November 6 2015, her employment was terminated by the company on November 4.
Australian Caroline Power was unfairly dismissed by energy company BOC just two days before her maternity leave
The Federal Circuit Court found eight employees were made redundant as a result of a nationwide business restructure, but their termination was due to take place on November 12.
As Ms Power would have to return to work while on maternity leave, the court found BOC unfairly made the redundancy by bringing the date forward.
While it is not unlawful for a company to make their employees redundant, Federal Circuit Court Judge Salvatore Vasta said the ‘bringing forward of the date of redundancy is adverse action’.
Ms Power was not given the benefit of return to work protections under BOC’s redundancy policy, under the Fair Work Act, because that policy had not been applied.
It is legal to make someone redundant while pregnant or on maternity leave but care needs to be taken (stock image)
Sydney lawyer Kerryn Tredwell told the Sydney Morning Herald that there was a ‘lesson for employers’ in this case to ensure that the timing of a decision to dismiss an employee in similar circumstances was ‘crucial’.
‘It all comes down to what is the reason for this decision. If any part of the reason is the pregnancy or the parental leave or the carer’s responsibilities, then that’s when discriminatory considerations arise,’ she said.
‘I am pleased with the decision. It’s been a long and stressful ordeal so I am happy to finally have some closure,’ Ms Power told the publication.
While it is legal to make someone redundant while pregnant or on maternity leave, Ms Tredwell said ‘real care’ needs to be taken when doing so.
‘If they had left it and made her redundant with everybody else the following week, then provided they could prove there was no suitable alternative job for her, they could have done it lawfully. It was really that timing error that let them down.’