A recent decision of the Victorian Civil and
Administrative Tribunal serves as a reminder about managing
redundancy issues involving pregnant employees.
In Stern v Depilation & Skincare Pty Ltd
(Anti-Discrimination)  VCAT 2725 (22 December 2009), a
pregnant employee's request to reduce her hours to part-time,
due to morning sickness, was treated by her employer as a request
to permanently change her employment status from full-time to
After asking the employee to make her request in writing, the
employer refused it because there were no part-time positions
available. The employer asked other employees if they would change
their own working arrangements to accommodate the pregnant
employee, but they refused.
The employer proposed other arrangements to assist the employee
including allowing longer breaks and "power naps", having
a co-worker take over one of her shifts, and avoiding late
bookings. The employer also proposed a change in the employee's
working hours to one 12 hour and two 8 hour shifts a week. The
employee provided a medical certificate stating that she could not
work 12 hour shifts and should not work more than 8 hours. The
employer changed the employee's working hours in accordance
with the medical certificate.
Following a downturn in its business, the employer made the
employee redundant. The employer had initially determined that a
full-time position was no longer required by the business for
operational reasons. However, after a part-time employee resigned,
the employer decided to make one part-time position redundant. As
the employee was at that time working part-time hours, the employer
decided to terminate her position.
Deputy President McKenzie found that the employer had unlawfully
discriminated against the employee by unilaterally changing her
employment status to permanent part-time, instead of regarding the
reduction in her working hours as a temporary change. The
employee's changed employment status was a substantial factor
in the minds of the employer when making her position redundant. DP
McKenzie said that "[p]regnancy was therefore a substantial
reason, an actuating factor in the making of the decision to choose
her for redundancy". DP McKenzie also noted that the employee
had suffered discriminatory treatment in that the employer had
required her to make requests for alternative working arrangements
in writing while other employees, who were not pregnant, were not
DP McKenzie ordered the employer to pay the employee $6,607 in
Lessons for Government
State and Commonwealth Government employees are required to
adhere to the Values that apply to them and invariably those Values
include a commitment to workplace diversity and workplaces free
In managing issues relating to pregnancy and discrimination in
the workplace, we recommend the following steps:
There are laws which deal with workplace discrimination and it
is important to carefully consider all requests for flexible
working arrangements and to get advice before refusing a
When considering restructuring or redundancies that will impact
on women who are pregnant or on maternity leave, appropriate
consideration should be given to possible indirect discrimination
(where the action appears on its face to be neutral) as well as
direct discrimination. You should also consider your obligations
under the National Employment Standards to re-employ a parent who
has been on parental leave
Complaints must be taken seriously and employees should be
directed to appropriate policies and contact officers, and
Provide management and employees with refresher training.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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