Imagine finding out you are pregnant. You are overjoyed to walk into work the next day and break the exciting news to your colleagues and boss. They share in your joy and congratulate you, but two weeks later you receive a letter. Your employment is being terminated due to 'performance issues'. You're confused, angry and scared. How are you supposed to support your child without an income?
Although this may seem a worst case scenario, unfortunately it's not far from reality for many Australian women, who are still being treated unfairly in the workplace due to pregnancy. Terminations, demotions and sham 'redundancies' should not be an employer's reaction to pregnancy in the workplace.
Are you protected?If you've been terminated, demoted or made redundant because of your pregnancy, there are protections under the law. This kind of behaviour is considered an 'adverse action' under the general protections legislation in the Fair Work Act 2009 (Cth). Adverse actions extend beyond women who are mistreated due to pregnancy, and cover men who are terminated for taking paternity leave, parents who care for children, and those who take earned sick or personal leave.
What are your rights as a pregnant woman?Firstly, as an employee, you're not obliged to tell your employer about your pregnancy. However, it's often better to do so. There are health and safety concerns associated with pregnancy, and the physical effects - such as nausea, fatigue and hormonal changes - can impact your work. Often, you will need to access sick or personal leave during this time, so it's important your employer is aware of your condition.
You may also be entitled to certain benefits if you've worked for your employer for an extended time. After a year of continual employment, you're entitled to 12 months of unpaid parental leave. This also applies to a spouse or partner if they're responsible for child care.
In some circumstances, you and your partner may also be entitled to paid leave under the Australian Government Paid Parental Leave scheme. However, if you're planning on using this leave, you should alert your employer at least 10 weeks prior, and check your employment contract and / or award for any other conditions.
Sometimes, we underestimate just how difficult it is to return to work after giving birth. So if you need to extend your leave, it's important to give your employer at least four weeks notice before your original return date.
Returning to work protectionsAlthough your parental leave might be over, your rights as an employee don't end on your first day back to work. Australian workplace laws afford additional protections to workers returning from paternity or maternity leave.
If you’ve taken unpaid parental leave, you have what’s called a ‘return to work guarantee’. This means you’re entitled to return to your previous position, even if someone else was filling the role in your absence.
Where your job no longer exists or has changed, your employee is required to provide you with a suitable replacement position. This means finding a role that you’re qualified and suited to work in, and is comparable to your previous position, both in pay and in status.
Shine Lawyers, your employment law expertsPregnancy can be a trying time, and the last thing you need is added stress from worries about work. If you or a loved one is experiencing difficulties at work due to pregnancy, Shine Lawyers' Employment Law team is here to help. We will listen to your situation, assess your case, and provide individually-tailored legal advice to resolve your legal dispute. Get in touch today.
Written by Shine Lawyers. Last modified: September 26, 2018.