Published 26 July 2017
In a recent case, Mahajan v Burgess Rawson & Associates Pty Ltd, the Federal Circuit Court of Australia found an employee dismissed on the last day of her probationary period was dismissed because of her pregnancy and for taking personal and annual leave due to her pregnancy.
Mrs Mahajan commenced employment with Burgess Rawson & Associates on 7 December 2015. On 6 or 7 March 2016, Mrs Mahajan had a three-month probation meeting where she was “praised” for her work ethic. At the end of the meeting, Mrs Mahajan informed Mr Perrin, her team leader who was conducting the meeting, that she was pregnant.
Between the meeting and her dismissal, Mrs Mahajan took seven days of sick leave because of morning sickness, four days of annual leave to attend pregnancy related medical appointments, and was late on six or seven occasions, allegedly by only five or ten minutes.
On 3 June 2016, the last working day before her probation ended, Mrs Mahajan was dismissed “due to [her] current circumstances”. Mr Perrin said the dismissal was due to work related performance and her unreliability, and nothing to do with her pregnancy.
Mrs Mahajan claimed she was dismissed because of her gender, because she was pregnant, and because she took leave.
The Federal Circuit Court found there was no evidence to suggest Burgess Rawson & Associates dismissed Mrs Mahajan because of her gender. Of significance, the Court recognised the company had employed Mrs Mahajan “obviously knowing she was a woman”. It therefore did not make sense for them to dismiss her due to her gender.
The Court found Burgess Rawson & Associates dismissed Mrs Mahajan because she was pregnant. The Court found it highly unlikely her team leader would believe she was unreliable based on six or seven late arrivals by only 5 to 10 minutes in a three-month period. Further, it was unlikely the dismissal was based on poor performance when Mr Perrin had not brought his concerns to her attention in a formal meeting.
The Court also found Burgess Rawson & Associates dismissed Mrs Mahajan because she took leave. The Court believed Mr Perrin dismissed Mrs Mahajan because she was “unreliable” due to her pregnancy and the related illnesses and not because of performance related issues. The Court noted that while not formally raising performance issues is not determinative in an adverse action case, it is still relevant. The Court said, “[t]he failure to raise performance issues with [Mrs Mahajan] during the course of her employment does tend to undermine the credibility of the allegations about her performance which were raised for the first time after her dismissal”. Further, the Court found that if Mrs Mahajan’s “performance had genuinely been bad enough to dismiss her, [Mr Perrin] could have been expected to dismiss her much earlier”.
The Court found Mrs Mahajan was dismissed because she was pregnant, took personal leave, took annual leave and was temporarily absent from work due to illness or injury and thus was subject to adverse action.
Take away points for employers
This case demonstrates the importance of employers discussing any performance related issues with employees on a probationary period prior to dismissing them. This is relevant in defending unfair dismissal applications and allegations of adverse action.
Employers must also be aware that while employees are not eligible to apply for unfair dismissal if dismissed within the probationary period, they are still protected from adverse action.