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Two recent cases have highlighted the risks of making a role redundant whilst an employee is pregnant and entitled to unpaid parental leave.

In the first case, the part-time bookkeeper brought an unfair dismissal claim against her employer.

She had been employed for four years and was made redundant whilst overseas on holiday and 5 months pregnant. She alleged that there was no consultation process prior to her dismissal and as such it was not a genuine redundancy. She was awarded $6500 in compensation (or 10 weeks’ pay) due to lack of consultation and failure to notify her in person of her redundancy.

Goldberg v The Advice Spot t/a The Advice Spot [2020] FWC 2671, 1 June 2020

In the second case, the full-time receptionist brought an adverse action claim against her employer.

She had been with the employer for ten years and was made redundant whilst 7 months pregnant with gestational diabetes. The Commission found that the employee’s medical condition was a substantial or operative factor in influencing the employer’s decision to terminate her. The employer was ordered to pay $52,000 compensation including $16,000 for future economic loss, $15,000 for non-economic loss for post-natal depression and $13,000 for lost commonwealth-funded parental leave.

Mrs On Ni Liu v Compuworld Pty Ltd [2020] FWC 2569 (22 May 2020)

Conclusion

As you can see, the stakes are high when you make a pregnant employee redundant.

If the employee can prove that the pregnancy was a substantial cause of the termination, then damages are uncapped. If the employee brings an unfair dismissal claim however, then damages are capped at $76,800.

Please make sure you properly consult in writing before making any role redundant. We are happy to talk you through the process and make sure you are aware of all the risks associated before you make a final decision.