Aussie food distribution business in hot water over alleged pregnancy discrimination

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The operators of a Perth gourmet food distribution business, Austrend International Pty Ltd, are facing legal action for allegedly discriminating against a pregnant employee.

The Fair Work Ombudsman has commenced legal action in the Federal Court against Austrend International, trading as Austrend Foods, and company director and part-owner Denzil Godfrey Rao.

The Fair Work Ombudsman alleges Austrend and Rao took unwarranted performance-management action against a sales executive after she fell pregnant with her first child, denied her lawful right to return to work after taking parental leave and constructively dismissed the employee by presenting her with a pre-written resignation letter after she informed management that she had fallen pregnant with her second child.

In early 2015, the employee informed Austrend that she intended to commence a period of parental leave in mid-2015. The Fair Work Ombudsman alleges that a short time later, Austrend raised performance issues with her for the first time and subsequently issued her a written warning.

It is alleged that Austrend’s performance management action against the employee was unwarranted and was a form of adverse action taken against the employee in response to her flagging her intention to exercise her lawful right to take parental leave.

Two months after receiving the written warning, it is alleged that the worker agreed to delay her maternity leave in order to assist Austrend in covering a staff shortage. The employee’s formal leave period began one day before she gave birth to her first child.

The Fair Work Ombudsman alleges that in November 2015, while the employee was on parental leave, Austrend rejected her request to return to work with flexible working arrangements and advised in writing that the employee could return to full-time duties in April 2016.

The employee subsequently fell pregnant for a second time and advised Austrend of her pregnancy in March 2016. The Fair Work Ombudsman alleges the employee advised Austrend that it was still her intention to return to work in April, however the company told her it was extending her unpaid leave until after the birth of her second child.

It is alleged that the employee subsequently alerted Austrend to the fact she had not requested an extension of unpaid leave and informed the company that she had received advice that she was within her rights to return to work in April 2016 as originally agreed.

It is alleged that Rao and Austrend responded by denying the existence of any agreement that she return to work in April 2016, raised allegations of performance issues and asked her to obtain a medical certificate as to her fitness to return to work.

It is alleged that after the employee provided a medical certificate in July 2016, Austrend asked her to attend a meeting where she was asked to sign a Letter of Resignation pre-prepared by Austrend management.

It is alleged the letter of resignation, which the employee signed, amounted to a constructive dismissal of the employee.

It is alleged the conduct of Rao and Austrend in denying the employee’s lawful right to return to work and constructively dismissing her contravened the National Employment Standards and the pregnancy discrimination and workplace rights provisions of the Fair Work Act.

Fair Work Ombudsman Natalie James says the agency initiated proceedings as the allegations were particularly serious.

“Under the Fair Work Act employees have a lawful right to return to work following a period of parental leave,” James says.

“Allegations that pregnant women are facing discrimination in the workplace are of grave-concern and it is important that all employers are aware of their obligations under the law.

“A 2014 report published by the Australian Human Rights Commission found that 49 per cent of mothers surveyed reported experiencing some form of discrimination during pregnancy, while on parental leave or returning to work.

“Under the Fair Work Act, it is unlawful to discriminate against employees on the grounds of pregnancy, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer responsibilities, religion, political opinion, national extraction or social origin.

“Discriminatory behaviour can include dismissing an employee, threatening to dismiss an employee, reducing an employee's hours, denying training and promotion opportunities or refusing to employ, promote or train an employee,” James says.

The Fair Work Ombudsman is seeking penalties against Austrend and Rao for alleged contraventions of workplace laws, as well as a Court Order requiring them to pay compensation to the employee for economic and non-economic loss.

Rao faces penalties of up to $10,800 per contravention and the company faces penalties of up to $54,000 per contravention.

For further information and assistance, please visit fairwork.gov.au.

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