Andrew Douglas: This is an issue I’ve raised because we’ve now seen, I think, over the last six to 12 months, so many cases of pregnant women being treated fairly poorly in workplaces.

Nina Hoang: Mm.

Andrew Douglas: There is protections that sit in the National Employment Standards, which talk about providing people with alternative safe work and if they can’t take safe work, taking paid or unpaid leave, depending on what it is, what your agreements are that exist around it. But the most important part of what the National Employment Standards does is it recognise there’s a need to protect pregnant women. Discrimination law protection-

Nina Hoang: Yeah.

Andrew Douglas: Whole lot of things protected. But what’s critical to that is understanding the impact of the pregnancy upon the person and providing a safe place not only for that person, but for the unborn child who is inside. So I want you to remember that frame of reference. Fair Work Act says must protect it, okay? Now, must protect it isn’t hands-off, just waiting for a complaint. So if you see somebody who’s holding their back repeatedly, you’ve got to make the inquiries ’cause your obligations under Section 21-22 in Victoria and like in other states.

Nina Hoang: Monitor.

Andrew Douglas: Says, “I’ve got to monitor health. “I’ve got to satisfy it’s a safe place to work.” This isn’t a duty where you wait for the pregnant woman to come to you.

Nina Hoang: No.

Andrew Douglas: And I think, Nina, you have a even broader view as to the impact of pregnant workers-

Nina Hoang: Yeah.

Andrew Douglas: And it’s not just the physical risks that sit with them.

Nina Hoang: Yeah, because I think, like, we’ve seen a lot of cases around no-safe-job leave. So we all know that you have an obligation to provide a safe job. And oftentimes if the pregnant woman is in a role where it’s physically demanding, they are allocated other tasks, say such as in admin or whatever, because they can do it, and if they can’t be allocated a safe job, then they get to go on no-safe-job leave. But we’ve always looked at it from the frame of physical hazards only.

But I think with this day and age and the rise of psychological hazards, it’s important to realise that that also could be the case. Like if you, they’re in a role where they’re being subjected to physical, sorry, psychological hazards, then you also have an obligation to provide them with a safe place from those hazards as well.

Andrew Douglas: And remember, pregnancy creates significant hormonal changes that exist in vulnerabilities in the woman who’s pregnant. So there are real chances that particular behaviours where in a robust environment which you could tolerate at one point-

Nina Hoang: Well, like customer-facing roles.

Andrew Douglas: Yeah, yeah.

Nina Hoang: Like where people are being screamed at or something, yeah.

Andrew Douglas: Yeah, so look, I thought we’d raised that. Then let’s have a look at Robinson’s case.

Nina Hoang: You mean Tamrah Hughes?

Andrew Douglas: Oh, sorry, no, no, I’ve gone, yes.

Nina Hoang: Yeah.

Andrew Douglas: So this, yes.

Nina Hoang: Yeah, okay.

Andrew Douglas: I’ve got the wrong case right in front of me. So just know I forgot to turn the page.

Nina Hoang: This is aNina Hoang: A recent case involving actually a law firm who I think does in law, which is why it was shown. And it was a paralegal who, the commissioner mentions this in the case, enrolled a paralegal who was-

Andrew Douglas: Qualified privilege.

Nina Hoang: Pregnant, and told her law firm that she was going to take parental leave six weeks before she was due. I think she told them in November. And then in January, they informed her of a pending redundancy, invited her to a consultation meeting where she was told she could have a support person but they could not advocate on her behalf and they could not be anyone who previously and currently worked for the firm. I don’t know why they made those qualifications. Anyway, she attends the first consultation meeting and immediately they say they’re drafting a deed for her to resign instead of being made redundant, and they’ll give her three weeks. ‘Cause I think she was only entitled to one week’s notice. And so they skipped the consultation altogether.

Andrew Douglas: At all, yeah.

Nina Hoang: And then the next meeting, they provided her with a draft deed. She seemed amenable to it, said she’d go home and consider it. And they said, “That’s fine. “Just tell everyone you’re not coming back.” That’s what she did.

And then the next day, the director was like, “Where’s your signed deed?” And she said, “Please direct all your correspondence to my lawyer.” And so nothing happened, and then a couple days later, they decided to send her an email confirming that they’d had discussions that were without prejudice. She wanted to resign and she did offer her own accord. She was planning to sign the deed and based on all that, she had resigned, and here’s your final pay.

Andrew Douglas: That’s exactly what you’d do after you just been said, “Speak to my lawyer,” isn’t it?

Nina Hoang: Yeah.

Andrew Douglas: He’d actually poured the petrol over yourself and just get (made a sound).

Nina Hoang: Yeah, I don’t know, it was a weird move. But basically, obviously, they objected to that.

Andrew Douglas: That didn’t work either.

Nina Hoang: And the Fair Commission said, just basically annihilated them. It’s clear power imbalance between the law firm-

Andrew Douglas: “Annihilated, annihilated.”

Nina Hoang: I think it was very clear, it was like almost scathing in the assessment, and basically said everything that they’d done was wrong. The fact that they hadn’t consulted, gone straight into without prejudice discussions.

So yeah, I think she would’ve, oh wait, sorry. So that was just the first stage. So it was whether she could bring the general protections claim.

Andrew Douglas: Yeah.

Nina Hoang: The real fight is going to be next. And you best bet that she’s going to win that case.

Andrew Douglas: Yeah, so they’ve just got to settle, haven’t they?

Nina Hoang: Yeah.

Andrew Douglas: After decision, jurisdictional decision like that, you just got to wonder. And look again, the case doesn’t highlight any great law, can I just say? And what it does highlight is can you just, when you’re about to make a decision, a couple of thoughts.

One, is it a wise thing to be terminating a pregnant employee? Is it opportunistic or is it genuine? Is there a proper reason? If this was genuine redundancy-

Nina Hoang: You can do it-

Andrew Douglas: You can do it-

Nina Hoang: It’s not, there’s no prohibition on doing that.

Andrew Douglas: So you’re left, and that’s I think what the commissioner was left with implicitly saying, “I don’t know why you were doing this. I can’t think of a good reason you were doing this, except the opportunity arose.”

Nina Hoang: And it’s all reverse onus of proof, right?

Andrew Douglas: Yeah.

Nina Hoang: So you’ve got to have got that objective reasoning and evidence of it as well.

Andrew Douglas: Yeah, so look, I want to put it out there because it is our, was our topic for today. And it is a case which just reflects the very type of issues that pregnant women face.

Nina Hoang: Mm.

Andrew Douglas: It’s usually on the other end when they come, want to come back for leave and they want to work two days a week because… And people go, “Ah, there’s no business, we can’t do that.” And then there is the reasonable business argument that sits on the other side of it. That’s where we see most of the cases. But I just want people to remember, you know, humanity’s grown up by people having children. Businesses have historically adjusted around that. Centuries have adjusted around that. Don’t be opportunistic.

Nina Hoang: Yeah.

Andrew Douglas: Don’t think this is an easy take because it’s terrible for the person, absolutely shocking. But what it does to you culturally is just devastating.

Nina Hoang: And reputationally, like-

Andrew Douglas: Yeah.

Nina Hoang: This firm now is going to… Like people associate that with how you treat your pregnant staff.

Andrew Douglas: Yeah.

Nina Hoang: Mm.

Andrew Douglas: All right, well, why don’t we get onto the case study. Nina, can you read this on our small screen or do you need to go?

Nina Hoang: I can.

Brioni was a sales assistant at Tough Tom’s Hardware, TTH.

Nina Hoang: Named after Tom, yeah.

Nina Hoang: Yeah.

She was four months pregnant, her back had started to ache, and she still felt incessantly nauseous. Certain smells really set it off, including some of the fertilisers, paints, and solvents, and the sausage stall.”

What? Sell it from Bunnings.

Her doctor had warned that she needed to be careful when lifting over five kilos “and not to twist or bend too much.

She had developed gestational diabetes, suddenly gaining weight, “and was struggling psychologically. Her boss, Tony, had said a few times, “It’s going to be a big baby.” Each time, it hurt her because she knew her little baby was quite small, but the diabetes had caused significant weight gain. She felt she looked fat and horrible. One day, he put his palm on her tummy and said, “I think he’s going to be a ruckman,” smiled paternally, and walked away. An ultrasound that morning had said her baby was a girl.

She approached Bev in HR and said she was uncomfortable with Tony’s comments and wanted his comments and touching to stop. She gave her a medical certificate that set out her limits at work. Bev told her to tell the boys what they could and couldn’t do, it would be fine.

She said she would talk with Tony.

As in Bev would talk to with Tony?

Andrew Douglas: Bev, Bev would.

Nina Hoang: Okay.

Two weeks later, Bev approached. She explained there’d been a downturn in business and Brioni’s role was redundant. There was no work they could safely give her.

Andrew Douglas: All right.

Nina Hoang: There was no work they could safely give her?

Andrew Douglas: Yeah, they couldn’t give her any-

Nina Hoang: Oh, as in she couldn’t be redeployed ’cause-

Andrew Douglas: Yeah, yeah.

Nina Hoang: Gotcha, okay.

Andrew Douglas: Sorry I didn’t put the right legal language.

Nina Hoang: I’m just making it sure so no one’s confused.

Andrew Douglas: So everybody understands, yeah. Two days in a car, we’re already not getting on. Does Brioni have a general protections and discrimination claim?

Nina Hoang: Yes.

Andrew Douglas: Just about everything about it. Some of those things, some people may think are, you know, innocuous, they’re nothing. But touching someone’s tummy when they’re pregnant without their consent, it’s not flash, okay?

Nina Hoang: No.

Andrew Douglas: Making comments about the child, making comments about her.

Nina Hoang: Yeah, she’s also raised her complaints and also provided medical evidence of what she feels comfortable with boundaries wise.

Andrew Douglas: So the answer is yes and certainly, the termination is going to be almost impossible to prove because none of it puts her in proper consultation process. So none of the evidence was put in front of her. And although general protections doesn’t require procedural fairness, the absence of it at the time of termination goes to the reverse onus.

Nina Hoang: Mm.

Andrew Douglas: So you’re going to have to manufacture something after the event. It’s not going to look flash.

Nina Hoang: Mm.

Andrew Douglas: Has there been any breach of Fair Work Act and what is it?

Nina Hoang: Yeah, they haven’t provided her… Well, they haven’t really considered safe job at all.

Andrew Douglas: No, it’s their obligation.

Nina Hoang: Yeah.

Andrew Douglas: So their obligation is to work out what is a safe job and actually put a plan in place. So there’s a breach there. It’s not good, is it? I know this all seem pretty low level, but it’s not flash at all.

Nina Hoang: No.

Andrew Douglas: Is there unfair dismissal? Absolutely, failure of consultation, okay. So at the moment, she’s winning every battle, isn’t she?

Nina Hoang: Yeah, definitely unfair process.

Andrew Douglas: Yeah, and then did anyone breach any safety law?

Nina Hoang: Yeah.

Andrew Douglas: Yeah. And this is sort of good psychological hazard, sort of written all out-

Nina Hoang: But I don’t think it’d be reckless endangerment or anything. It’d just be-

Andrew Douglas: No, it’s primary-

Nina Hoang: I think primary breaches, yeah.

Andrew Douglas: Primary breach, and look, the problem is that for Tom, the boss, no, Tony, the boss. Tom, sorry.

Nina Hoang: Tony. Unintentional doesn’t matter.

Andrew Douglas: Yeah.

Nina Hoang: I think like the fact that he’s aware now that how uncomfortable it made her-

Andrew Douglas: Well, he’s a section 27 WHS, or 144, Victorian.

Nina Hoang: Mm, yeah.

Andrew Douglas: He’s got an officer’s breach as well.

Nina Hoang: Yeah, and actually, this also could veer into, like all this sex-based discrimination stuff too, because he is touching her without knowing-

Andrew Douglas: Oh, no, that’s, yeah.

Nina Hoang: If she’s going to accept it.

Andrew Douglas: That’s question one-

Nina Hoang: No, ’cause I know we focus about-

Andrew Douglas: Yeah, question one-

Nina Hoang: Yeah, I know we focus about the pregnancy aspect, but do you know what I mean? Like, people always think-

Andrew Douglas: Touching, sexual-

Nina Hoang: It’s got to be intentional.

Andrew Douglas: Yeah, yeah.

Nina Hoang: But with the new changes on the Fair Work Act, it’s everything could be, really.

Andrew Douglas: Yeah, yeah.

Nina Hoang: Yeah.

Andrew Douglas: So look, I wanted to put it out there ’cause none-

Nina Hoang: What’s the penalty, going to answer-

Andrew Douglas: Oh, what’s the penalty? Penalty is not going to be a high penalty. I’ve got to tell you-

Nina Hoang: No.

Andrew Douglas: It’s sort of eighties to a 100,000 in sort of financial penalties ’cause it’s primary duty breaches.

Nina Hoang: Yeah, but I think they’ve got a much stronger general protections claim.

Andrew Douglas: Yeah, general protections claim is a good claim.

Nina Hoang: Mm.

Andrew Douglas: So there you go, now look, I think we’ve done pretty well with a small computer for the second week. We can hardly see anything on this computer.

Nina Hoang: Yeah, it’s like this big.

Andrew Douglas: Except for my cone head.

Nina Hoang: From a distance, yeah.

Andrew Douglas: We can see my cone head. And we’ll be travelling for the next two days, so we won’t see it. But congratulations.

Nina Hoang: Give us, yeah, give us a thumbs up.

Andrew Douglas: Give us a thumbs up. And doing so well on such a tough day. Bye-bye everyone.

Nina Hoang: See ya.