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Perspective

FCA rejects discrimination claim by dismissed pregnant employee

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The Federal Circuit Court of Australia (FCA) rejected an employee’s claim she was discriminated against because of her pregnancy and constructively dismissed.

The employee and alleged discriminators gave conflicting evidence and the latter, being that the alleged discriminators were never told about the pregnancy, was preferred.

The FCA noted that at the relevant time, the employee’s pregnancy had not yet been confirmed and the employee gave evidence that in her culture, pregnancies are not disclosed before 12 weeks.

The employee also claimed she was threatened about her position being made redundant but the FCA accepted contemporaneous evidence indicating discussions referred to were in relation to the employee’s performance issues, not a redundancy.

See Arya v Kone Elevators Pty Ltd & Anor [2020] FCCA 2693

Lessons

  1. Contemporaneous evidence is always preferred. In this case, one of the alleged discriminators produced text messages and emails and medical certificates she received from the employee which in no way indicated she was pregnant. There were also emails and file notes in relation to meetings held with the employee, showing the discussions held were around the employee’s performance and not a potential redundancy of her position, as claimed.
  2. File notes should be taken during performance or disciplinary meetings and follow up emails should be sent to employees after every discussion or meeting held to summarise what was discussed.

Written by Nes Demir

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