Pregnancy and Redundancy: Poppy v Service to Youth Council Incorporated [2014] FCA 656

The Federal Court has found in the case of Poppy v Service to Youth Council Incorporated [2014] FCA 656 (20 June 2014), that a manager whose position was made redundant while she was on maternity leave was not discriminated against on the grounds of her pregnancy. Although her position would not have been made redundant if she had not become pregnant, the Court held that this alone did not constitute less favourable treatment “because of” her pregnancy.

Facts of the Case

The manager worked for Service to Youth Council Incorporated (SYC) for four years before her role was made redundant in July 2010. She had given birth to her first child in March of that year, and when she made contact in May to discuss her return to work, the response was initially positive.

After several weeks, however, she was notified that SYC had decided to make her position redundant. The manager argued that this was unlawful discrimination on the ground of her pregnancy, in breach of the Sex Discrimination Act 1984 (Cth) (the Sex Discrimination Act). By terminating her employment, the manager claimed that SYC had treated her less favourably than it would have treated a person who was not pregnant.

The manager’s pregnancy was indirectly relevant to the redundancy decision. When her parental leave began, SYC declined to fill her position. Instead, her responsibilities were outsourced or absorbed by other employees. According to SYC, this new arrangement worked well. As Justice White found:

The Judge’s Comments

On this basis, the manager argued that, but for her pregnancy, her role would not have been made redundant. However, Justice White cautioned against using the “but for” test alone to determine whether she was treated less favourably because of her pregnancy. Applying the High Court decision in Purvis, the relevant comparator was a hypothetical manager of similar experience who also took approximately four months’ leave with SYC’s consent.

While the manager’s parental leave “allowed the alternative arrangements to be tested and to be found satisfactory”, the same would have occurred in the case of the hypothetical manager. It was the fact of her absence, rather than the reason for it, which led to the redundancy.

While the manager’s discrimination claim was unsuccessful, Justice White held that SYC had breached the NES as it had failed to respond within 21 days to the manager’s earlier request to be provided, on her return to work, with flexible working arrangements, as required by s 65 of the Fair Work Act 2009 (Cth) (the FWA). SYC argued that the manager’s request was invalid, because it did not contain any express reasons for her request, which is a formal requirement under the FWA provisions.

As a matter of statutory interpretation, however, Justice White held that such a failure was not intended by Parliament to invalidate a request. Justice White noted that s 65 is a beneficial provision, likely to be used by people without legal training, a factor which supports a less technical interpretation. Consequently, SYC was ordered to pay $2,500 as a pecuniary penalty for its breach.

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Pregnancy and redundancy - Article from Justitia.com.au