Fair Work Ombudsman sues firm over maternity leave ‘bias’

The Australian, March 20, 2017:

A pregnant Perth sales executive was allegedly subject to unwarranted performance management, denied the right to return to work after parental leave, and presented with a pre-written resignation letter after telling her boss she was pregnant with her second child.

The Fair Work Ombudsman is taking Federal Court action against Perth gourmet food distribution business Austrend Foods and company director Denzil Godfrey Rao for allegedly discriminating against the sales executive, Diana Lindsey Aragon.

The regulator is seeking Austrend pay compensation to Ms ­Aragon and penalties for breaches of the Fair Work Act.

In a statement of claim, the ombudsman alleges Ms Aragon told Austrend in early 2015 that she ­intended to go on parental leave in mid-2015. Shortly afterwards, Austrend raised performance ­issues with her for the first time and issued a written warning.

Two months later Ms Aragon agreed to delay her leave to help the company cover a staff shortage. She kept working while heavily pregnant and her leave started the day before she gave birth to her first child.

Ms Aragon had told the company she intended to return to work in November 2015, but management did not respond to several emails seeking to confirm her return to work for two days a week. On November 26, 2015, Dr Rao emailed Ms Aragon rejecting her request to return part-time, and told her to produce a medical certificate showing she was fit to return to work.

On the same day Ms Aragon, not having seen the email, arrived at the workplace with her partner and asked management when she could return to work.

She was told she only return on a full-time basis. A day later, she nominated her return to work date as April 4, 2016, which was agreed by Austrend. In January last year Ms Aragon fell pregnant with her second child.

On March 4 last year she confirmed her April return to work and asked if she could have Tuesdays off to help look after her daughter. She offered to work longer hours on the other four days of the week to “compensate’’ for not working Tuesdays.

A week later she emailed Austrend to tell them of the pregnancy, that she intended to return in April but did not press the request to have Tuesdays off. For two weeks the company did not respond to her emails before telling her it had extended her unpaid leave until after the birth of her second child.

Ms Aragon told Austrend she had advice from the Fair Work Commission that she was within her rights to return to work last April as originally agreed, but Dr Rao allegedly denied there had been an agreement, raised alle­gations of performance issues and asked her to obtain a medical certificate to demonstrate her fitness to return to work.

Last July Austrend asked Ms Aragon to attend a meeting where she was asked to sign a resignation letter pre-prepared by management. The ombudsman alleges the letter, which Ms Aragon signed, amounted to a constructive dismissal.

Fair Work Ombudsman Natalie James said yesterday 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.

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

The ombudsman is seeking penalties against Austrend and Dr Rao, and a court order requiring they pay compensation to Ms ­Aragon for economic and non-economic loss.

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