News
When a bun in the oven means feet on the street
A recent case reminds us that pregnancy is not a cause for dismissal.
Despite what one would hope are significant attitudinal changes in our society over recent years - not to mention some pro-active legislation - the prospect of pregnancy of an employee still appears to pose problems for some employers.
The employee in Proceedings Commissioner v Penney & D & D Manufacturing Ltd (Human Rights Complaints Review Tribunal, Auckland, 27 March 2001, CRT65/00) was employed on a part-time basis doing sewing work. About six weeks after she had commenced work in July 1998 she found out that she was pregnant. She told her supervisor but was advised not to tell her employer because he was likely to dismiss her.
About eight weeks later she began suffering from morning sickness and was too ill to work on two days. When she returned to work from this period of sickness she was dismissed. Her employer told her that he was "sick of her problems becoming his problems". To her horror, she discovered that a new person had been hired to perform her work. The employee was effectively dismissed immediately - and did not receive any holiday pay, her previous week's wages or any severance benefits.
The employee chose to make a complaint pursuant to the Human Rights Act 1993. She alleged that her employer had discriminated against her on the basis of sex (which includes pregnancy and childbirth). The employee's complaint was investigated by the Human Rights Commission. The Commission concluded that there had been a breach of the Act. The Act contemplates that, after such a finding, the Commission should endeavour to facilitate a settlement between the parties (which in this case would presumably have involved some form of payment to the employee). Evidently, no settlement was possible in this case, and the matter proceeded to a hearing before the Complaints Review Tribunal. The Tribunal found in favour of the employee, and the employer was ordered to pay costs and compensation of approximately $10,000.
There are a number of observations that can be made on the basis of this case.
First, the case arguably illustrates a mistaken perception by many employers - that pregnancy may be an acceptable ground for dismissal. An employee who has worked for a period of 12 months prior to an expected date of delivery is entitled to seek leave (of up to 52 weeks) from employment pursuant to the Parental Leave and Employment Protection Act 1987. An employer has a general obligation to keep the employee's job open throughout such a period of leave. Recent experience has shown that many employers believe either that they are entitled to refuse to allow such parental leave (thereby requiring the employee to resign from employment shortly prior to giving birth) or that they may cite economic grounds for making the employee redundant during such a period of parental leave (on the basis of the cost involved in retaining a person to "cover" the employee on leave). There is obvious danger to employers who adopt such attitudes - not the least of which is the prospect of significant public criticism for such actions.
The second observation which can be made on the basis of this particular case is the fact that the employee chose to pursue her claim through the Human Rights legislation. Under the Employment Relations Act the employee would have had a choice alternatively to pursue this matter as a personal grievance (raising the matter as an employment problem).
The advantage to pursuing the matter through the Human Rights Commission is, arguably, one of cost. The Commission is responsible for the investigation of a complaint - and the subsequent prosecution before the Complaints Review Tribunal. The disadvantage, however, is the length of time taken to conclude this process (it will be noted that the decision in this matter occurred over 2½ years following the facts giving rise to the claim).
The advantage to pursuing the matter as an employment problem is that the claim would inevitably be referred to the Mediation Service within a relatively short period of time. The employee would not necessarily require legal representation for this forum, although if the matter was not settled the employee would probably be best advised to seek legal advice before proceeding to the Employment Relations Authority. It is a moot point as to whether the Authority would tend to award a greater level of compensation than the Complaints Review Tribunal.
There is, however, one aspect of this case which is of particular note: no matter which avenue this employee chose it is possible that she would have had her claim considered by the same adjudicator - Mrs Bathgate (who issued the decision) is a member both of the Complaints Review Tribunal and the Employment Relations Authority.
This recent decision illustrates the level of misunderstanding that appears to exist concerning the way in which pregnant employees must be treated in the workplace.
