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Gourmet food supplier in court over maternity leave discrimination

A gourmet foods supplier in WA will be taken to court by the Fair Work Ombudsman (FWO) over an employee who said she was discriminated against, and dismissed, during her maternity leave.

It is alleged that Austrend Foods director Denzil Rao took adverse action, in the form of unwarranted performance-management, against a pregnant sales executive.

With the Fair Work Ombudsman seeking penalties against Austrend and Mr Rao for alleged contraventions of workplace laws, he faces penalties of up to $10,800 per contravention, while the company faces penalties of up to $54,000 per contravention.

The FWO is also seeking a court order for Austrend to pay compensation to the employee for economic and non-economic losses.

The Fair Work Ombudsman alleged that the company raised performance issues and issued a written warning to the employee after she flagged her pregnancy and plans to take maternity leave, which eventually began only one day before she gave birth, after agreeing to delay the leave due to staffing shortages.

It was also alleged that in November 2015 the company refused the employee’s request to return to work under flexible working arrangements, and advised she could return in April 2016.

In the meantime she fell pregnant a second time and informed her employer a month before returning to full time duties. The company advised her it would extend her unpaid leave until after the birth of her second child, however the employee said she had taken advice that she was within her legal rights to return to work as originally agreed.

It is alleged that Mr Rao denied the existence of an agreement to return to work, and later forced the employee to sign a pre-prepared letter of resignation.

The allegations constitute contraventions of the National Employment Standards, as well as pregnancy discrimination and workplace rights provisions of the Fair Work Act.

Fair Work Ombudsman Natalie James said the agency initiated proceedings as 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,” Ms James said.

“Allegations that pregnant women are facing discrimination in the workplace are of grave-concern and it is important that all employers are aware of their obligations under the law.

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

“Under the Fair Work Act, it is unlawful to discriminate against employees on the grounds of pregnancy, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer responsibilities, religion, political opinion, national extraction or social origin.

“Discriminatory behaviour can include dismissing an employee, threatening to dismiss an employee, reducing an employee’s hours, denying training and promotion opportunities or refusing to employ, promote or train an employee.”

In 2016 Austrend was ordered to pay $4,230 plus super to another female sales employee for unfair dismissal, after Mr Rao tried to argue that he had not dismissed the employee. Fair Work Australia described Austrend’s behaviour as “not the act of a fair minded employer”.

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