03 December 2008
Key Points:
Employers should be aware that an applicant for employment does not have an obligation to disclose the fact of a pregnancy or an intention to become pregnant.
In Bukilic and Lifenet (WA) Financial Advice Pty Ltd [2008] WASAT 213 (17 September 2008) Ms Lucy Bukilic claimed that her former employer had discriminated against her on ground of her pregnancy. Ms Bukilic alleged that the written conditions of her employment were altered once her employer became aware that she was expecting a child. Moreover, the applicant argued that her treatment by her employer Ms Williams amounted to a constructive dismissal to the extent that it left her no option but to leave.
Ms Bukilic began office work at LifeNet in May 2007 after moving to Western Australia from Victoria with her husband in early 2007. Ms Bukilic had learnt of her pregnancy in March of that year and while she told her immediate family, she decided not to tell prospective employers until after she was three months pregnant, largely because according to her Ukranian background, it would be bad luck to do so.
On commencing work at LifeNet on 28 May 2007, Ms Bukilic was given a letter detailing the conditions of her employment. The letter was incorrectly dated as 29 May 2007, and when Ms Bukilic informed Ms Williams of this, Ms Williams told her not to worry about it.
The first letter confirming the basis of her employment Stated that Ms Bukilic would be on probation for the first three months.
As Ms Bukilic was filling out the forms, Ms Williams asked if she was pregnant. Ms Bukilic answered yes, and replied that she was going to tell Ms Williams after she had completed the forms.
Ms Williams said that she was shocked and surprised that she had not been informed earlier. On Ms Bukilic's evidence, Ms Williams became "tense and annoyed" and said that she deserved to know as Ms Bukilic's employer. Ms Williams denies saying this, but admitted that she was "flabbergasted", "shocked" and "disappointed" on learning of the pregnancy.
The following day, 29 May 2007, Ms Williams asked Ms Bukilic to return the first letter of employment so that she could change the incorrect date on it. On receiving the letter, Ms Williams tore it up and threw it in the bin, returning later with a second letter of employment, identical to the first, bar two amendments.
The first change was the addition of the sentence "You have advised today that you are pregnant." and the second was an extension of the probationary period from three to six months.
Ms Bukilic said that Ms Williams' manner had changed towards her, and throughout the training that day Ms Bukilic became increasingly "stressed out and worried" resulting in her confronting Ms Williams and leaving the office. The same day Ms Bukilic received another letter from Ms Williams confirming Ms Bukilic's "resignation" and suggesting that she "reconsider [her] decision".
The Tribunal found that Ms Williams increased Ms Bukilic's probation period from three to six months after she learned of her pregnancy. Ms Williams' conduct in this regard was held to amount to unlawful discrimination within the meaning of section 10 of the Equal Opportunity Act 1984 (WA).
The Tribunal was not satisfied that the reference to three months probation in the first letter was an error on Ms Williams part, contrary to her evidence. Moreover, the Tribunal accepted that Ms Williams' behaviour towards Ms Bukilic had changed after her learning of her pregnancy.
The Tribunal did not find that Ms Bukilic's claim of constructive dismissal was made out, and that Ms Williams' conduct did not force Ms Bukilic to leave.
Ms Bukilic was awarded $1,000 in compensation for the distress suffered on account of the increase in probationary period.
Implications
Employers should note that even the act of increasing a probationary period is the kind of behaviour that may be considered discriminatory if it is found to be imposed as a reaction to the presence of a particular attribute of the employee such as the fact of a worker being pregnant in this case. Undoubtedly, increasing the period of probation in response to an employee concealing a pregnancy will amount to unlawful discrimination and is unacceptable treatment of an employee.
Employers should also be aware that an applicant for employment does not have an obligation to disclose the fact of a pregnancy or an intention to become pregnant and asking a person for confirmation on such issues could amount to a breach of the anti-discrimination laws.
Thanks to Sophia Gerakios for her help in writing this article.
For further information, please contact Saul Harben.
