Burgess Rawson unlawfully fired pregnant employee: Federal Court

The commercial real estate firm, Burgess Rawson, has been found by a Melbourne court to have unlawfully fired an employee because she was pregnant and took leave days for illness.

Despite the company arguing that her dismissal was due to work performance issues, the Federal Circuit Court ruled that the administrative assistant was fired in the last week of her probation period because of pregnancy, taking personal and annual leave and being absent due to illness or injury.

In doing so, Burgess Rawson breached the Fair Work Act, it said.

The employee, Tiffany Mahajan, nee Reddy, was represented by Matthew Minucci with Clayton Utz her solicitor, while Burgess Rawson was represented by barrister Toby Borgeest who was assisted by solicitors, Abrahams Meese Lawyers.

Compensation is yet to be determined.

The worker joined the Burgess Rawson Melbourne office in December 2015 on a six-month probation as an administrative assistant.

Her role was to proof read valuation reports, ensuring that there were no spelling or grammatical errors, and format the reports, the court judgement shows.

She learnt about her pregnancy in January 2016, and informed the office at her three-month probation meeting in March 2016.

Her boss, Mr Perrin -- the leader of the valuations team -- did not raise any issues about her performance at the time.

Her three-month probation meeting was with Mr Perrin and Mr Silvester, who was a senior valuer employed by the respondent.

Mr Perrin told the court that, during that meeting, he told the applicant that she appeared to be “going alright”.

He conceded in cross-examination that he did not raise any performance concerns with the applicant at her three-month probation review.

The applicant claimed that, in fact, Mr Perrin praised her for her work ethic.

The court heard that between March and her dismissal on June 3, 2016, the last working day before her probation period was set to expire on June 6, the staff member took seven days of sick leave and four days of annual leave because of morning sickness and hospital appointments. On these occasions she says she notified the employer in advance, the judgement noted.

She was late to work by about five minutes around six or seven times over three months, the court heard, owing to Melbourne's public transport delays, the Smart Company website revealed in its reporting of the court judgement.

The court also reviewed the minutes from a directors meeting in April 2016, which mentioned the staff members name, followed by the words “6 months 6 June. Situation needs to be dealt with”.

The judge found that while there were other references to staff members with performance concerns, she was the only one who apparently needed to be “dealt with”.

The worker’s team leader told the court that by May, he had made the decision to terminate her employment due to poor performance and poor punctuality. He said her pregnancy, leave days and intention to take maternity leave formed no part of the decision to dismiss, but acknowledged he did not formally raise any concerns about performance with her prior to the dismissal.

The team leader also said that while informing her of the termination on June 3, he did not give further details about what performance concerns had arisen, but did say she was “unreliable”.

The worker claimed she was told: “Due to your current circumstances, your employment has become unreliable and we have decided not to continue with your employment”.

Despite denials the worker’s “circumstances” had been discussed in the dismissal meeting, Judge Heather Riley found it likely that this had taken place and that it “beggars belief” the worker’s employment could be considered “unreliable” on the basis of her being slightly late to work on a handful of occasions over three months.

The company had also raised concerns about the worker’s ability when it came to formatting valuation reports and ensuring consistency in valuation figures in these reports. However, the judge found this suggestion “preposterous”, saying errors in figures for valuation reports were the responsibility of the valuer who had prepared the numbers, not the administration assistant.

Riley ultimately ruled that the worker was dismissed because “she was pregnant, she took personal leave, she took annual leave and she was temporarily absent from work due to illness or injury”.

The court was told another employee who announced during her probation period that she was pregnant was retained in her employment, with arrangements to cover a period of maternity leave.

Mr Perrin told news.com.au he was “disappointed” with the outcome of the case, and that he would decide whether to appeal once the court had assessed the amount of damages the firm would have to pay to Ms Mahajan.