KEY POINTS:
Cases where employees are dismissed because they are pregnant are relatively uncommon these days. Most employers are aware that to do so will expose them to claims for unjustified dismissal and sex discrimination. Yet two recent cases show that blatant discrimination still happens.
In the first, Ms Chiu worked as a waitress for New Deli & Café Ltd, and New Gusto Café Ltd. She told her employers of her pregnancy in late August 2007, and was sacked a few days later. The employer claimed she had been dismissed because she had not been able to provide proof of her eligibility to work in New Zealand. She said she had done so when she first started work, and this had nothing to do with why she was sacked.
There was a dispute as to whether she had started in February 2007 as she claimed, or only 3 weeks before the dismissal, as the employer claimed. It acknowledged not paying PAYE to the IRD, but said it was intending to do so. The Employment Relations Authority embarked on an exhaustive analysis of the evidence as to her start date, looking at evidence from customers and employees, phone records, and even obtaining a forensic handwriting analysis. It decided she had been employed back in February, and therefore PAYE had not been paid to the IRD for several months.
Once the employer found out about the pregnancy, it realised the IRD would soon find out about the PAYE issue, because maternity pay is triggered by an application to the IRD. The Authority said that by dismissing when it did, the employer prevented Ms Chiu from applying for maternity pay. The issue about her eligibility to work in New Zealand was purely a pretext for a discriminatory dismissal on the ground of her pregnancy.
The Authority made it quite clear that it thought the employer's main witnesses blatantly lied about the start date issue. This ruined their credibility and ultimately affected the outcome of the whole case.
The Authority noted that Ms Chiu had "had to experience the further humiliation of being called to her face a liar and a fraud, and a fabricator of evidence." It awarded her unpaid annual leave covering her employment back to February 2007, reimbursement of lost pay, compensation for humiliation, and compensation for the loss of the chance to apply for maternity pay (over $22,000 in total).
In the other case, Ms Melrose worked as general manager for Weka Group Ltd (trading as The Vulcan), from March 2007. On 30 November she told the company that she was pregnant, and a week later a new general manager was appointed. She was told she would be the assistant general manager.
In January she was paid five hours for a particular day instead of the usual seven. When she queried this her employer said she had taken two hours off to see a midwife, and gave her a warning for falsifying her timesheet - when she had not actually filled one out.
A few days later, she was called to a meeting with no notice of what it was about. She was shown a timesheet showing she had left work at 6pm on a particular day when there was video footage of her leaving before 5. She thought she might have left then come back, but the employer refused to let her view the rest of the tape. Instead, it told her she could resign or be dismissed, and when she refused to resign, it sacked her.
The Authority was satisfied she had been dismissed because she was pregnant. It awarded her over six months' lost pay (including notice), together with $9,000 compensation for humiliation. Unlike the Authority in the case mentioned above, however, it did not award her compensation for loss of the chance to apply for maternity pay. It seems that clarification is needed from the Employment Court about this issue, given the inconsistent approach in these two cases.
It's surprising that there are still employers out there who blatantly dismiss when an employee becomes pregnant (albeit that in these cases they tried to disguise the real reason for the dismissals). These decisions at least send a clear message that this is unacceptable.
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.
