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Jodiebee
15-08-2013, 06:41 PM
Good Afternoon HR Community

I am baffled and would appreciate some guidance and thoughts on this very delicate matter :confused:

Our organisation is proud of its equal employment opportunities and diversity initiatives.

We have advertised a role and a woman who is 4 months pregnant has applied. If successful she has advised us that she would take one month off before the birth and then a six month period of leave. She would finish work in 4 months time. she hasn't advised the company of her expectations of us in four month's time.

We understand that she would not be eligible for 12 months parental leave.

The difficulty for the company is that the responsibilities of the role would require that someone else do the job during her absence and that person could only be hired on a contract due to new changes in the Fair Work Act. Finding someone for a six month contract in this industry and this particular role will be very difficult. The training along takes 3 months.


It is our conclusion that the employee would expect that the company grant her a period of unpaid leave or that she would resign after 4 months. If the company chose not to grant this leave would that be discrimination. What would happen if the employee chose not to resign?

I am so confused!! Your advice or suggestions would be very welcomed !!

Moz
15-08-2013, 09:10 PM
Avoid the confusion - employ someone else.

There comes a point where you have to do what's best for the operation of your organisation.

If it takes three months to train someone, and she would go on leave after four months, I would have thought it was clear what you have to do.

Jodiebee
15-08-2013, 10:09 PM
Thanks Moz. I guess I am just a little concerned that she may be able to suggest that the company has discriminated against her because of her pregnancy.

How do I demonstrate that she wasn't successful when she clearly has all of the skills and experience that the we have been searching for ..

Would it be fair to say that she was unsuccessful because she needed six months leave and not because she was pregnant per se ... as an example if a not pregnant employee applied for a role and told the organisation that they needed six months leave four months later for personal reasons we would more than likely not offer them the role because they wouldn't be able to meet the requirements of the role ... same thing?


I know what you are saying is right but we are so worried about a discrimination claim ..

Moz
15-08-2013, 11:34 PM
I understand your concern and it's easy for me to say "just don't hire her".

I'm no expert, but I believe you are on the right track with the leave issue. To my mind the reason she wants the leave is irrelevant - it simply isn't a workable scenario for your organisation. It would be different if she was already working for you. But she doesn't, and as you rightly say, if someone wanted the leave for some other reason you wouldn't take them on. So the pregnancy is not the issue - it wouldn't make any difference why the applicant wanted the leave.

Have you considered asking the Human Rights Commission to seek their view? (anonymously)
Sex Discrimination | Australian Human Rights Commission (http://www.humanrights.gov.au/our-work/sex-discrimination)

In the mean time I assume you are looking for another candidate, which you need anyway, and would solve your problem. "There was another candidate whom we considered to be more suitable".

Qld IR Consultant
16-08-2013, 06:42 AM
Be very very careful. The Adverse Action provisions are open to her if she even so much as gets a wiff of her pregnancy being the reason why she was not employed.

Qld IR Consultant
16-08-2013, 06:45 AM
Section 351 Div 5. I have gone through a rather prolonged dispute on this very same sort of matter. Potential employee claimed that her impending pregnancy was the reason why she did not get the job. Remember with AA it is a reverse onus of proof, which means the employer has to prove beyond reasonable doubt that what the employee says happened actually didn't....Very very difficult to defend.

Moz
16-08-2013, 08:06 AM
I didn't know adverse action could be claimed by people who were not your employees. That's ridiculous!

Qld IR Consultant
16-08-2013, 09:03 AM
Welcome to my world :)

Provision states "prospective employee" and ropes in the discrimination legislation. Be mindful also that the 21 day time limit therefore may not apply and the prospective employee may be able to lodge a claim even a couple of years later......Don't quote me on this point though, still waiting on legal advice on it but I suspect it is correct.

Employers and HR beware!!!

Moz
16-08-2013, 10:10 AM
more like, welcome to the mine field :)

I suspect there are lots of employers who are unaware that AA could be claimed by external job applicants. I though it was designed to prevent constructive dismissal.

I wonder what the siutation is if you are using an external recruiter and the recruiter rejects a candidate like the one in this case?

Qld IR Consultant
16-08-2013, 10:25 AM
Well thats the next issue isn't it Moz :) I would say that recruiters are equally exposed as employers who do their own recruitment but don't quote me :)

Moz
16-08-2013, 11:12 AM
Jodiebee, maybe the Fair Work Ombudsman could give you some guidance on this;
Our role - About us - Fair Work Ombudsman (http://www.fairwork.gov.au/about-us/our-role/pages/default.aspx)

Moz
16-08-2013, 11:27 AM
Looks like devling into the minutae of the Act will not be required, it's all made quite clear here;

Discrimination - Employment - Fair Work Ombudsman (http://www.fairwork.gov.au/employment/discrimination/pages/default.aspx)

The big question is, can you reject someone because they want to take time off due to pregnancy because it wouldn't suit the needs of the employer.

It seems absurd that you could be forced to employ someone, knowing that 1 month after they finished training they would disappear for 7 months, and that you would then have to hire someone to replace them on a contract basis, who would also have to be trained!

This effectively means you would have to have two people in training concurrently to fill one vacancy.