Fair Work Ombudsman slams aged care facility for maternity leave discrimination

The Fair Work Ombudsman is taking a Victorian aged care facility operator to court for allegedly discriminating against an employee when she attempted to return to her job after taking maternity leave.

The issue of maternity leave has been front and centre for small business, as entrepreneurs continue to protest over their responsibility to act as paymasters for the Federal Government’s parental leave payments.

The government argues having businesses distribute the payments will make it easier for the primary parent to return to work, having stayed in touch with their employer during leave.

According to the FWO, Andrew Dalley, a part owner and manager of the Bellarine Court aged care facility in Geelong, discriminated against a personal care assistant in 2010 when she attempted to return from maternity leave to her previous position.

SmartCompany contacted Bellarine Court, but was told Dalley was not available.

The FWO has accused the company of creating a new roster that did not include the employee, and that her previous shifts had been reallocated to other workers. When she returned to work, she was told no shifts could be given to her.

The only other work that was offered included two “sleepover” shifts per fortnight, and no afternoon shifts, but the employee could not work those particular shifts because she had to care for her new child.

The FWO alleges she was then dismissed.

“The Fair Work Ombudsman claims the conduct breached provisions of the Fair Work Act that make it unlawful to discriminate against employees on the grounds of pregnancy and family-and-carer responsibilities.”

“The conduct also allegedly contravened the requirement under workplace laws for employers to: consult with employees who are on parental leave about decisions that may affect their position; and to allow employees to resume their previous position – or another mutually agreed position – on return from parental leave.”

The company also allegedly broke some other workplace laws, “including laws that make it unlawful to take adverse action against an employee because they have accessed a workplace right”.

Dalley and the company face fines of between $6,600 and $33,000 per breach. The FWO is also seeking an order to make the company pay compensation for the work lost.

This is not the first time the FWO has taken action against companies for not following maternity leave laws. Earlier this year, the owner operators of a printing business were fined after demoting an employee after she said she was pregnant.

The operator of a mobile phone business in Geelong was also fined nearly $60,000 after an employee was discriminated against when returning from maternity leave.

In 2009, the FWO originally set its sights on companies breaching maternity leave laws.

The case is listed for a directions hearing in the Federal Court in Melbourne on August 3.