A recent decision of the Federal Circuit and Family Court of Australia highlights the significant legal and reputational risks for employers who fail to meet their obligations to employees who return to work following parental leave and are breastfeeding.
In a default judgment, the Court ordered the United Arab Emirates Ministry of Foreign Affairs to pay an Australian employee more than $200,000 in penalties, compensation, interest and costs after finding she had been subjected to sex discrimination, denied workplace rights and dismissed after asserting entitlements relating to pregnancy and parental leave.
For employers, the case serves as a clear reminder of the obligations imposed by the Fair Work Act 2009 (Cth) (FWA) and the importance of properly supporting employees during pregnancy, parental leave and their return to work.
What Happened
The employee had worked for the UAE consulate in Melbourne for almost two years when she advised the consul general that she was pregnant.
She requested 14 weeks’ paid parental leave commencing in late December 2020. According to the Court’s findings, the request was refused and she was directed to commence leave earlier than requested.
In March 2021, she requested an additional 20 weeks of unpaid parental leave. This request was also refused, despite the entitlement to unpaid parental leave under the National Employment Standards.
When the employee was directed to return to work in May 2021, at short notice, she advised that she could not immediately arrange childcare but returned to work several days later.
After returning, she needed to regularly express breastmilk for her child. The Court found that she was required to express milk in a storeroom and was not provided with appropriate facilities to store it, leading her to store expressed milk in a suitcase filled with ice.
She also requested a flexible working arrangement that would allow her to finish work earlier each day to care for her child. That request was refused.
Later that year, after taking two days of annual leave, she was informed that her role would be made redundant and her employment was terminated.
Court Findings
The Court found that the employee had exercised valid workplace rights on multiple occasions under the FWA, including:
The Court determined that the employer had taken adverse action against her for exercising these rights and had:
The Court also concluded that, but for the adverse action taken against her, the employee would likely have remained employed until the consulate closed in August 2022.
Compensation and Penalties
The Court ordered the employer to pay:
This resulted in a total award of $203,383.
Importantly, the Court noted that the conduct appeared to be intentional and aimed at frustrating the employee or inducing her resignation.
The employer’s failure to properly defend the proceedings also contributed to the outcome, with the Court ultimately issuing a default judgment.
Key Lessons for Employers
This case highlights several critical obligations employers must meet when managing employees who are pregnant, on parental leave or returning to work after childbirth.
Eligible employees are entitled to unpaid parental leave under the National Employment Standards. Employers must not refuse these entitlements where the statutory requirements are met.
Employers must not take adverse action against employees because they exercise workplace rights, including requesting parental leave or flexible work arrangements.
Employees with caring responsibilities may request flexible work arrangements under the FWA. Employers must genuinely consider these requests, respond within the required time periods and if refused, may only do so based on reasonable business grounds.
Employers should provide suitable, private and hygienic facilities for expressing and storing breastmilk where employees return to work while breastfeeding.
Terminating employment shortly after an employee asserts workplace rights can create a strong inference of adverse action unless the employer can demonstrate a genuine and lawful reason.
Failing to properly defend a claim can result in a default judgment and substantial financial consequences.
In conclusion, employers who take proactive steps to support working parents, especially upon return to work following parental leave, will not only reduce legal risk but also strengthen employee engagement and workplace culture.
If you have any questions or need further guidance, please don’t hesitate to contact our Advisory team:
📞 (02) 6175 5900
📧 workplace@mba.org.au
