Kate Ausden Blog

The Managers of a Tavern, located in Far North Queensland, have been ordered to pay compensation and pecuniary penalties to an aggrieved employee.

A pregnant employee, employed as a bottle shop attendant, was advised by her GP that she should not lift any items weighing more than 5kg. 

The employee informed the employer that she:

  1. was pregnant;
  2. was unable to lift heavy items including, boxes of wine and alcohol; and
  3. wanted to be transferred to the available “bar staff” position or otherwise be put on “unapid, no safe job leave” (refer section 81 of the Fair Work Act 2009).

In response, the employer and/or agents for the employer said the following:

  1. “I cannot tell you not to unload as that is not fair on me, as I have enough to do”;
  2. that it was a “bad look” for pregnant women to work behind a bar;
  3. even though the employee asked for “unpaid, no safe job leave”, the employer replied, “we don’t do paid leave”; and
  4. did not guarantee that a job would be available upon her return to work.

The employer then terminated her employment.  The Separation Certificate provided, “due to pregnancy.  Angela is unable to continue with her position as (a) bottle shop attendant.”

It was held that the employer took adverse action against the employee because of her pregnancy in breach of section 351 of the Fair Work Act 2009.

Pursuant to section section 550(2)(c) of the Fair Work Act, the managers were “accessorily liable” for the compensation and pecuniary penalties payable including, $15,000 for hurt and humiliation.

This is a timely reminder to all employees (not just business owners), that if you are “directly or indirectly”, knowingly concerned in or party to” a contravention of the Fair Work Act you may be personally liable for compensation and pecuniary penalties paid to an aggrieved employee.

Leuttin v Sheralee Hotels Pty Limited Trading as Imperial Tavern & Ors [2019] FCCA 2471 (28 August 2019)