Payout for maternity leave sacking

Last updated 14:00 14/03/2014

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A cafe floor manager who was dismissed after she went on maternity leave has been awarded more than $13,000 in compensation for lost wages and emotional distress.

Warkworth's Farmhouse Cafe employed Louise Lock as a floor manager in February 2012 but paid her less than the agreed rate, didn't provide her with a contract until months after her start date, and dismissed her without justification after she took maternity leave, the Employment Relations Authority (ERA) said.

In a decision released this week, ERA member Rachel Larmer said she considered the cafe's actions were unlawful and arose only because of Lock's pregnancy.

The ERA said Lock gave her employer notice of her pregnancy in January 2013, saying she wished to take maternity leave from April 26 until August 2 and that she would be in contact as soon as possible regarding her intention to return to work.

But when she contacted the Farmhouse Cafe expressing her desire to return to work on August 3, she was asked to attend a meeting at which she was told she was "too late" to return.

Lock sought help from the Department of Labour which resulted in another meeting with her employer at which her position in the cafe was discussed.

She was told by cafe owner John Ren that he had intended to give her a warning before she went on leave because of her moods and the fact that she couldn't control her emotions because she was pregnant.

No further information was given to her, the ERA said.

Over the next few weeks, the Farmhouse Cafe offered Lock two one-off shifts which she was unable to work due to short notice and sickness. The cafe said this showed she was not prepared to work.

The ERA said this was an unreasonable view because Lock was entitled to take paid sick leave as an employee.

Lock was then advised that she could only have a few hours work to start with and was given no timeframe of when she could return to her pre-parental-leave position.

The ERA said changes at the cafe were not communicated to Lock and neither were the reasons she had to work short hours to begin with.

"I find that Ms Lock made the Farmhouse Cafe aware of the need for her days and hours of work to be set so she could arrange childcare and that the sporadic offers of work caused her difficulty with arranging childcare at short notice," the ERA decision said.

Because Lock was working sporadic hours at short notice she was not able to arrange formal childcare and the person she was relying on became annoyed and told her they could not help.

Lock said she considered her employment at an end when, two months after her expressed desire to return to work, she had not been offered any regular or ongoing hours. The cafe denied this and said she left her job voluntarily.

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The ERA ruled that Lock's employment ended as a result of the cafe's actions.

"It is evident that Ms Lock had been attempting to return from parental leave from August 3 2013," the decision said.

"As at September 17 Ms Lock had not been allowed to return ... and no arrangements had been made for her for the remainder of the month."

The ERA said that although the Farmhouse Cafe did not expressly dismiss Lock, a dismissal "may still occur where a sending-away of an employee occurs at the employer's initiative".

This had occurred in this case and so amounted to a constructive dismissal, the decision said.

The ERA also found the cafe did not comply with legal or statutory obligations.

The cafe has been ordered to pay Lock almost $7000 for three months lost wages calculated at her contractual wage of $15 an hour for 35 hours per week.

Another $6500 has been awarded to Lock to compensate for distress caused as a result of her unjustified dismissal.

- Fairfax Media

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