Victorian aged care centre operator fined over $30,000 in maternity leave discrimination case

The operator of a Victorian aged care facility has been fined over $30,000 for discriminating against a woman returning from maternity leave.

Andrew Dalley of Dalley Holdings, which operated the Bellarine Court aged care facility in Geelong, has been fined $3168 and the company has been penalised a further $27,720.

The Bellarine Court centre has since closed.

The company and Dalley (who was the manager of the facility and a part-owner) have also been ordered to pay employee Carolyn Jelcic $5000 in compensation after they were found guilty in the Melbourne Federal Court, following action by the Fair Work Ombudsman.

The case is yet another example of businesses which have failed to abide by workplace regulations when it comes to maternity leave.

Partner at TressCox Lawyers, Rachel Drew, told SmartCompany there are a number of obligations employers must be mindful of when it comes to workers on maternity leave.

“Workers must return to their former role, the courts recognise there can be changes to the role, but the employer must consult with the employee about the changes before they are made.

“The court’s biggest concern would’ve been toward the overnight work. The employer didn’t take into account her family-and-carer responsibilities,” she says.

The FWO ruled Carolyn Jelcic was discriminated against in 2010 when she tried to return from maternity leave to her previous position as a permanent, part-time personal care assistant.

Prior to going on maternity leave, Jelcic had worked six afternoon shifts and one night shift each fortnight at the centre.

When Jelcic returned to work, the company re-allocated her afternoon shifts to other workers and she was told there were no shifts for her. Later, she was only offered two night shifts a fortnight and no afternoon shifts.

When Jelcic told the company she could not do the “sleepover shifts” because of her new family commitments, she was told if she did not accept them, it would be taken as her resignation.

FWO group manager Michael Campbell said in a statement it is serious offence to breach workplace discrimination laws against employees on the grounds of pregnancy and family responsibilities.

“Employers also need to be aware that employees have a lawful right to resume their previous position – or another mutually agreed position – on return from parental leave,” Campbell says.

Drew says the penalty was substantial.

“It’s actually a relatively high fine, a fine of over $30,000 in total and the $5000 which must be paid to the employee, is certainly not cheap by any stretch of the imagination.

“A fine of this size indicates the court regarded it as a fairly significant breach,” she says.

Drew says there are a number of cases where employers haven’t understood their obligations and end up discriminating against an employee.

In July 2010, the FWO launched its first pregnancy discrimination case on behalf of a worker at a NSW printing company and since then there have been three other cases.

Last year, the former owner-operators of the Sydney printing company were fined a total of $23,760 after demoting and mistreating an employee after she told them she was pregnant.

“Employers need to be aware that special conditions regard to workers returning from parental leave. This is for male and female employees.

“You must recognise these special rules do exist and employers who do educate themselves and ask the right questions at the right time will avoid ending up in court,” she says.

Employers must also consult with employees who are on parental leave before making any decisions which affect their position.