Fired over morning sickness

It is illegal to discriminate against pregnant women in the workplace.
It is illegal to discriminate against pregnant women in the workplace. Photo: Getty Images

A New Zealand service station worker was wrongfully fired from her job after her sickness during pregnancy was treated as a health and safety issue by her boss.

Karena Spencer was awarded $3581 ($A3400) in compensation and lost wages after Employment Relations Authority member Paul Stapp decided she was unjustifiably dismissed from the Ashhurst Service Centre by Barry Jones.

Spencer started working at the service station in February last year.

Jones employed her so he could take care of other business activities.

They never signed an employment agreement, but the pair had an oral agreement that she would cover his hours casually until a self-pay system was installed at the service station.

Soon after starting, Spencer became pregnant with her third child and became unwell.

She had a long history of being unwell during pregnancy, but worked through it.

That concerned Jones and his wife, who started hearing complaints from customers about Spencer not being able to cope with the work.

The Joneses started to worry about health and safety issues due to Spencer's health, which led them to bar her from working.

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She worked there for seven weeks, working an average of 28.75 hours a week.

The Joneses argued that there was no employment arrangement, because the work was casual and there was never an agreement on how long she would work there.

But Stapp said there was an employment relationship, because it was said Spencer would stop working around the time the self-pay system was installed.

"The record shows that there were regular hours worked by Ms Spencer.

"The Joneses' claim is entirely misconceived."

Not having an employment agreement was a "deliberate" move by Jones, Stapp said.

"I hold that his action was for his own convenience and the result was to minimise the risk of Ms Spencer becoming aware of her rights as an employee because nothing was in writing."

"The failure to retain an individual employment agreement is a breach of the Employment Relations Act."

While the Joneses were genuinely concerned about their health and safety obligations, they did not properly investigate Spencer's unwellness and did not follow proper procedure, Stapp said.

Spencer was not given all the information about customer complaints, not given the chance to respond to them, not given the opportunity to get advice before being dismissed, and her medical details were never asked for.

"I hold that the failures were not minor, and resulted in Ms Spencer being treated unfairly."

The Joneses claimed Spencer set them to get paid parental leave, but Stapp said it was not guaranteed she would be entitled to it.

- The Manawatu Standard