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Making a pregnant, visa-holder redundant – a legal minefield

Recently, the Fair Work Commission (‘the Commission’) handed down its decision on Aimelyne Romeu v Quest Acquisitions No 2A Trust & Quest [2021] FWC 272 (22 January 2021), a case where it had to determine whether the dismissal of a visa-holding employee who was on parental leave was a genuine redundancy.

The Facts of the Case

The Applicant, Ms Aimelyne Romeu, was in Australia on a working visa and was employed by the Respondent, Quest Acquisitions No 2A Trust & Quest Acquisitions No 2b Trust trading as Quest on Chapel, which is an apartment hotel business located in Victoria.

Romeu was employed by Quest on Chapel as a Business Development Executive from 8 October 2018. In May 2020, Romeu advised Quest on Chapel that she was pregnant. She was to commence unpaid maternity leave on 25 September 2020. However, due to significant Stage 4 restrictions and regulations imposed on Quest and other Victorian businesses by the Victorian government in August 2020, in response to COVID-19 outbreaks, Quest on Chapel suffered a significant downturn in business. Quest on Chapel advised Romeu on 5 August 2020 that she had been stood down.

On 17 September 2020, senior management from Quest on Chapel’s Head Office held a meeting where it was announced that Quest on Chapel was to close. It would cease trading on 15 October 2020.

Quest on Chapel invited Romeu to a meeting on 22 September 2020, where she was advised that her position would be made redundant on 25 September 2020.

Quest on Chapel provided Romeu with details of vacant positions under another franchisee under the Quest network in Ballarat and Wangaratta that may have provided suitable employment for her, but these positions required immediate commencement. Romeu indicated that she was not looking for a role immediately as she was about to give birth. Border restrictions would have nevertheless prevented her relocation.

Due to the loss of her job, Romeu also lost the sponsorship for her working visa.

Romeu made an application seeking a remedy for unfair dismissal in accordance with Section 394 of the Fair Work Act 2009 (Cth) (‘the Act’). Romeu accepted that the business needed to close due to the effects of COVID-19, but alleged that the manner in which her redundancy was implemented was unfair, and that she should have been given greater notice of the redundancy due to her upcoming  parental leave, and the fact that she required time to find another Australian employer to sponsor her to remain in Australia.

Was the dismissal a genuine redundancy?

Under s.385(d) of the Act, a dismissal is not an unfair dismissal, if the dismissal was a genuine redundancy. Section 389 states that a person’s dismissal is a case of genuine redundancy if all the following factors are met, which are that:

  1. The employer no longer requires the job to be performed by any one person;
  2. The employer has complied with any consultation requirements under any applicable Award;
  3. It would have been reasonable for the employee to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

The Commission found that:

  1. Romeu’s role was evidently no longer required due to the closure of the business;
  2. Romeu was not covered by any Modern Award and therefore was required to be consulted with; and,
  3. It was not reasonable to redeploy Romeu to any associated entity of Quest on Chapel due to border closures, and the fact that other Quest branches were owned by other franchisees.

Given all the above findings, the Commission was satisfied that the termination of Romeu’s employment was a genuine redundancy, and as a result, was not an unfair dismissal.

In response to Romeu’s complaint about the manner in which the redundancy was implemented, Commissioner Bisset stated that:

“I acknowledge that the Applicant applied for maternity leave safe in the knowledge at that time, that she had a position to return to and that sponsorship of her working visa would continue. I also acknowledge the effect of the limited notice of the impending loss of her visa on the Applicant. The blame for this however does not rest with the Respondent. As has been often repeated these were unprecedented times…. If the Applicant was not about to give birth or if the borders were not closed there were opportunities interstate with other franchisees that she might have taken. It was no-one’s “fault” but rather a convergence of circumstances”.

Key Lessons for Employers

The uncertainty of employment for many during COVID-19 has understandably left many employees feeling vulnerable, and for those on working visas, pregnant or on parental leave, that vulnerability can be even more heightened. Heightened employee vulnerability coupled with swift decisions being made by employers’ in response to ever-changing business disruptions caused by COVID-19, has resulted in an increase in claims by employees.  Employers’ therefore need to prepare themselves to defend such claims by ensuring that if they are making a role redundant, that they are able to meet the requirements under s.389 of the Act, as set out above.

If you need assistance with terminations, redundancies or managing employees on visas, or have any questions about this article, please do not hesitate to contact a member of Coleman Greig’s Employment Law Team.

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