What You Need to Know About the Challenging Legal Ramifications of Making a Pregnant Visa-Holder Redundant

The recent court case of Aimelyne Romeu v Quest Acquisitions No 2A Trust & Quest [2021] FWC 272 (22 January 2021) saw the Fair Work Commission give its verdict on the complicated situation regarding a pregnant, visa-holding worker that was dismissed as a redundancy while she was on parental leave. It sets an important precedent, so let’s go through the facts of the case, the verdict and what employers can learn from it going forward.

The Case’s Key Details

The case was filed by Ms Aimelyne Romeu, who was in Australia on a working visa and was employed by Quest on Chapel, an apartment hotel business in Victoria. Romeu began working as a Business Development Executive on 8 October 2018. In May 2020, Romeu informed her employer that she was pregnant. She was set to begin unpaid maternity leave on 25 September 2020. However, due to the COVID-19 pandemic and Stage 4 restrictions that the government imposed on businesses, Quest on Chapel saw a large decrease in business. The employer told Romeu on 5 August 2020 that she was being put on leave.

The next month on 17 September 2020, Quest on Chapel announced that the company was closing down and stop trading on 15 October 2020. Subsequently, Quest on Chapel told Romeu during a meeting on 22 September 2020 that her position was being made redundant later that month on 25 September 2020.

Quest told Romeu about other suitable job openings in its Ballarat and Wangaratta locations, which were owned by different franchisees, but said that they needed to fill the roles immediately. Romeu wasn’t interested in taking a role this soon as she was nearing her due date, and border restrictions would prevent her relocation even if she was interested. As a result of losing her job, Romeu also lost her working visa sponsorship.

Under Section 394 of the Fair Work Act 2009, Romeu sought a remedy for an unfair dismissal. While Romeu admitted that the business had to close due to the pandemic, she said that her redundancy was implemented in an unfair notice and that she should’ve received greater notice due to her pregnancy and need to find another working visa sponsor to stay in the country.

Examining the Legitimacy of the Redundancy

Section 385 of the Fair Work Act 2009 states that a dismissal isn’t unfair if it’s a genuine redundancy. Section 389 determines the following three factors must be met to determine a genuine redundancy: the employer no longer needs the job done by any one person, the employer has complied with consultation requirements under any Award and it would be reasonable for the employee to be redeployed elsewhere within the company.

The Fair Work Commission came to the conclusion that Romeu's role was no longer required due to the closure of the business, she wasn't covered by any Modern Award and was required to be consulted with and it wasn't reasonable to redeploy Romeu elsewhere due to border closures and that other Quest branches were owned by other franchisees. As a result, it was ruled that Romeu wasn't unfairly dismissed.

What Employers Can Learn From This

The COVID-19 pandemic has led to much uncertainty for employees and employers alike. Many employees feel vulnerable, especially those on working visas or on parental leave. With companies making swift decisions due to an ever-changing work landscape, we've seen an increase in claims by employees. Employers must prepare themselves to defend their actions and make sure that they meet the requirements of Section 389 of the Fair Work Act 2009 if they are making a role redundant.

If you need assistance with protecting your company and dealing with terminations and redundancies, please contact the Coleman Greig’s Employment Law Team.

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