Commencing and ending employment

Key points

  • You should not allow assumptions and stereotypes to influence your decision when selecting an applicant – you could miss out on a valuable employee.

  • You must ensure sex, pregnancy, potential pregnancy, parental leave or family responsibilities is not one of the reasons for not hiring an employee or making an employee redundant or terminating an employee’s employment. 

  • If you are making a position redundant, you should make sure pregnant employees, employees on parental leave and employees with family responsibilities are considered in the same way as everyone else and that an employee’s sex, pregnancy or family responsibilities does not unfairly influence the decision process.

Top Tip

Remember employees on parental leave

Employees on unpaid parental leave need to be consulted if there is going to be a significant change to their pre-parental leave position.

This may include a change in status, pay, location or redundancy due to a re-structure. They must be considered in the same way as other employees.

How can I ensure our recruitment process is consistent with pregnancy and return to work anti-discrimination laws?

You should not allow assumptions and stereotypes to influence your decision when selecting an applicant (e.g. assuming that an applicant with family responsibilities is unable to travel).

Pregnancy, potential pregnancy, marital/relationship status, family responsibilities or breastfeeding should not be unfairly taken into account when considering a person’s suitability for the job or promotion.

You should not ask questions about a person’s pregnancy or family during recruitment. Only ask questions relevant to the person’s ability to perform the requirements of the job.

There may however be particular circumstances (such as when there are concerns about work health and safety issues) where it may be appropriate to take into account an applicant’s pregnancy and the potential impact on their capacity to do the requirements of the job.

Prior to an employer refusing a pregnant applicant employment on the basis of work health and safety or medical issues, all reasonable options for accommodating the application should first be considered.

Recruitment and labour hire agencies are also required to comply with the law and should not exclude applicants because they are pregnant or have children.

For further information see the Australian Human Rights Commission’s Good Practice Good Business step-by-step guide to preventing discrimination in recruitment.

Can I end the employment of a pregnant employee, an employee on parental leave or an employee who has family responsibilities?

While you can decide to terminate an employee’s contract, or make their position redundant while they are pregnant, on parental leave, or after returning to work, you must be very careful to ensure that the employee’s pregnancy, parental leave or family responsibilities is not one of the reasons for that decision.

Actions to end employment can be the subject of claims under the Fair Work Act, the Sex Discrimination Act or state or territory anti-discrimination legislation.  It may also be a breach of the employment contract.

How should I handle redundancy?

If you are making a position redundant, you should make sure pregnant employees, employees on parental leave and employees with family responsibilities are considered in the same way as everyone else and that an employee’s sex, pregnancy or family responsibilities does not unfairly influence a decision process.

For example, if voluntary redundancies are being offered, then these should also be offered to employees on parental leave. It may be discrimination to have a selection criterion based on who did not receive a recent performance appraisal or bonus.

How do I best manage performance concerns?

While you are entitled to dismiss an employee because of poor or inadequate performance, you are not entitled to dismiss an employee if a reason for the dismissal (even if it is not the only or main reason) is, for example, the employee’s sex, pregnancy, potential pregnancy or family responsibilities.

Confusion about the motives for dismissal of a pregnant or potentially pregnant employee can often lead to an allegation of discrimination. This can be the result of poor communication and inadequate management practices, for example, where an employee with unsatisfactory work performance is not made properly aware of the performance issues prior to, for example, the pregnancy and/or dismissal. Where an employee is under performing, it is important to inform the employee directly and conduct regular performance reviews and counselling sessions. Thorough documentation should be kept. Conducting the first such review or dismissing an employee after the employee announces a pregnancy may lead to considerable misunderstanding and allegations of discrimination.

More information

Australian Human Rights Commission

Fair Work Ombudsman

Fair Work Commission