David Burton now leads the Employment Law Team at Mahony Horner Lawyers.  Contact David here.

OPINION: Don’t sack someone because they are pregnant. It should be obvious, but some employers still seem to ignore such basic rules, to their significant financial peril. Eventually.

Pregnant workers in New Zealand are protected by three main pieces of legislation – the Employment Relations Act, the Human Rights Act and the Parental Leave and Employment Act. All three acts provide protections for pregnant workers – the first two in the form of anti-discrimination rules, the latter by setting rules around taking parental leave and protecting the employee’s right to return to work.

A worker who claims to have been unlawfully discriminated against can choose to bring a claim either under the Human Rights Act or the Employment Relations Act, but not both.

Typically, workers will bring their claims under the Employment Relations Act, because it means other non-discrimination claims can be dealt with at the same time. It is also typically a quicker process, although the wait can still be much longer than is ideal.

A recently published decision of the Human Rights Review Tribunal highlights both the consequences of unlawful discrimination against pregnant workers, and the lengthy delays involved in human rights proceedings.

The claim involved worker at a cafe in Petone. Marika Beauchamp had started work at Adzuki Bean Cafe and Restaurant in March 2016, and by June 2016 she discovered she was pregnant. In good faith she immediately told the cafe’s director, Bing Du​. Beauchamp claimed she was initially congratulated, but that over time she found Du​ became less friendly.

Du is no longer a director of B & T Co (2011) Limited which trades as Adzuki Bean Cafe and Restaurant.

This culminated in a letter from Du in September 2016. The first sentence congratulated her on her pregnancy and said Du was happy for her. The second sentence gave two weeks’ notice of her dismissal.

Unsurprisingly, Beauchamp took issue with this. She had intended to work until closer to the delivery date, in March 2017. She sought legal advice.

The lawyer engaged by Beauchamp delivered a letter to the cafe, alleging that the dismissal had been a result of Beauchamp’s pregnancy and asking for her employment to continue until the matter had been resolved. The letter also set out comments Beauchamp claimed Du had made, including that she did not hire pregnant women.

Du called the lawyer back shortly after receiving the letter. She repeated that she “does not hire pregnant women” and claimed that the job was not suitable for them.

She said that the job involved lifting things and moving between tables, and made a reference to the “look”, which the lawyer understood to mean “it wasn’t the right look” to have a pregnant waitress.

The lawyer told Du that you are not allowed to discriminate based on pregnancy, and again asked for Beauchamp’s job back. Du said no, and the call ended.

Attempts at mediation in both the human rights and employment relations jurisdictions failed, and so Beauchamp elected to bring a claim through the Human Rights Review Tribunal. The hearing took place in mid-November 2019. Astonishingly, the decision was only released in March, almost 2½ years later.

B & T Co and Du tried to argue that the termination letter had confirmed Beauchamp’s request to finish work, rather than being Du’s notice of dismissal. The tribunal did not accept this, partially due to the language used in the letter.

The tribunal also referred to a letter sent in October 2016 by B & T Co’s lawyer at the time, which claimed the employee was casual and that further work had not been provided to her because of performance concerns. Although the B & T Co and Du tried to say the lawyer had misunderstood its instructions, the tribunal did not accept this.

Overall, the tribunal considered Beauchamp’s​ account more credible. It did not uphold claims relating to treatment during the period of employment, but found that her dismissal had been because of her pregnancy.

As a result, it ordered $25,000 in damages for humiliation, loss of dignity and injury to feelings, along with a relatively small amount for lost wages.

B & T Co will no doubt have felt the consequence of paying such a substantial award, and Du and the company’s other director have also been ordered to undertake training on their obligations under the Human Rights Act.

But one questions how satisfying the order will really be for Beauchamp​ after waiting 5½ years from the dismissal. That is a long time to have uncertainty hanging over you, and raises questions about access to justice.

A lot can happen in a person’s life over five years. Some employees might ‘move on’ from the harm in that time, but others might feel it all the more keenly for it not having been resolved.

There is no reason to doubt the tribunal attempts to reach determinations as quickly as it can, but it is not achieving that in a timeframe that most people would see as reasonable.

The Employment Relations Authority has faced similar struggles, but not to the same extent.

Parliament attempted to address this by imposing a standard timeframe of three months for determinations to be released after a hearing, except where exceptional circumstances exist.

The authority is also required to give oral determinations at the hearing where it can. These measures have probably led to more determinations being released promptly, but there are still often longer waits. Resourcing seems to be the real issue.

Justice delayed is not justice served. Would you be alright waiting 5½ years to get a decision on your case?