Making a Pregnant Visa-Holder Redundant: It’s a Legal Minefield and Nightmare

1. Making a Pregnant Visa-Holder Redundant: It’s a Legal Minefield and Nightmare In our document, we have explained how to get professional taxation advice with taxation lawyers in Sydney. Click here to read more or for hiring our tax lawyers in Sydney. The Fair Work Commission (the Commission) recently tackled the complex case of Aimelyne Romeu v Quest Acquisitions No 2A Trust & Quest [2021] FWC 272 (22 January 2021). The case determined whether the employer was legally right in making a visa-holding employee on parental leave redundant. An Outline of the Case Ms Aimelyne Romeu (the Applicant) worked for Quest on Chapel, an apartment hotel business in Victoria, on a working visa. Romeu was hired as the Business Development Executive on 8 October 2018. In May 2020, Romeu told the company that she was pregnant and would go on unpaid maternity leave on 25 September 2020. However, Quest on Chapel suffered significant financial difficulties during the pandemic and told Romeu on 5 August 2020 that she had been stood down. On 17 September 2020, a meeting was held where it was announced that Quest on Chapel was closing and would stop trading come 15 October 2020. The company met with Romeu on 22 September 2020 and informed her that her position was being made redundant on the 25th of that month. Quest on Chapel gave Romeu details of vacant positions in Quest locations in Ballarat and Wangaratta that are owned by another franchisee. However, these jobs needed to be filled as soon as possible and Romeu didn’t want to work at the moment due to her pregnancy. Also complicating matters were the border restrictions currently at place that would’ve prevented her relocation. After losing her job, Romeu also lost her working visa. Romeu then submitted an application seeking a remedy for an unfair dismissal under Section 394 of the Fair Work Act 2009 (the Act). While the business had to close due to COVID-19, Romeu felt that her redundancy was implemented in an unfair way, especially due to her upcoming maternity leave and that she was on a working visa. Was the Redundancy Fair? According to Section 389 of the Act, a genuine dismissal meets the following criteria: ● ● The employer no longer requires the job to be performed by any one person; The employer has complied with any consultation requirements under any applicable Award;

2. ● 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 ruled that the redundancy was genuine and not unfair. This was due to Romeu’s job no longer being needed due to Quest on Chapel closing, Romeu not being covered by any Modern Award (thus consultation not being required) and it not being reasonable to relocate Romeu elsewhere due to the border closures and the other locations being owned by other franchisees. “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”, said Commissioner Bisset. “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”. What Employers Should Take From the Case The pandemic has left employees feeling vulnerable about their job security, especially those on working visas and taking parental leave. With employers having to navigate the rapidly changing economy and making quick decisions due to COVID-19, we have seen a huge uptick in claims by employees. Employers must prepare defenses for such claims and make sure that they are able to meet all of the legal requirements for making a job redundant. To make sure you are legally compliant when dealing with terminations, redundancies and managing employees on working visas, make sure to get in touch with Coleman Greig’s Employment Law Team. We are happy to help your company navigate these complicated areas. Source:colemangreig.mystrikingly.com