A beauty therapist (Zelinda Doria (ZD)) employed by a spa (Medispa) discovered she was pregnant in November 2016. She suffered from morning sickness in her first trimester. In the fortnight after learning of her pregnancy she was sent home early twice and took six days of leave.
While on sick leave her manager contacted her to organise a meeting to discuss her “parental leave and employment situation”. Following the meeting, Medispa emailed ZD and required her to start her primary carer leave under the Parental Leave and Employment Protection Act (PLEPA) the following day. It said this was due to the amount of sick leave ZD had taken in the previous three weeks, ZD’s acknowledgement that she could not at that time perform her full required hours due to her morning sickness, and the fact that the workplace involved many chemicals that could harm her health.
Section 14 of the PLEPA says employers can require pregnant employees to go on primary carer leave earlier than planned by the employee if the employee is unable to safely or “adequately” perform her work due to pregnancy.
Unfortunately, ZD was not entitled to paid parental leave when she was required to take it by her employer because WINZ told her she had not worked enough hours for Medispa. She therefore lost her source of income immediately and was denied the opportunity to work even though she had intended to work for the remaining seven months of her pregnancy.
ZD took a claim to the Human Rights Review Tribunal (HRRT). Medispa argued that although ZD was a “qualified” beauty therapist, she was not qualified to work at the time she was put on leave because she was incapacitated by morning sickness.
The HRRT said the right to require an employee to go on parental leave was a “significant exercise of an employer’s powers” and section 56 of the PLEPA required the employer to have reasonable justification for its exercise. It found that Medispa’s argument that ZD was unqualified was untenable given ZD’s medical evidence was that she was fit and healthy and capable of performing her duties despite the morning sickness which is a common symptom of early pregnancy.
The HRRT also found that the decision to bar ZD from the premises because of safety concerns (the chemicals) was not supported by any evidence and there had been no meaningful consultation between employer and employee about medical information or alternatives to taking early parental leave (for example whether ZD could have carried out other duties, worked reduced hours, or taken more breaks).
ZD was awarded compensation of $75,000 plus approximately $25,000 for loss of income and other benefits.
It is important to navigate an employee’s parental leave rights and obligations carefully and not to make hasty decisions. This was a costly mistake for Medispa. Bartlett Law can advise employers and employees on their legal rights under the parental leave legislation. Contact us for a confidential consultation (lawyer@btlaw.co.nz).