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  1. #441
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    Ok... I have a work related question. I have a suspicion that there may be a bit of discrimination going on and want to get your thoughts.

    The situation is this. There is a major restructure going on and in all likelihood my current job will no longer exist when I (theoretically) return from maternity leave. Essentially they will consolidate my department, and two others into one. There will be jobs I am qualified for that are/ will be similar to my current role in the new structure, (there are also no equivalent jobs to mine in the othe two departments that we are consolidating with), however I'm hearing whispers that there are preconceived views about who will fill those roles, and my name isn't one of them "because she is going on maternity leave". So I can see two issues which I think create grounds for discrimination...

    1. That I am not/ or will not be consulted with re any available jobs in the new structure because I'm on about to go on maternity leave, nor given the opportunity to apply for them, and
    2. I suspect there will not be a merit based process of appointment to the positions in the new structure, and certainly it's unlikely there will be PDs or clear criteria for appointment to these roles

    ....therefore my employer has neglected to provide for my entitlement to come back to the same or similar position, specifically due to excluding me from consideration of available roles in the restructure, due to being on maternity leave. (In fact one of the draft org structures I've seen shows one of my direct reports in the role that would be most equivalent to my current role!)

    In addition to the above, there is some political ill feeling between the Exec General Manager (ie the ultimate decision maker) appointed to look after the new area and my department (particularly towards me and my boss), so I suspect there will be a bit of politics and personalities influencing the decisions around who gets what job.

    Now, I say all this cause I think I've convinced myself there are (or will be) clear grounds for discrimination. So I'm looking for some advice. For anyone that works in hr/ employment law, what do you think about my reasoning? Is this real or am I grasping at straws cause I don't really want to go back anyhow....

    It's kind of surreal cause I've adopted a "what will be will be" attitude and I'm not overly worried about the outcome of all this, but I can't stop thinking about it at the same time, purely based on principle!! Oh the joys of working in a chauvinistic environment! I never thought I'd be in this position.

  2. #442
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    ^^ that does all sound very suss! Perhaps make a point of asking.. and so when I return, where do I fit in? As it doesn't seem that you have made an allowance for this.

    There is a chance that maybe they aren't doing it deliberately, but need to be made aware of what your rights are?

  3. #443
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    @90Bayside - employment law is my bread and butter so I’ll have a go at responding to your query.In order to determine whether you have been discriminated against we would need a few more facts that what you have been able to provide here, but if we work on the assumption that you may have been discriminated against and look at your options, that may be the best way forward.

    Your unfair dismissal rights will be determined by whether you are covered by a modern award, and if not, whether you earn less than around $133,000 (excl super). If either of those apply you have access to the unfair dismissal jurisdiction.This is relevant for two reasons (1) if they make you redundant and do not follow the Award consultation procedures (including during on your maternity leave), then any redundancy based termination can be challenged as not being a “genuine” redundancy. (2) If they make you redundant and do not redeploy you into a suitable alternative position, then that is also not a “genuine” redundancy.Your employer would be wise to wait until you are ready to come back to work and then assess at that point whether there is suitable work for you.To some degree an employer can choose who they want to fill any suitable alternative roles from the available candidates (including your subordinates), but certainly if there is a significant difference between your capabilities and that of the successful incumbent, it lends strength to your unfair dismissal argument.If a redundancy occurs in these circumstances and you want to dispute the dismissal, you have 21 days from the date of termination to lodge your unfair dismissal claim with the Fair Work Commission.All the forms are online.The process starts with a conciliation, then moves to a hearing in the Commission, you do not have to use a lawyer or advocate, but it certainly helps. You might get reinstated to your employment (with lost wages), or maximum 6 months compensation.You will not get your costs paid.

    The next avenue available to you is “adverse action” - this is likely a better option for you.This applies to all employees irrespective of award coverage or earnings.This is where you have been negatively impacted in your employment (e.g. your employment is terminated), because of pregnancy/family responsibilities.This is where you would argue that you were not allocated the suitable alternative positions because you’re pregnant.This claim can be lodged during employment or within 21 days of your termination.The forms are also available on the Fair Work Commission website.The process starts in the Commission where you would have a conciliation, and if that doesn’t resolve the matter, it would go to the Federal Court at which point you would need a lawyer.If you decide to go down that path and you are in Melbourne I can recommend a good plaintiff lawyer who has some integrity.This is scarier for employers because the damages that can be awarded by the Federal Court are unlimited.

    The third avenue is a discrimination claim to the Victorian Equal Opportunity and Human Rights Commission.This can start with a conciliation with VEOHRC (if your employer agrees to participate) and then goes to VCAT for hearing.It’s probably the weaker of the three options in terms of the outcomes that you might achieve.

    Basically, if you have been discriminated against, or if your employer has failed to comply with its consultation obligations, there are ways for you to challenge what they’ve done.But if you don’t want to be there anyway, challenging their conduct may not achieve anything valuable in practical terms.You could lose the redundancy pay you receive, you might get reinstated to a job in a company you don’t want to work for, or you might get damages after a long fight, which doesn’t do much more than cover your legal costs.(You usually don’t recover your costs in these types of cases even if you win).If you are not worried about burning your bridges, you might choose to raise with your employer (after they have advised you of your redundancy), that you consider that you have been subject to adverse action on the basis of your pregnancy - that might lead you down a negotiation path where you could achieve an additional payment in exchange for your promise not to sue - but that will depend on your employer’s attitude, how candid they are with their advisors and what advice they receive. If that is something you're considering, it would be wise to ask some questions along the way to gather info you can use in your negotiation.


    Not sure if any of that helps (it’s hard to narrow it all down into a nutshell), but if you would like further info, you might like to PM me.
    Last edited by Vixjc; 28-08-2014 at 09:47.

  4. #444
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    Hi ladies, there are some nice dresses on sale at Soon at the moment

    http://www.soonmaternity.com/sale/w1/i1001204/

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  6. #445
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    Thanks Vixjc...

    Not covered by modern award. My employee has a track record previous discrimination and is the type of employee who has a tendency to settle these things out of court.

    And Im in Qld, not melbourne

    A few things need to fall into place before this becomes a reality,but i think its important to consider options when/ if (but probably when) these things happen!!

    And your point about not wanting to be here is very valid! I don't want to work here anymore and the worst possible outcome is that they give me a job!!

    HHmm. food for thought. If I need any more info, I will PM you and keep this off the general thread.

    Hope you are all having a good day ladies!

  7. #446
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    @Megsarama26 thinking of you and hoping things are going okay xx

  8. #447
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    Ditto from me @Megsarama26 - I'm guessing you've got a lot going on, I'm really hoping things are going as well as possible xxx

  9. #448
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    Quote Originally Posted by Mrs Hopeful View Post
    @Megsarama26 thinking of you and hoping things are going okay xx
    hi gals, just subbing from her old IVF thread to find out how megs is going. I hope she is ok.

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  11. #449
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    Sorry for the lack of updates ladies, its been a big few days... but miraculously im still holding these babies in! I think it will be soon though. My membranes are through my cervix and in my lady bits now (I can feel them constantly) but the tightenings have been held at bay and just trying to buy any extra time we can. Today I am 25+2. Its still far too early but its so much better than we thought we would get when this ordeal began.
    My next update will most likely include pictures of my very tiny, hopefully alive precious little ones.

    Sent from my GT-I9305T using The Bub Hub mobile app

  12. The Following 3 Users Say Thank You to Megsarama26 For This Useful Post:

    emski72  (28-08-2014),Molros  (29-08-2014),Wishnhope  (28-08-2014)

  13. #450
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    Glad to hear you're hanging in there Megs.
    Xx

    Sent from my GT-P5110 using The Bub Hub mobile app


 

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