The employee worked on a fishing boat as a galley assistant. The trips that she would go on were usually about six to seven weeks duration.
She arrived one day to help prepare the boat to leave on a trip. She recently had found out that she was pregnant and informed the Ship’s Captain. He asked for a Doctor’s Certificate. She got a letter from her midwife stating that she was in excellent physical health and that the midwife had no hesitation in recommending that she was able to continue in her employment and was fit to travel on the ship.
The employer’s view was that she could not go to sea if she was pregnant. The employee responded that she was fit, strong and would be okay. The company consulted a Maritime Safety Authority Doctor. He advised that there were risks if she went to sea for a period of five to six weeks. In the event of emergency while at sea there were issues with respect to evacuation and the availability of medical care for a pregnant woman.
At a further meeting the employer said it was not happy with her sailing in her condition. She was told that she was putting the baby, herself, the crew and the boat at risk. The complainant reiterated that she was fit and well and that she was fine to travel. There was dispute over what occurred at the end of this meeting. The company stated that the Complainant resigned but she did return to work for the rest of the day following it and returned to work the next day.
The next day the employee noticed another young woman on the vessel. The woman told her that she was the new galley assistant. When the employee went to the company office to enquire about maternity leave she was told that she could not have maternity leave and that she should see about getting the Unemployment Benefit. She was also told that she should put on the form that she had resigned and she was told not to tell any prospective employers that she was pregnant when she went to job interviews.
The Employment Relations Authority decided that the employee had not resigned but had been dismissed. Not surprisingly it was held that there was no justification for her dismissal and instead the employer should have investigated options under the Paid Parental Leave and Employment Protection Act. The complainant she was entitled to $11,558.17 for lost wages and $7,000.00 compensation for humiliation and loss of dignity.
This article originally appeared in the Southland Times Work To Rule column. Mary-Jane Thomas is head of Preston Russell's employment law team. Contact her by clicking here
