The on-going government agenda of removing employment protections for workers continues with the latest being the move to significantly raise barriers for women to obtain pay equity for work that has been historically undervalued. The changes have been described by the opposition and unions as “a war on women”.
The Prime Minister when making the announcement said that the changes could save the government "billions of dollars”, but he has tried to backtrack on this message and is now saying that his government is committed to pay equity, collective bargaining, equal pay and pay parity. His words simply do not stack up!
Discrimination still continues in its many guises in New Zealand. A recent decision of the Human Rights Review Tribunal has upheld a complaint that a worker was discriminated against due to her pregnancy. Zelinda Doria worked full time for Diamond Laser Medispa Taupo Limited (Diamond Laser) as a beauty therapist for 11 months before she found out she was pregnant with her first child. Fifteen days after finding out she was pregnant, and seven weeks into her pregnancy, Ms Doria was told to immediately commence her primary carer leave early (maternity leave). Ms Doria claimed that this was discrimination on the basis of her sex (pregnancy) or on the basis of a “disability”. The claim was against the company, but also personally against the Manager and a director of Diamond Laser.
All of the defendants maintained that they were entitled to put her on early leave under the Parental Leave and Employment Protection Act.
Like many women, Ms Doria initially suffered morning sickness. She told her Manager and friend, Ms Blakeney-Williams, of her pregnancy. In the two weeks after finding out she was pregnant, Ms Doria was sent home early from work by the Manager on two days, she started late on two days and took six days of sick leave. Ms Doria saw her doctor twice during this time but did not suffer from any more morning sickness after these absences. Regardless of this, the Manager emailed Ms Doria to discuss her “parental leave and employment situation”. A meeting was organised, but quickly deteriorated and ended. Ms Doria was required to leave the premises. Diamond Laser’s employment advocate responded shortly after this saying “that given the comments and medical information shared, Zelinda will not be working until further notice”. A follow up letter was sent requiring Ms Doria to start her maternity leave the next day.
Ms Doria, through her mother, requested that the requirement to go on leave be cancelled, and that a work-related risk assessment be conducted by an independent professional in order to find a temporary solution. These requests were rejected. Ms Doria’s midwife also provided a letter to Diamond Laser stating her opinion that Ms Doria was “fit and healthy and completely capable of performing her duties”.
Ms Doria was ineligible for paid parental leave as her employer had directed her to go on maternity leave more than 6 months before her baby’s due date. She attempted to obtain alternative work, but as she was still an employee of Diamond Laser she found this difficult. Ms Doria also struggled to obtain income support from WINZ due to her still being employed by Diamond Laser.
The Human Rights Review Tribunal concluded that Diamond Laser’s actions could not be justified. It said the right to require a pregnant employee to go on maternity leave earlier than they wish is a significant exercise of an employers’ powers. It noted that it can have far-reaching consequences such as removing eligibility for paid parental leave. The Tribunal concluded that exercising this provision in the absence of any consultation with Ms Doria and without any independent medical and health and safety information was not justified.
Ms Doria’s evidence was that she felt “traumatised”. She described feeling “intimidated, stressed and insulted” and explained to the Tribunal that she was “worried that the stress would make me lose my baby”. Also the sudden change in her financial position was “just so stressful”. She described a pregnancy where she was so worried about financial matters and felt that losing her job took everything away. Due to the inability to access paid parental leave, she gave evidence about having to put her baby into care at a very young age and feeling she was not present for her baby when she needed to be.
The decision of the Tribunal is notable. Firstly, when considering the nature and consequences of the discrimination, the impact it had on Ms Doria and the disregard for the legalised protection from discrimination during pregnancy the Tribunal awarded Ms Doria $75,000.00 as compensation for her humiliation and injury to feelings and the loss of dignity she suffered - one of the highest awards of compensation ever in New Zealand. Secondly, the Tribunal held all the defendants liable - the company, the Manager and the director.
Legislation that provides minimum protections for workers are so important. So are protections to uphold values most New Zealanders would agree with; equal rights, equal pay – and meaningful means to uphold these values. Shame on this government for raising barriers for women to obtain pay equity for work that has been historically undervalued, but in some of our most valued occupations - Plunket nurses, community midwives, hospice nurses and health care assistants, primary care nurses, nurses in residential care. Read more...
