Schultz v Scanlan and Theodore Pty Ltd

In *Schultz v Scanlan and Theodore Pty Ltd*, the applicant, Ms Schultz, alleged that her employment was terminated by the respondent, Scanlan and Theodore Pty Ltd, due to her pregnancy and her intention to take maternity leave, constituting unlawful adverse action. The respondent contended that Ms Schultz's position as Merchandise Manager was made redundant due to the company's poor financial performance and that her pregnancy played no part in the decision. The matter came before Judge O’Sullivan.

The court was required to determine whether the termination of Ms Schultz's employment was a consequence of her pregnancy or her intention to exercise a workplace right, or if it was a genuine redundancy. Specifically, the court had to assess the reasons provided by the respondent for the redundancy and consider whether the applicant's pregnancy was a factor, either directly or indirectly, in the decision-making process.

The court found that the respondent had discharged its evidentiary burden under sections 360 and 361 of the *Fair Work Act 2009*. The evidence indicated that the decision to make the Merchandise Manager role redundant was primarily driven by the company's significant financial downturn in 2012, with sales falling substantially below budget. This financial pressure led to discussions about cost-saving measures, including redundancies. The court noted that the duties of the Merchandise Manager were largely absorbed by other employees, consistent with the definition of a genuine redundancy. Crucially, the court found no evidence that Ms Schultz's pregnancy was discussed or considered by the decision-makers at the time the redundancy was decided, and indeed, one of the key decision-makers was unaware of her pregnancy. Furthermore, the respondent demonstrated a history of supporting employees taking maternity leave, and the applicant herself had previously held the Merchandise Manager role on a maternity leave contract without issue.

The court concluded that the termination of Ms Schultz's employment was solely by reason of redundancy and not due to any unlawful adverse action. Accordingly, the court found that the employer had not contravened the adverse action provisions of the *Fair Work Act 2009*.