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NSW Legal Aid accused of refusing to employ pregnant solicitor

A solicitor accused NSW Legal Aid of discrimination for allegedly failing to offer her further employment because she was pregnant.

user iconNaomi Neilson 08 December 2023 Big Law
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Solicitor Jessica Trappel, who held temporary contracts, alleged she was treated less favourably than a man who was pregnant or a person without carer’s responsibilities because Legal Aid failed to offer her further employment, brought her employment to an end, and did not provide her with paid parental leave on two occasions.

Ms Trappel brought the allegations to the NSW Civil and Administrative Tribunal (NCAT) seeking monetary and non-monetary orders for alleged direct and indirect discrimination relating to two fixed-term contracts she was offered around 2020 and 2022.

However, senior member Harry Dixon SC and general member Maryanne Maher found the “real and operative reasons” for Ms Trappel’s requests being declined were not due to her pregnancy or any of her intended carer responsibilities.

 
 

Mr Dixon and Ms Maher found Ms Trappel was not able to establish she was treated less favourably by NSW Legal Aid than a hypothetical comparator and it was “difficult to conceive of why the hypothetical solicitor would have been treated any differently”.

In July 2019, Ms Trappel was offered a temporary position in Penrith’s civil law team to fill a gap left by a permanent member who had taken six months of leave for personal reasons.

The contract was due to expire on 3 January 2020, the day before the permanent member was due to return to work.

In November 2019, Ms Trappel officially disclosed to NSW Legal Aid she was pregnant and approached the director of civil law, Meredith Osborne, to request a further contract after her current one ended so she could receive maternity leave and have a job to return to.

Ms Trappel also requested she receive paid maternity leave from 3 January 2020 for a period of four weeks and be offered an “equivalent level position (or above)” commencing September 2020.

Mr Dixon and Ms Maher noted Ms Trappel had no entitlement, “contractual or otherwise”, to any payment of maternity leave from 3 January or to an offer of employment in September 2020.

Referring to submissions from Ms Osborne that she did not believe it was “feasible” to consider Ms Trappel’s requests from a budgetary and operational perspective, the members noted there were “clearly” budgetary implications for either of Ms Trappel’s options.

In February 2021, Ms Osborne became aware of a two-days-a-week opportunity, and Ms Trappel was offered temporary employment.

Over the next few months, Ms Trappel was offered changes to her contract and ended up filling a position for a permanent member.

In September 2021, Ms Trappel advised Legal Aid she was pregnant and inquired about paid parental leave, which she was not entitled to.

Ms Trappel took personal leave instead and did not return to Legal Aid before her contract terminated in January 2022.

Ms Trappel was offered another contract in October 2022 and had held a contract with Legal Aid until May 2023.

In oral evidence, Ms Trappel claimed women employees would take paid and unpaid maternity leave and were “guaranteed a job to return to”, either as permanent or temporary employees.

However, as this was in reference to permanent employees, NCAT found there was “no proper basis” for comparing Ms Trappel’s circumstances with those of permanent women employees.

Ms Trappel further added she was not asking Legal Aid to “treat her in the same way as it treated permanent employees” but had wanted Legal Aid to pay maternity leave and offer her further employment.

On the evidence, Mr Dixon and Ms Maher found Ms Trappel was offered new employment when she was interested and Legal Aid had never “determined” it would not offer her temporary employment.

“In our view, Legal Aid did not fail to offer further employment which could be performed, and in circumstances when it had no duty to do so,” Mr Dixon and Ms Maher said.