A lot can happen in a workplace in a year. People join, people leave and whole businesses can be restructured. But when those big changes happen, employees who are absent on parental leave are often an afterthought. Quite a few managers have tripped up by denying these parents their legislated rights when their jobs are affected by restructuring or, worse, deliberately targeted by it. So what’s the proper way to approach employees on parental leave?
Don’t tread on workplace rights
A company can’t fire, demote or make redundant an employee because they exercise a workplace right.
The company had discussions with Heraud and indicated she would be redeployed to a role in a newly created department. Two months before she was due to come back, Heraud emailed her employer and asked to return to work part-time for 20 hours per week.
Receiving this request, Roy Morgan decided to make Heraud’s role formally redundant, although it continued employing her parental leave replacement for a further three months. Heraud brought a claim against the company under the “general protections” provisions of the Fair Work Act. Under the act, a company can’t fire, demote or make redundant an employee because they exercise a workplace right.
Heraud alleged the company had terminated her employment because she’d taken maternity leave and had asked to work part-time on her return. Her legal team argued that this was her workplace right. Roy Morgan countered that the company’s actions had nothing to do with Heraud wanting to work part-time, but were due to “commercially necessitated restructuring”.
But the Federal Circuit Court agreed with Heraud. Judge Suzanne Jones found Roy Morgan had breached the law by deciding not to return Heraud to her old position or redeploy her in another department, and by terminating her employment for reasons that included her request for part-time work.
Redundant on maternity leave
This doesn’t mean someone on parental leave can’t be made redundant. In Stanley v Service to Youth Council Incorporated, the Federal Court ruled for the employer.
Nona Stanley had worked as a facilities manager for the not-for-profit Service to Youth Council (SYC) in South Australia, which assists young people with employment, training and accommodation.After she took maternity leave in September 2011, her duties were redistributed among other staff, including a new administrative assistant paid about $20,000 a year less than Stanley. The SYC managers found that the new arrangement worked very efficiently, and by 4 November had concluded that Stanley’s position was not needed.
