Facing redundancy while on maternity or parental leave? If you’re an employee in Australia, it’s crucial to understand your employment rights and legal protections.
This article provides a comprehensive guide for employees, outlining your protections, what to expect if redundancy arises, and practical steps you can take. If you need further support, our employment law team can help you protect your rights.
Key Takeaways
Redundancy must be genuine (even on parental leave). It must not be due to pregnancy or parental leave.
The Fair Work Act offers strong protections against discrimination and unfair dismissal.
Employers must consult with you and explore redeployment options.
You may be entitled to redundancy pay, notice periods, and legal remedies.
Seeking legal advice early can significantly improve your outcome.
Legal Protections During Maternity Leave
Your Legal Rights During Maternity Leave (Fair Work Act Protections)
Australian employees are protected under the Fair Work Act 2009 (Cth) from discrimination due to pregnancy, parental leave, or family responsibilities. Specifically:
Section 340 safeguards your workplace rights, including taking parental leave.
Section 351 prohibits discrimination based on pregnancy or family responsibilities.
Redundancy cannot legally be used as a disguise for discrimination.
What is a Genuine Redundancy?
For a redundancy to be lawful, your employer must prove that:
Your role is no longer required due to operational changes.
They have complied with consultation obligations under any applicable modern award or enterprise agreement.
There is no suitable alternative position available within the company or associated businesses.
If these conditions aren’t met, you may have grounds to lodge an unfair dismissal claim.
To learn more about your rights when returning to work after parental leave, including how redundancy laws apply, read our guide to the return to work guarantee and redundancy during parental leave.
Employer Obligations During Parental Leave Redundancy
Mandatory Consultation Requirements
Employers must consult with all affected employees, including those on maternity leave. This includes:
Notifying you about the proposed changes.
Offering you the chance to respond or propose alternatives.
Exploring redeployment or suitable alternative roles to avoid termination.
Redeployment Requirements
If a similar role exists, your employer must consider you for redeployment (even if you’re currently on parental leave). The new role must be:
Comparable in duties, pay, and status.
Suitable based on your skills, qualifications, and experience.
Redundancy Pay During Maternity Leave
If your redundancy while on parental leave is legitimate, you’re still entitled to benefits under the National Employment Standards (NES), unless an exemption applies (e.g., small business with fewer than 15 employees).
Learn more about redundancy pay requirements in our article: When Does a Company Have to Pay Redundancy?
Adverse Action and Discrimination Risks
In addition to unfair dismissal laws, the Fair Work Act 2009 (Cth) also protects employees from adverse action.
Adverse action while on parental leave occurs when an employer takes negative steps against you because you’ve exercised a workplace right, such as taking maternity or parental leave.
Common signs that a redundancy could amount to adverse action include:
A temporary replacement is offered your role permanently
No consultation is offered despite legal obligations
Similar positions are advertised externally while you’re on leave
You’re overlooked for redeployment without explanation
Case Examples: Challenging a Redundancy During Maternity Leave
Prosper Law Matter Example
A client was made redundant during her maternity leave. The employer claimed a business restructure eliminated her role. However, the employees temporary replacement was given our client’s role instead, plus no meaningful consultation occurred, and similar jobs were posted externally.
Result: After initiating a claim through the Fair Work Commission, the matter settled with a financial payout and positive reference (through a statement of service), demonstrating how legal advice can help protect your rights.
Thomson v Orica Australia Pty Ltd
An employee, Thomson, was made redundant while on maternity leave, and her duties were reassigned to another staff member. The Federal Court found that the redundancy was not genuine, as the role continued to exist. It was deemed unlawful dismissal based on pregnancy and parental leave.
Outcome: The employer was ordered to reinstate the employee and pay damages, setting a clear precedent that redundancy must be legitimate and procedurally fair.
Employee Checklist: What to Do if You’re Made Redundant on Parental Leave
Request written reasons for redundancy.
Ask about redeployment or comparable roles.
Check redundancy pay entitlements under the NES.
Keep records of all communications.
Seek legal advice if the redundancy seems linked to maternity leave.
Lodge a claim with the Fair Work Commission if needed.
Frequently Asked Questions
Can my employer make me redundant while I am on maternity leave?
Yes, but only if the redundancy is genuine and not because you are on maternity leave. Your employer must follow strict legal processes, including consultation and considering redeployment.
What should I do if I suspect my redundancy is not genuine?
Keep detailed records of all communications with your employer. Seek advice from an employment lawyer as soon as possible to assess your options.
If you believe your redundancy may not be genuine, seek professional legal advice as early as possible. The law is on your side, and with the right support, you can protect your rights and secure a fair outcome.
Am I entitled to redundancy pay if made redundant during maternity leave?
Yes, unless you fall under an exemption in the Fair Work Act. The amount depends on your length of service, as outlined in the National Employment Standards.
What if my employer does not offer me another job?
Your employer must consider redeployment to a suitable role within the business or associated entities. If this does not occur, the redundancy may not be genuine.
Can I make a claim if I think I have been discriminated against?
If you believe the redundancy is due to your pregnancy or parental leave, you may have grounds for an unfair dismissal or general protections claim under the Fair Work Act.
Reach out to Prosper Law today for a free consultation with one of our team members to discuss how we can assist you!
