The Fair Work Act provides a return-to-work guarantee when an employee takes parental leave. This ensures that employees have the right to return to their original position at the end of their leave. But what happens when an employer needs to make an employee on parental leave redundant?
There are circumstances where an employer may need to make changes to their business, such as restructuring or making positions redundant. It’s important to understand how redundancy impacts the return-to-work guarantee, particularly for employees on parental leave.
This article explores the relationship between parental leave rights and redundancy. Our workplace rights lawyer will explain what employees and employers should be aware of.
The Fair Work Act 2009 provides clear protections for employees on parental leave. Employers must be aware that even during a redundancy process, employees who are on parental leave have legal rights. These legal rights must be respected to avoid potential legal consequences.
Employers must ensure the redundancy is genuine, follow consultation requirements, and offer any suitable alternative positions to the employee. Failing to comply with these obligations may result in general protections or unfair dismissal claims.
Under the return-to-work guarantee, an employee who takes unpaid parental leave has the right to return to:
The guarantee applies to all eligible employees under the Fair Work Act. Eligible employees are those that have:
At the end of a period of unpaid parental leave or flexible unpaid parental leave, an employee is entitled to return to their “pre-parental leave position”. A pre-parental leave position is the position the employee was in immediately prior to starting leave or if their role was reduced or transferred because of pregnancy, the role prior to that.
Alternatively, if that position no longer exists, the employee is entitled to return to an available position:
Employers must provide information to an employee about available positions if the pre-parental leave position no longer exists.
Redundancy occurs when an employer decides that a job is no longer necessary, typically due to business restructuring, downsizing, or changes in operational requirements. However, making an employee on parental leave redundant is subject to specific legal obligations.
The redundancy must be genuine. Redundancy cannot be a disguised attempt to avoid the employee’s return from parental leave. Importantly:
When making an employee on parental leave redundant, employers must:
The employer must be able to show that the redundancy is legitimate, meaning the position is no longer required.
Even though the employee is on parental leave, the employer must consult them about any changes that could affect their employment, including redundancy.
Failure to inform and consult with an employee about a decision that may affect their pre-parental leave position can give rise to civil penalties for breaches of the NES as well as liability under the unfair dismissal and general protections provisions of the FW Act.
Employers considering making redundancies should consult with affected employees who are on parental leave. This is required under s 83 of the FW Act and applicable industrial instruments.
If the employee’s role is redundant, the employer must consider if there are any other roles in the company that the employee could fill, even if the employee is on leave.
You can read more here about suitable alternative roles and redundancies.
An employer was found to have taken unlawful adverse action against a pregnant employee. The employer brought her notice of redundancy forward to a few days before she was due to commence parental leave.
Although the employee’s termination was a genuine redundancy, the timing of her redundancy (before others in the company) was motivated by a prohibited reason. In particular, the employee’s pregnancy and entitlement to parental leave.
The Court found that because of the employer’s actions, the employee could not rely upon the protection of the “return to work guarantee” in the FW Act. The employee was also denied access to the employer’s lucrative paid parental leave policy.
Turnbull brought an unfair dismissal and general protections claim.
Turnbull argued her termination was unjust, claiming that Symantec dismissed her in retaliation for exercising her workplace rights. For instance, because she made complaints about her work environment and asserted her employment entitlements.
Symantec defended the dismissal by stating it was due to ongoing performance issues. The company argued that the decision to terminate was based on documented performance problems. They said it was not because Turnbull exercised any workplace rights.
The Fair Work Commission found in favour of Symantec. The FWC ruled that the dismissal was not unfair and that it was based on legitimate performance concerns, rather than any retaliation for Turnbull’s exercise of workplace rights. There was no sufficient evidence to support Turnbull’s claim of retaliation.
The case underscores the need for employers to have clear, documented reasons for dismissals and demonstrates that while workplace rights are protected, claims must be supported by evidence that the dismissal was linked to those rights.
Yes, but only if the redundancy is genuine and not connected to the fact that the employee is on parental leave. The employer must ensure that the redundancy is due to operational needs and must follow proper procedures, including consultation and offering any suitable alternative positions.
If the employee’s original position no longer exists, the employer must offer a comparable position. If there is no comparable position available, the redundancy may proceed, but the employer must demonstrate that they have explored all other options.
It could be considered unfair dismissal if the redundancy is not genuine or if proper procedures are not followed. Employees can file a claim with the Fair Work Commission if they believe they were unfairly dismissed while on parental leave.
Employers should ensure that the redundancy is genuine, consult with the employee even though they are on leave, provide any available redeployment options, and follow the legal requirements outlined in the Fair Work Act. Documentation and transparency are key to avoiding legal disputes.
Employees cannot generally refuse redundancy if it is genuine. However, they may challenge the redundancy if they believe it was not based on a genuine need or was related to their parental leave.
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