Parental leave
- Under the Australian Fair Pay and Conditions Standard, (which is enforceable under the Workplace Relations Act,) an employee is entitled to unpaid parental leave, which includes maternity leave, paternity leave and adoption leave, for a period up to 12 months. The Standard requires appropriate notice and a medical certificate to be provided by the employee.
Right to return to old job
- The employee has a right to return to the position they held before going on leave at the expiration of the leave period. If that position no longer exists, the employee is entitled to return to another position suitable to their qualifications and experience.
Job becomes redundant or no suitable job
- It is not uncommon for the job of an employee on 12 months parental leave to become redundant or for job restructuring to take place during their absence. Employers need to be aware of their legal obligations and rights in this area, particularly if they wish to terminate an employee on paternity leave whose job has become redundant. Employers need to take care as breaches of the law can lead to adverse legal consequences including substantial fines and reinstatement orders.
Termination for redundancy
- Where it is decided to terminate an employee, care needs to be taken in effecting the termination particularly where the employer wants the employee to sign a release from any further claims when the employee is only being offered no more than their existing contractual or statutory entitlements. It is illegal to withhold notice and severance payments to an employee unless they agree to sign a release where the employee is already entitled, by contract or law, to the amount of notice and severance payments being offered. See the Iliff case below.
Wrongful termination
- Under the Workplace Relations Act it is unlawful to terminate an employee on the grounds that they are pregnant or by reason of their marital status or for absence from work during maternity or other parental leave. A breach can result in fines up to $33,000 and an order for reinstatement.
Discrimination
- Termination during maternity leave may also give rise to a claim of discrimination.
S.7 of the Equal Opportunity Act 1995 (“the Act”), “discrimination” means direct or indirect discrimination on the basis of an attribute. By s. 6, “attribute” includes parental status or status as a carer. Direct discrimination occurs if a person treats someone with an attribute less favourably than that person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances. The attribute must be a substantial reason for the treatment. Indirect discrimination occurs if someone imposes a requirement or condition or practice with which someone with an attribute cannot comply, and the imposition of that requirement condition or practice is not reasonable.
Cases
King v Nike Australia
- A claim was brought in the Human Rights Commission by Mrs King for discrimination. Ms King was employed by Nike as a sales manager. She went on maternity leave and while she was on maternity leave the company restructured the sales department and created a senior and a junior role in sales management. On Mrs King’s return from maternity leave, she offered to work part time and from home. The company invited her to apply for the senior sales role but she was unsuccessful. The company then offered her the junior role. Ms King alleged discrimination on the basis that the company had failed to return her to a comparable position she held prior to taking maternity leave. The Commission found that had Ms King not had the care of a child and/or expressed a desire for flexible working arrangements, she would have been appointed to the senior sales role. The Commission found that this conduct was discriminatory and awarded her damages for hurt and distress of nearly $9,000.
Iliff v Sterling Commerce
- Ms Iliff, the company’s sales manager, went on maternity leave. During her absence, the company had filled her position with a contractor. When Ms Iliff tried to return, the company said her job no longer existed and she was to be made redundant.
The Court found that that statement was wrong. Her job did exist (the contractor continued in the position of sales manager) and she should have been reinstated to it. Instead of complying with the provisions of the Act, senior management of Sterling Commerce took a deliberate course of conduct to justify their decision to continue to employ her replacement, rather than Ms Iliff. Sterling Commerce was found to have breached the Workplace Relations Act. The maximum penalty of $33,000 was imposed. Other consequential orders for interest and costs were also made.
The Court also found that the company discriminated against her by requiring her to sign a release when she was on maternity leave when the offer of payment only included an amount which she was otherwise legally entitled to by way of notice and redundancy payments. When she refused to sign the release the company withheld payment of these entitlements.
CONCLUSION
The cases highlight the need for care in dealing with employees on parental leave, particularly where the employment environment changes during the period of leave due to restructuring or redundancy and their right to return to the job they held before going on leave.
If you have any queries in relation to this please contact David Beale email: dbeale@rbhm.com.au
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