Why you must take care when retrenching an employee who is on parental leave
Under section 84 of the Fair Work Act 2009 (Cth) (FW Act), an employee on parental leave has the right to return to their pre-parental leave position. If that position no longer exists, they are entitled to an available position for which they are qualified and suited, nearest in status and pay to the pre-parental leave position.
In Heraud v Roy Morgan Research Ltd (2016), an employee on parental leave was due to return from parental leave on 2 July 2014. The Court found that, as a result of the employee’s workplace right to return to her pre-parental leave position, the employer’s decision to make that position redundant as part of an organisational restructure on or after 31 August 2014 was brought forwards to 27 June 2014.
The Court also found that the employer backed down from its initial willingness to consider redeployment options because the employee had exercised her workplace right to request consideration of flexible work arrangements in any role to which she might be redeployed. The Court found the request was also a factor in the decision to bring the date of the redundancy forwards.
The Court declared that the employer had subjected the employee to adverse action, by retrenching her and refusing to redeploy her, because of the exercising of her workplace rights to return to her pre-parental leave position or to request a flexible work arrangement in any role to which she might be redeployed.
The Court made these finding even though it accepted that the employer’s organisational restructure that led to the redundancy was genuine, and that the employer operated a workplace that supported employees in the balance between work and family responsibilities.
The Court also made an important observation about the operation of section 83 of the FW Act. This requires an employer to take all reasonable steps to give an employee information about, and an opportunity to discuss, the effect of any decision made about their pre-parental leave position. The Court ruled this did not oblige the employer to consult with the employee before the decision is made. It simply required the employer to provide information and to discuss the matter with the employee, which could be done after the making decision.
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