The Case

Scullin v Coffey Projects (Australia) (2015)

When Mr Scullin’s wife gave birth to twins, he requested 12 months’ unpaid parental leave to assist with the care of his children. Coffey Projects rejected Mr Scullin’s request on the basis that he was not the twins’ primary carer, but allowed him to take a mix of other paid and unpaid leave.

When Mr Scullin returned to work 12 months later, Coffey Projects only offered him part-time work. One year later, it dismissed Mr Scullin when it made his position redundant.

Mr Scullin commenced proceedings against Coffey Projects, alleging it:

• took adverse action against him because he had family responsibilities and a workplace right to take parental leave;
• contravened the Fair Work Act 2009 (Cth) (FW Act) by recklessly making false or misleading statements about his workplace rights, i.e. by saying that he could not take parental leave because he was not the primary carer;
• contravened the FW Act National Employment Standards (NES) by not allowing him to take unpaid parental leave; and
• breached his employment contract by not allowing him to take parental leave.

The Verdict

The Court rejected Mr Scullin’s claims that Coffey Projects had:

• taken adverse action; or
• recklessly made false and misleading statements.

However, the Court found that Coffey Projects had breached the NES by not allowing Mr Scullin to take unpaid parental leave. While Coffey Project’s parental leave policy required that for an employee to take parental leave, they must be the child’s “primary carer”, the Court found the NES contains no such requirement.

Further, the NES protected Mr Scullin’s right to return, at the conclusion of the leave, to his full-time position or to an available position for which he was qualified and suited, and that was nearest in status and pay to his pre-parental leave position.

Therefore, the Court held that:

• by denying Mr Scullin the unpaid parental leave he was entitled to under the NES, Coffey Projects had both contravened the NES and repudiated the employment contract;
• by allocating only part-time work to Mr Scullin after he returned from leave, Coffey Projects had caused Mr Scullin to suffer financial loss in that:
• he was denied the right to return to his full-time position when his parental leave concluded; and
• when his position was made redundant, his redundancy package was calculated at his part-time, rather than his full-time, salary.

Coffey Projects was ordered to pay to Mr Scullin a gross amount of $169,347.24, being:

• the difference between his part-time and full-time salary from the date he returned from leave until his employment was terminated;
• an amount to compensate for the additional annual leave he should have received had he worked full-time on his return from leave; and
• an additional amount to compensate for the shortfall in severance pay (that being the difference between what he would have received as a full-time employee less what he was actually paid as a part-time employee).

In later proceedings, Coffey Projects was ordered to pay a penalty of $8,250 to Mr Scullin for breaching the NES.

The Lesson

When you rely on out-of-date or inaccurate policies, you can breach legislation and employment contracts.

Make sure that you review your workplace policies to ensure they are up-to-date and consistent with your employees’ statutory entitlements.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.