Making employees redundant while on parental leave | Employment Law Practical Handbook

The Case

Heraud v Roy Morgan Research Ltd (2016)

Ms Heraud was the National Operations Manager for Roy Morgan (RM). In September 2013, she took 39 weeks’ maternity leave and was due to return to work in July 2014. During this time, RM suffered a significant decrease in revenue and decided to make Ms Heraud’s role redundant.

On 5 May 2014, RM advised Ms Heraud that there was a redeployment option for her within the newly created research centre. On 7 May 2014, Ms Heraud requested flexible work arrangements. RM thereafter decided to terminate Ms Heraud’s employment, retain her maternity leave replacement and not offer her the redeployment option.

Ms Heraud commenced adverse action proceedings against RM, alleging it had:

failed to consult with her;
failed to return her to her pre-parental leave role; and
terminated her employment because she had exercised her workplace rights, i.e. family responsibilities, taking parental leave and requesting flexible work arrangements.

The Verdict

RM could not discharge the reverse onus of proof, i.e. it was unable to show the reason for its actions was not because Ms Heraud had exercised her workplace rights.

The Federal Circuit Court held that RM engaged in adverse action in deciding:

not to return Ms Heraud to her pre-parental leave position;
not to make any positions available to Ms Heraud after giving her the expectation she would be redeployed; and
to terminate Ms Heraud’s employment because she had requested flexible work arrangements.

The Court will decide what compensation to award Ms Heraud and what penalty will be imposed on RM.

The Lesson

It is important to show that decisions made about someone’s employment have been determined because of business factors and not because the employee has exercised a workplace right. To assist in this process, always ensure there is an appropriate paper trail showing the process followed and lawful reasons for the actions taken.

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.