Do employees on parental leave always have the right to return to work, or can they be legally retrenched?
The Fair Work Act states that an employer must not take adverse action against an employee because of the person’s family or carer responsibilities, or pregnancy.
Any employer who retrenches an employee on parental leave without knowing the law is taking a legal and financial risk.
Let’s examine two legal cases.
Where the defending employer lost:
Scullin v Coffey Projects (Australia)(2015)
A male employee who took 12 months’ unpaid leave to care for his newborn children was told upon his return that he could only work on a part-time/casual basis.
He took unpaid leave as opposed to parental leave because the company’s policy stated the employee applying for this leave had to ‘be the child’s primary care giver’.
This was incorrect. Under the Fair Work Act, an employee taking parental leave ‘has or will have a responsibility for the care of the child’.
The defending employer was able to satisfy the Court that they mistook their legal obligations, but because they breached the Fair Work Act, they were ordered to pay over $175,000 in penalties.
Where the defending employer was successful:
Turnbull v Symantec (Australia) Pty Ltd(2013)
A financial controller was retrenched after returning from 8 months’ parental leave.
The claimant alleged that the dismissal contravened the Fair Work Act because it was motivated by her taking this leave.
However, the Court found that the decision was made to retrench the employee because the position was no longer required.
This was despite the fact that her tasks being allocated to other staff members in her absence had some influence on the decision.
The employer was able to convince the court that Ms Turnbull’s position would have been made redundant anyway.
In this case, the Court relied heavily on a document that was completed by the senior manager. It showed that a stringent process had been followed to select employees for termination of employment and detailed the exact reasoning for making that position redundant.
The management took into account all legally impermissible factors and identified the employees who were considered the most productive, adaptable and suited to their work environment.
Because the employer understood the latest employment legislation, rigorously kept records and followed the letter of the law, they were able to implement a legally compliant redundancy.
But action like this should never be taken without having the correct legal knowledge.
In The Parental Leave Guide 2018, prominent employment lawyer and accredited workplace relations specialist Charles Power outlines what every employer must do to meet their legal obligations and minimise risks surrounding employee parental leave.
This eBook explains:
- How to determine what type of parental leave your employees are entitled to
- Your payment obligations to employees who are eligible for paid parental leave
- How other leave entitlements interact with parental leave
- Employees’ notice requirements for parental leave
- How to maintain correct parental leave records
- What to do if the employee’s role changes while they are on parental leave
We answer numerous questions such as:
- When can parental leave start?
- Can an employee extend their parental leave?
- Do leave entitlements accrue during parental leave?
- What happens if the pregnancy ends unexpectedly?
- Can we refuse a request to end parental leave early?
- Can other leave be taken alongside unpaid parental leave?
- And many more…
In the guide you will find essential:
Be certain that you have taken every necessary step to diminish your legal liability.
Receive helpful hints to clarify any grey areas and ensure you’re dealing with matters correctly.
We clearly explain every employment law term that relates to parental leave.
Know what can happen in various situations and how you can respond accordingly.
Find out what we can learn about the outcomes of cases that have made it to court.
The Parental Leave Guide 2018 provides you with everything you need to stay ahead of your parental leave responsibilities and protect your business.