вторник, 19 ноября 2013 г.

Retrenching employees who are on parental leave

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What you need to know about retrenching employees who are on parental leave - Part 1
Wednesday, 20th November, 2013
By Jessica Oldfield

In today's Workplace Bulletin:

  • Redundancy and parental leave: Obligations and liability under the Fair Work Act - Part 1
Dear Reader,

As you may be aware, it is unlawful to take adverse action against an employee because of that person's family or carer responsibilities, or pregnancy. This means it is very risky to make an employee who is on parental leave redundant rather than allowing them to return to work.

This week, Charles Power will explain your obligations and liabilities in relation to redundancy and parental leave.
See you next time!
Jessica Oldfield
Jessica Oldfield
Workplace Bulletin
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Redundancy and parental leave: Obligations and liability under the Fair Work Act - Part 1
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

In this bulletin, I will look at the potential application of s 351(1) of the Fair Work Act 2009 (Cth). Under this provision, an employer must not take adverse action against an employee because of the person's family or carer's responsibilities or pregnancy (among other attributes).

A recent Federal Circuit Court decision highlights the risks for an employer who elects to make a parental leave employee redundant rather than return them to work.

CASE LAW: Turnbull v Symantec (Australia) Pty Ltd (2013)

A financial controller was retrenched upon her return from 8 months' parental leave. The employee alleged that her dismissal contravened s 351(1) because it was motivated by the fact that she had taken parental leave and/or because of her family or carer's responsibilities.

A senior manager who was required to make recommendations to cut costs made the dismissal decision. The manager recommended eliminating two of the four finance controllership positions in Australia to achieve the cost target. The claimant occupied one of these positions.

The Court concluded that the decision to retrench the employee was for the reason that the employer no longer required her position not because of her family or carer's responsibilities. This was despite the fact that the Court accepted that the decision to make her position redundant was influenced in part by the fact that the employee's tasks had already been allocated to existing employees.

The Court ruled that the employer had discharged the onus of proving that the actual reason for retrenchment was not the employee's family or carer's responsibilities. The reasons in the mind of the decision-maker when deciding to make the employee's position redundant did not include her being on parental leave; the reasons were that the tasks of the position had already been allocated to existing employees. Given that those tasks had been and were continuing to be performed by those employees, there was no need for the position.

The Court accepted that it was arguable that, had the employee not taken parental leave those tasks would not then have been allocated, and in deciding to cut costs, the decision-maker may not have decided to eliminate the position. However, the Court ruled that “the probabilities were” that even had the employee not taken parental leave, the same decision would have been made.


Some caution has to be exercised in interpreting this decision as allowing employer's to distinguish between the immediate reason why a job is being made redundant, i.e. the work of the position is not being performed, from the reasons why the work is not being performed, namely that the employee filling the position is on parental leave.

It is worth noting that the Court relied heavily on a template document completed by the decision-maker to record the reasoning in his decision to make the role redundant. The template document had been prepared by the human resources department and prompted a decision-maker to detail the method and process followed to identify and select employees for termination.

The template alerted the decision-maker to impermissible factors, and required the decision-maker to consider those employees who have demonstrated the most productivity, the greatest adaptability, and who have the skills most suited to our work environment.


Charles Power

Charles Power
Employment Law Practical Handbook

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