суббота, 23 ноября 2013 г.

The Retrenching employees who are on parental leave - Part 2

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What you need to know about retrenching employees who are on parental leave - Part 2
Friday, 22nd November, 2013
By Jessica Oldfield 

In today's Workplace Bulletin:


  • Redundancy and parental leave: Obligations and liability under the Fair Work Act - Part 2
Dear Reader,

In Wednesday's Workplace Bulletin, Charles Power took us through the case Turnbull v Symantec (Australia) Pty Ltd (2013), which highlighted the risks for an employer who elects to make a parental leave employee redundant rather than return them to work.

Today, he will look at the potential application of s 84 of the Fair Work Act 2009 (Cth), which requires that on ending unpaid parental leave, an employee be entitled to return to:

(a)  the employee's pre-parental leave position; or 
(b)  if that position no longer exists, an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.
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And now over to Charles...
Have a great weekend!


Jessica Oldfield
Jessica Oldfield
Editor
Workplace Bulletin

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Redundancy and parental leave: Obligations and liability under the Fair Work Act - Part 2
By Charles Power

Editor-in-Chief, Employment Law Practical Handbook

Section 84 Fair Work Act 2009 (Cth) requires that on ending unpaid parental leave, an employee is entitled to return to:

(a)  the employee's pre-parental leave position; or 
(b)  if that position no longer exists--an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.
Contravention of this provision exposes the employer to liability for contravention of a civil remedy position, as well as orders for compensation.

In Turnbull v Symantec (Australia) Pty Ltd (2013), it was alleged that, where a pre-parental leave position was made redundant, the employer failed to return the employee occupying that position to an "available position" that she was qualified and suited to fill.

The Court ruled that where, upon cessation of unpaid parental leave, an employee's pre-parental leave position no longer exists, the employer must inform the employee of the existence (if there is one) of an "available position for which the employee is qualified and suited nearest in status and pay to the pre-parental position", and to offer that position to the employee.

This may include a position that is available overseas, or is available in a legal entity separate from the employer, if it is within the power of the employer to make that position available.

The employer must then determine whether there are available positions comparable in status and pay with the pre-parental leave position and, if there are two or more such positions, the employer must make available to the employee the available position that is nearest in pay and status to the pre-parental leave position. If there is no available position comparable in pay or status with the pre-parental leave position, the employer will have no obligation under s 84 to make any position available to the employee.

The Court ruled that the position claimed to be available was available.  The Court then determined whether it was one for which the employee was qualified and suited, and nearest in status and pay to the position she occupied immediately before she went on parental leave.  In doing so, the Court asked whether a person, having the qualifications and experience of the employee in question, would seriously consider taking that position.

For answering that question, it would be relevant to receive direct evidence from the employee in question about whether the employee would have accepted the position if it were offered to the employee. Such evidence, however, would not be conclusive. Objective evidence such as the comparative tasks, pay, and status of the pre-parental leave position and the available position would also be relevant and stand as a measure against which to assess any direct evidence the employee may give.

In this case, the employee did not give any evidence about whether she would have accepted the position had it been offered to her and offered no explanation why she gave no such evidence. So, the Court ruled that the position was not one that was nearest in status and pay to the position the employee occupied immediately before she went on parental leave.  This was supported by the fact that the position attracted less pay and less responsibility than the pre-parental leave role.

LESSONS FROM THIS DECISION
If you are seeking to declare a position redundant and the occupant is on parental leave, we suggest you take the followings steps:
  • Identify what, if any, positions are vacant for which the employee may be qualified and suited.  These may exist in related businesses, including at locations interstate or overseas, provided it is within your power to offer employment in them.
  • Give the employee details of these roles and meet with them to understand their views about being employed in those roles.  Explain that this is so that you can make a final decision as to whether the employee is qualified and/or suited for the roles.
  • If the employee is not interested in the roles, then you have met your obligation under s 84 and you can proceed to retrench the employee.
  • Even if the employee expresses interest in the roles, it is open to you (after you have undertaken steps one and two) to indicate that you do not believe that the employee is qualified and/or suited for the vacant positions, resulting in retrenchment.
  • Keep accurate records of these discussions.

Regards,

Charles Power

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

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