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:
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:
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And now over to Charles...
Have a great weekend!
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:
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:
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