Parental Leave - Return to Work Guarantee; entitlement of employee to position held before parental leave taken

Date: Nov 04, 2011
Document Type: Article

Under s70 of the Fair Work Act a parent is entitled to 12 months of unpaid parental leave.

Section 84 of the Act provides parents with a return to work guarantee so 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.

This obligation is taken very seriously by Fair Work Australia. In a recent case the plaintiff employee was a recruitment agent at the defendant company (employer) who took four month maternity leave. She agreed to defer her return because of a down-turn in business. The plaintiff expected to return to full time employment at the end of her twelve months of maternity leave. During her leave period the defendant company (employer) amalgamated her job with the job of another employee who was more junior than her. Towards the end of her maternity leave period the defendant company (employer) refused to re-employ the plaintiff on a full time basis, and told her that her position on a full time basis had become redundant.

The plaintiff lodged an unfair dismissal application with Fair Work Australia (FWA). Fair Work Australia ruled that the plaintiff should have been redeployed into the new position and the other employee be made redundant because she was more senior and had better qualifications for the role.

A word of caution: parties to legal actions usually have rights to seek review of decisions by a higher Court i.e. appeal rights. At the time of writing this article we are not aware that there has been an application to a higher Court to overturn the decision summarized above, but it is always possible that a decision might be overturned on appeal/review by a higher Court.

Craddock Murray Neumann Lawyers can advise employers on their obligations and employees on their rights. For assistance contact Dominic Wilson, a partner of Craddock Murray Neumann, on (02) 8268 4000.

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