Research giant Roy Morgan centre of adverse action claim

by Victoria Bruce19 Feb 2016
A director on maternity leave who had her request for flexible working hours denied and her redundancy brought forward has won an adverse action claim against Research giant Roy Morgan.
 
Roy Morgan Research Ltd has been found guilty of adverse action against the director who sought to return to work after maternity leave by refusing her request for flexible working hours and bringing forward her redundancy, the Federal Circuit Court has found.
 
Amber Sharp, Partner at Marque Lawyers says this decision should serve as reminder to employers not to overlook their obligations in favour of expediency.
 
“Under the “return to work guarantee” an employee returning from maternity leave has an entitlement to be returned to their pre-maternity leave position, or 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-maternity leave position,” Sharp told HC Online.
 
While in this case the Court accepted that Roy Morgan was undergoing a genuine restructure which meant that the returning mother’s position would cease to exist, Roy Morgan failed to comply with the return to work guarantee.
 
The Court found that when the returning mother requested flexible working arrangements, Roy Morgan took the approach that it would be more expedient to simply bring her redundancy forward.
 
Sharp says this was despite the mother’s maternity leave cover remaining in the role for two months after the date on which the mother was due to return to work, before being redeployed to another position within the business which would have been suitable for the returning mother.
 
“Accordingly, Roy Morgan failed to comply with the return to work guarantee,” Sharp says.
 
Sharp says employers can legally refuse requests for flexible working arrangements on two grounds:
1.  That the employee does not meet the eligibility criteria for a request under the Fair Work Act, including 12 month’s continuous service; or 
2.  On “reasonable business grounds”, including that the proposed arrangement would be too cost or would have a significant impact on customer service. 
 
Requests must be in writing and the employer has 21 days to respond and must outline reasons if the request is refused. And while the employer breaches the Act if it does not respond within 21 days, there is no forum under the Act to challenge the legitimacy of the reasons provided by the employer.
 
“But beware:  even if an employee is not eligible to make a claim, and cannot challenge the legitimacy of the reasons under the Act, the employee may still be able to seek recourse as a claim of discrimination on the ground of family responsibilities,” Sharp says.
 
She says employers must give proper consideration to the viability of the request.  
 
“Discrimination tribunals encourage employers to consider trial periods before rejecting requests, as well as seeking feedback from employees on how to they consider any employer concerns with the arrangement can be managed,” Sharp says.
 
Employers can face penalties of up to $54,000 for a breach of the Fair Work Act, and $10,800 for an individual “involved in” the contravention. 
 
“This means HR Managers can be in the gun for personal liability,” Sharp cautions. 
 
 
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