A recent case highlights the risks for any employers who elect to make a parental leave employee redundant rather than return them to work.
A financial controller working for Symantec Australia, who was retrenched after returning from eight months of parental leave, has unsuccessfully pursued her former employer in court.
Although the employer was not at fault, the case highlights the potential risks for any employers who elect to make a parental leave employee redundant rather than return them to work.
The woman, Turnbull, argued that her dismissal was in breach of section 84 of the Fair Work Act 2009 (Cth), due to her employer failing to return her to an available position that she was qualified and suited for.
Section 84 stipulates that when unpaid parental leave finishes, if an employee’s position no longer exists but there is still a position available for which they are qualified and suited, the employer must inform the employee the position exists. Breaching this exposes the employer to orders of compensation, as well as contravention of a civil remedy position.
“Whether or not there is an ‘available position’ is something that would be peculiarly within the knowledge of the employer, not the employee,” Charles Power, partner at Holding Redlich, said.
Key HR takeaways
Charles Power compiled a number of steps HR should undertake if preparing to declare a position redundant following parental leave:
- Identify what positions are vacant for which the employee may be qualified or suited, which may involve positions in related businesses, or interstate/overseas locations.
- Meet with the employee and give them details of these roles so they can provide you with their thoughts to gauge qualification/suitability for these roles.
- If the employee is not interested in these roles, that is okay. You have met your obligations and you can now proceed to retrench the employee if you desire. You can also retrench if you feel the employee is not suited, regardless of their interest.
- Keep accurate records of these discussions.
Redeployment is a powerful tool that organisations must attempt to leverage. While the law stipulates employees must only be made aware of positions that are suited to them, HR should also consider alternative ways of thinking about the topic, as discussed by Bridget Beattie with HC earlier this week.
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