New mum's request for part-time work leads to unexpected workplace dispute
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed she was dismissed after requesting flexible work arrangements upon returning from parental leave.
The worker had sought to return to work on a part-time basis to manage childcare responsibilities for her young child.
The employer argued that the worker had repudiated her employment contract by refusing to return to full-time work as required, claiming there was no dismissal but rather termination at the worker's initiative.
The worker maintained she was actively communicating with the employer and seeking alternative arrangements, demonstrating a clear intention to return to work.
Employment background and parental leave arrangements
The worker was engaged as a full-time spare parts interpreter on 19 September 2022. Prior to taking parental leave, she usually worked 40 hours per week, Monday to Friday, from 7:30am to 5:00pm. In November 2023, the worker went on parental leave following the birth of her child.
When the worker started her parental leave in November 2023, the parties had different understandings about the duration - the worker understood it was for 12 months, while the employer thought it would be six months. This misalignment was addressed between the parties in May 2024 and the worker's leave was ultimately extended to 12 months.
In September 2024, the worker explored the option of taking a parental leave position at another branch on a part-time basis, but this position did not eventuate. In September or October 2024, the branch manager and the worker met to discuss her return to work.
The branch manager's evidence was that the worker said she did not want to return to work at the company, while the worker denied this, stating she said she did not want to return full-time.
Flexible work request leads to negotiations
On 4 November 2024, the worker sent an email to the branch manager seeking to extend her parental leave period by a further 12 months. The employer denied the request based on increased business activity, lack of viable cover for the worker's position, and ongoing concerns for the overall team's workload.
On or around 25 November 2024, the branch manager and the worker met to discuss her return. The branch manager's evidence was that the worker said she could not return to work full-time and would need to finish work at 3:00pm, and that she could not do Saturday work or overtime going forward.
The worker denied saying she could not do Saturday work or overtime, stating she told the branch manager she would need notice to work Saturdays so she could arrange childcare.
On 27 November 2024, the branch manager sent the worker a letter explaining that the employer could not accommodate her request to go to part-time. However, the employer could accommodate extending her parental leave so that she would return to her role full-time from 3 February 2025 and work Saturdays once or twice a month.
Worker responds with childcare concerns
On 14 January 2025, the worker wrote to the branch manager disagreeing with the summary of the situation in his letter and reiterating her reasons for seeking a return to work on part-time hours, citing childcare responsibilities and the needs of her young family.
On 20 January 2025, the branch manager sent the worker a letter stating the employer's position regarding working on Saturdays and call-outs, and affirming they could not accommodate her returning to work on a part-time basis.
The letter also stated: "Based on the above working conditions, would you please let me know by January 24, 2025 if you are able or unable to return to work."
On 24 January 2025, the worker sent an email explaining that "the working week being 40 hours (55 with my travel time and daycare drop off/collections) is still not something that I can manage at the moment with my young family."
She stated that being away from her baby for that length of time was too much, noting "the first five years of a child's life are the most important."
Return-to-work after parental leave
On 31 January 2025, the branch manager sent a letter to the worker entitled "Termination of Employment." The letter stated it was the employer's understanding that the worker had been unable to and would not be able to return to work in the near or foreseeable future due to family and caring responsibilities.
The letter noted that while the employer had made every effort to explore reasonable adjustments, they were unable to provide a suitable adjustment that would enable her return to work. The letter concluded:
"After careful consideration and consultation, we regret to inform you that we are left with no other options but to end your employment contract effective 04 February 2025."
The worker subsequently filed a general protections application under section 365 of the Fair Work Act 2009, claiming she had been dismissed. The employer filed a jurisdictional objection arguing that the worker had repudiated her employment contract and therefore there was no dismissal but rather termination at the worker's initiative.
Repudiation or dismissal?
The FWC considered whether the worker was dismissed under section 386 of the Fair Work Act 2009, which defines dismissal as either termination at the employer's initiative or resignation forced by employer conduct.
The employer argued that the worker's conduct demonstrated she was not willing to work full-time hours as per her contract and would only perform work on her terms.
The worker primarily argued that she did not engage in repudiatory conduct, noting she had been proactively contacting the employer, proposing alternative arrangements, and demonstrating a clear intention to return to work.
She argued that as all communication took place well in advance of her set return date, there was no actual breach of her employment contract obligations.
The FWC examined recent authorities on repudiation, particularly noting that even where an employee's conduct might constitute repudiation that the employer elects to accept, this can still constitute dismissal under the Fair Work Act 2009.
The Commission found these authorities established that employers cannot simply avoid dismissal obligations by characterising termination as acceptance of employee repudiation.
FWC: No abandonment of employment
The FWC found that there was no argument that the worker had abandoned her employment. The Commission observed that the worker was communicating with the employer in person and in writing on a regular basis leading up to the end of the employment relationship, distinguishing this case from situations involving actual abandonment of employment.
The FWC stated: "Even if I accept [the employer's] evidence of the events leading up to the Friday 31 January 2025 and [the employer's] argument that [the worker's] conduct constituted repudiation of the employment contract that [the employer] elected to accept, based on the facts in this matter I find that [the branch manager's] letter to [the worker] on Friday 31 January 2025 ended the employment relationship on [the employer's] initiative."
The Commission found that the authorities relied upon by the employer were dealing with factual scenarios of actual abandonment where employees ceased attending work without explanation.
The FWC concluded: "Therefore [the termination] constituted a dismissal under s 386 of the Act." The Commission found that the worker was dismissed by the employer and her application was within jurisdiction, with the matter subsequently listed for a conference to deal with the substantive general protections claim.
