Case highlights risks of mishandling employees returning from parental leave
The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed a general protections application under section 365 of the Fair Work Act 2009 alleging dismissal during her return from parental leave.
The employer raised a jurisdictional objection, claiming the worker had not been dismissed but had instead resigned voluntarily.
The worker claimed she had been effectively dismissed when trying to arrange her return to work after parental leave.
She argued that after initially discussing a potential part-time administrative role, the employer later informed her no positions were available, leaving her with no job to return to despite her parental leave entitlements.
The employer contended the worker had verbally resigned in September 2024 when she indicated she didn't want to return to her full-time position. They argued they were working in good faith to create a suitable part-time role for her, but before this could be finalised, the worker had misinterpreted communications.
The worker started employment with the employer on 16 May 2022 as a business development and training officer. Her role involved recruiting apprentices and trainees, liaising with host employers, and managing training administration.
After notifying her pregnancy in July 2023, she went on leave from December 2023 due to pregnancy-related health issues. She gave birth in February 2024, received Government Paid Parental Leave until June 2024, and then remained on unpaid parental leave.
In September 2024, the worker met with the business manager to discuss her return. She expressed her desire to return in an administrative position, working three days weekly from home. According to the worker, the business manager responded positively, saying "I think we can do that."
The worker later claimed the business manager told her in November 2024 that she would need to resign from her position to take up the new role. The worker said she did not resign and subsequently sought advice from the Fair Work Ombudsman (FWO).
Throughout December 2024 and January 2025, the worker made several attempts to confirm her return-to-work arrangements, indicating she could return in late January or early February 2025.
On 24 January 2025, the business manager said she was awaiting final approval from the Chief Executive Officer (CEO) for the part-time arrangement. The worker was told she would not return on 27 January but perhaps the following week.
On 6 February 2025, the business manager sent a crucial email stating: "Unfortunately, no positions have been created or are currently available at this time... confirm that your employment with us has ended."
When the worker called to clarify, she claimed the business manager said she had not been dismissed. The CEO then emailed claiming she had "verbally resigned" in September 2024.
The CEO maintained that when the worker told the business manager she did not wish to return to her previous full-time position in September 2024, she had "assumed control over your employment contract with [the employer] which resulted in its cessation at that time."
The business manager testified she never advised the worker to resign but did tell her she needed to confirm she didn't want to return to her original position. She claimed that on 4 February 2025, she told the worker her original role wasn't available anymore.
After the worker informed the CEO she had received legal advice, the employer offered her a part-time administration position on 10 February 2025. The worker declined, stating her employment had already been terminated. By this time, she had secured employment elsewhere, starting at the end of February 2025.
The FWC rejected the employer's claim that the worker had resigned in September 2024, finding "there was no unequivocal resignation forthcoming from the [worker] at this time... the [worker] had not terminated the employment contract or relationship at that time."
The Commission found the CEO's emails claiming the worker's employment ended in September 2024 were "contrived" and "at best, misconceived." While the worker had indicated she didn't want to return to her industry consultant role, she "had not made it known that she would 'not be returning to' her full time industry consultant position."
The FWC confirmed that under section 84 of the Fair Work Act, a worker is entitled to return to either their pre-parental leave position or, if that position no longer exists, a comparable available position. By February 2025, the worker was due to return, but "the employer did not have a position to place her into and had not indicated that one was approved and available."
The FWC determined the worker was dismissed within the meaning of section 386(1) of the Fair Work Act. This established the Commission's jurisdiction to hear the general protections application.
The FWC found the worker's search for alternative employment "understandable": "In circumstances where there was uncertainty about her return to work with the [employer], it is understandable that the [worker] was pursuing other employment opportunities whilst at the same time attempting to secure a return to work with the [employer]."
The Commission concluded: "the critical actions that gave rise to the [worker's] termination of employment... were the actions of the [employer]. By the time the [worker] was due to return to work after having taken a period of parental leave, there was no position for her in the [employer] organisation."
Having determined the worker was dismissed, the FWC dismissed the jurisdictional objection and stated the matter would proceed to conference to explore resolution possibilities, as required by section 368 of the Fair Work Act.
