Employer guilty of breaching return from maternity leave protections

by Stephanie Zillman24 Apr 2013

The operators of a Victorian aged care facility have been fined a total of $30,888 for discriminating against an employee when she attempted to return from maternity leave.

The company, A Dalley Holdings Pty Ltd, operates aged care facilities, was ordered to pay the fine as well and compensation to the affected employee, by the Federal Court in Melbourne following a prosecution by the Fair Work Ombudsman (FWO).

In this case the affected employee was found to have been discriminated against in 2010 when she attempted to return from maternity leave to her previous position, which was a permanent, part-time role. Prior to going on maternity leave the employee - aged in her 30s - had worked six afternoon shifts and one sleepover shift per fortnight.

While the employee was on maternity leave, a new roster was introduced reallocating the employee’s afternoon shifts to other workers, without the employee being consulted. When the employee attempted to return to work, she was initially told that no hours could be offered to her – and was subsequently offered two sleepover shifts per fortnight and no afternoon shifts.

When the employee stated that she could not do sleepover shifts because of family-and-carer responsibilities for her 11-month old baby, her employer stated that if she did not accept the sleepover shifts this would be taken as her resignation. This was found by FWO to have amounted to a constructive dismissal under workplace laws.

The conduct breached provisions of the Fair Work Act that make it unlawful to discriminate against employees on the grounds of pregnancy and family-and-carer responsibilities. The conduct also contravened the requirement under workplace laws for employers to:

  • consult with employees who are on parental leave about decisions that may affect their position; and,
  • allow employees to resume their previous position – or another mutually agreed position – on return from parental leave.

Other provisions of workplace laws were also breached, including laws that make it unlawful to take adverse action against an employee because they have accessed a workplace right, such as an entitlement to maternity leave.

Michael Campbell of FWO commented that the case acts as a timely reminder to employers that instances of discriminating against employees on the grounds of pregnancy and family-and-carer responsibilities is a breach of workplace laws, and a matter taken very seriously by the courts.

“Employers need to be aware that employees have a lawful right to resume their previous position – or another mutually agreed position – on return from parental leave,” Campbell said.


  • by Karen Thomas 24/04/2013 3:59:14 PM

    This is interesting. In 1981 I commenced maternity leave while working for a large company. I knew up front that I may not necessarily return to my previous role but another one would be assigned to me. I had up to 1 year to inform them of my return to work. When I rang them in 1982 to say I wanted to return soon they said I had to write in. So I did and didn't hear anything. I tried calling again but got nowhere. After a few more weeks of not getting a reply I went in and was told that they had no position for me and that I had to write a resignation!! Was that unlawful even back then???

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