There are a number of things to keep in mind when restructures occur and people on maternity leave are affected
HRD talks to Alice DeBoos, Partner, K&L Gates, about the three basic steps that are needed for most redundancies.
Can you make a position redundant if it is filled by a person on maternity leave?
The assessment of redundancy should always be on the basis of the "position" and not the person. So theoretically there should be no problem with making an employee on maternity leave redundant, right?
It should be straight forward, but it often is not. Redundancy is where a role is no longer required to be performed by anyone. What often happens when a person takes maternity leave is that the tasks that person performs are split up amongst others for the period and occasionally, businesses then decide that the role is no longer required.
Provided that the assessment of the role for redundancy remains an objective exercise it is not unlawful to proceed with a redundancy of a role where the current incumbent is on maternity leave. Be sure to have well-articulated, objective business reasons to substantiate the abolition of the role and to ensure the decision maker did not at any time consider the fact that the employee was currently on maternity leave when deciding to abolish that particular role.
What steps are required when restructures occur and people on maternity leave are affected?
There are three basic steps that need to be completed for most redundancies. They are:
1. the role must no longer be required to be performed by anyone;
2. if the employee is covered by an enterprise agreement or award those consultation obligations have been complied with, and
3. any reasonable redeployment opportunities have been explored.
It is no different if someone is on maternity leave. Care needs to be taken to ensure that if required, consultation has occurred with the employee and crucially all reasonable redeployment opportunities have been discussed and explored with them.
In addition, the Fair Work Act places additional obligations upon employers with respect to employees on maternity leave who may be the subject of restructuring. Even if an employee is not covered by an award or enterprise agreement, s83 of the Act obliges an employer to consult with employees on maternity leave if they make a decision that will have a significant effect on the status, pay or location of the of the pre-parental leave position. The employer needs to provide all relevant information on the change and provide an opportunity for discussion.
What happens if the role an employee held prior to taking maternity leave has changed as a consequence of restructure by the time she returns?
Again, this will generally not create legal issues provided the reasons are objective and based on sound operational evidence. Employers need to ensure that they have complied with the obligation to consult with the employee who is on leave and this is most often the area which is neglected. Active involvement of the employee in the discussion about their role will ultimately reduce legal risk and assist with the business outcome.
Importantly, the big risk here is adverse action and discrimination claims. Human resources professionals need to interrogate the decision maker as to the exact reasons for making a decision which has a detrimental effect on the employee on maternity leave.
Look at whether other people were affected by the decision who were not on maternity leave and whether any consideration at all of the employee's right to take leave and potentially a decision to return to work on a part time basis formed any part of the decision making process. Where decision making processes are sound and do not include these matters they should be fully supported by documentary evidence.
