Redundancy during parental leave – employers catch a break
In a series of related cases the Federal Circuit Court held that employees who were made redundant during parental leave were not discriminated against. In these cases, the employees were working for Service Youth Council Inc. (“SYC”) P as a marketing manager and Y as a facilities manager. Both P and Y claimed that once they told their manager that they were pregnant that they had individually became a target for dismissal (Y later abandoned that allegation). The claim was that the actions of the employer breached the Sex Discrimination Act1984 which outlines that dismissal or any other detriment on the grounds inter alia of an employee’s sex, pregnancy/potential pregnancy and family responsibilities is unlawful.
After taking into account all information the Court concluded that the P & Y were not targeted because of their pregnancy status. The Court accepted that because of P’s maternity leave it enabled SYC to trial alternative arrangements and as a result found that P’s job was no longer necessary and in fact redundant.
To come to its decision, the Court compared a hypothetical employee who had taken leave and concluded that the result may have been the same and would not be treated any differently. There was a contravention under s65 Fair Work Act 2009 because SYC failed to respond to P & Y’s requests for a more flexible working arrangement within the 21 days’ time frame. The court then imposed a penalty of $2,500 to be paid to P and $4,000 to be paid to Y.
What to Learn
It is important to consider all the consequences when making an employee redundant while on parental leave. It is also important to make sure that any requests are responded to within 21 days of the request being made. While the Commission appears to be more flexible in its decisions relating to redundancy, the time frames however, are not up to interpretation. If you get a request for a more flexible working arrangement, start the clock and make sure you are responding to those requests on time.
The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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