Employees returning from unpaid parental leave – How to mitigate discrimination and general protection claims

An employee’s entitlements to return to work after unpaid parental leave (UPPL) are often not given much thought until an employee is due to return. Being aware of your obligations as an employer is instrumental to making sure you are able mitigate potential discrimination and general protections claims.

Section 84 of the Fair Work Act 2009 (Cth) (FW Act) states that upon ending UPPL, an employee is entitled to return to their pre-parental leave position. It also states that, if an employee’s position no longer exists, they must be offered an available job they are qualified and suited for, which is of similar status and pay to the pre‑parental leave position. It is important to note that any reduction in hours or transfer to a ‘safe job’, to accommodate the employee’s pregnancy whilst working, does not constitute the employees pre-parental leave position. Putting it simply, an employee returning to work after a period of UPPL, is entitled to, and has a right to, the position they had before commencing UPPL.

So what happens if my employee wants to return to work on a different basis?

An employee’s return to work can become complicated when an employee requests to return on a modified basis, otherwise known as a flexible working arrangement (FWA). FWA’s can only be requested on specific grounds. An employee who has the caring responsibilities of a child (school age or younger), can for this reason request an FWA, as long as the employee has completed 12 months continuous service with the employer. The request must be in writing, clearly outline the changes sought and the reason for the changes. The FWA requested will differ from employee to employee, as it will depend on individual circumstances, however, a FWA could include changes such as:

  • changes to start and finish times;
  • patterns of work, such as working split shifts and job sharing;
  • or could include working from a different location, such as working from home.

Do I have to accept these new changes?

If your employee wants to change their working arrangements, they have a right to request changes, but they do not have a unilateral right to be granted any changes. Employers can refuse FWA requests if they have reasonable business grounds, as outlined in section 65(5A) of the FW Act. When determining if the FWA can be accommodated, employers need to consider:

  • the cost associated with accommodating the FWA request;
  • whether changing other employees’ arrangements or employment of a new employee would be practical in the circumstances; and
  • what effect the requested arrangements would be on productivity, efficiency and customer service.

Your employee can be directed to return to their pre-parental leave position if you refuse the FWA request on reasonable business grounds. A refusal must outline the reasons why the FWA cannot be accommodated, including the reasonable business grounds for which the employer made their decision. The refusal must be in writing and must be given to the employee no later than 21 days after receiving the request from the employee. Employers should also be aware of any additional requirements under a modern award, enterprise agreement, contract of employment, or policy that provides FWA entitlements more beneficial than the FW Act.  If you are unsure what award your employees are covered by, you can contact CCIWA’s Employee Relations Advice Centre on 9365 7660 or advice@cciwa.com.

Case Example – Fair Work Ombudsman v A Dalley Holdings Pty Ltd

A Dalley Holdings Pty Ltd (A Dalley), operated an aged care facility in Geelong where an employee held a part time personal care assistant position. Prior to going on UPPL, the employee worked six afternoon shifts and one sleepover shift per fortnight. While the employee was on UPPL, a new roster was introduced reallocating the employee’s afternoon shifts to other workers, without the employee being consulted. Issues arose when the employee attempted to return to work, initially being told the facility had no hours to give her. After making complaints to the employer, the employee was subsequently offered two sleepover shifts per fortnight. When the employee brought up concerns about her inability to do these shifts, because of her family and carer responsibilities, the employer said that if she refused to accept the shifts, they would take her refusal as resignation. A Dalley found to have breached the FW Act on multiple grounds and was fined $27,720. Andrew Dalley, who manages and part-owns the centre, was personally fined a further $3,168. The company was also ordered to compensation the affected employee $5,000.

This case highlights that it is a serious breach of workplace laws to discriminate against employees on the grounds of pregnancy and family and caring responsibilities. The employer was found to have failed within its obligation to;

  • consult with the employee about changes to her pre-parental leave position;
  • not allow the employee to resume her previous position or another similar position, on return from parental leave; and
  • the employer took adverse action against the employee because they have accessed a workplace right to UPPL.

Practical tips

  • Employees returning from UPPL have a right to return to their pre-parental leave position or if no longer available, a similar position in status and pay.
  • FWA’s can be requested, but employees are not automatically entitled to change/s in their employment.
  • Employers should make sure all FWA requests are in writing, outline the changes sought and the reason for requesting the changes so it’s clear what the employer needs to consider when looking into whether accommodations can be made.
  • If the employees request cannot be accommodated, it’s recommended that you try negotiating with the employee to see if an alternative arrangement can be made before refusing the request to mitigate risks of discrimination or unlawful adverse action.
  • FWA requests can only be refused on reasonable business grounds.
  • Any acceptance or refusal of a FWA request, should be given in writing to the employee within 21 days from the receipt of the initial FWA request.

If you would like to know more  you can contact CCIWA’s Employee Relations Advice Centre on 9365 7660 or advice@cciwa.com.

 

Fair Work Ombudsman v A Dalley Holdings Pty Ltd [2013] FCA 509

 

 

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