Redundant During Maternity Leave - Litigation, Employment, Industrial, Commercial, Intellectual Property and Technology Lawyers
15361
page-template-default,page,page-id-15361,bridge-core-1.0.7,ajax_fade,page_not_loaded,,qode-theme-ver-18.2.1,qode-theme-bridge,disabled_footer_bottom,qode_header_in_grid,wpb-js-composer js-comp-ver-6.0.5,vc_responsive

Redundant During Maternity Leave

Employee Awarded Over $250,000, After Being Made Redundant During Maternity Leave

 

The Federal Circuit Court has awarded an employee a total of $215,759.89 in compensation and $52,000 in penalties after finding that her employer took adverse action against her because she exercised workplace rights to take maternity leave and to request flexible working arrangements.

 

In a Judgment on compensation and penalties in Heraud v Roy Morgan Research Ltd (No 2) [2016] FCCA 1797, Judge Jones summarised the facts in the following terms:

 

[120] The contravening conduct was engaged in by the Respondent in a set of circumstances. These were that the Applicant was nearing the end of her maternity leave, she sought flexible work arrangements, her employment was terminated prior to the date her pre-paternity leave position became redundant and the employer withdrew from the redeployment process and decided not to make any alternative employment positions available in its newly created Research Centre. 

 

In the initial Judgment on liability: Heraud v Roy Morgan Research Ltd [2016] FCCA 185, Judge Jones determined the following contraventions of the general protections provisions had been established by the employee:

 

(1) In deciding not to return the Applicant to her pre-parental leave position after her personal carer’s leave ended, the Respondent contravened s.340 of the Fair Work Act 2009 (Cth) (the Act) by injuring the Applicant in her employment, for the reason that, or for reasons which included as a substantial and operative reason that, the Applicant had exercised her workplace right to take maternity leave.

(2) In deciding not to make any positions in the Research Centre available to the Applicant, the Respondent contravened s.340 of the Act, by altering her position to her prejudice, for the reason that, or for reasons which included as a substantial and operative reason that, the Applicant had exercised her workplace right to request flexible working arrangements. 

(3) In deciding to terminate the Applicant’s employment, the Respondent contravened s.340 of the Act when it, dismissed the Applicant, for the reason that, or for reasons which included as a substantial and operative reason that, the Applicant had exercised her workplace right to request flexible working arrangements.

 

 In the Judgment on compensation and penalties, Judge Jones awarded the employee $30,000 as compensation for non-economic loss on the following basis: 

 

[73] I am satisfied that prevailing community standards demand recognition of the fundamental entitlement of an employee to take paternal leave to care for their child or children, safe in the knowledge that their employment and future will not be prejudiced because they have exercised their right to take paternity leave, including to request flexible working arrangements. I am satisfied that community standards now recognise the distress and suffering an employee will experience when those statutory rights are contravened by an employer.

 

Judge Jones then adopted the following passage from Justice Bromberg of the Federal Court regarding the importance of ensuring compliance with the minimum statutory parental leave provisions:

 

Ensuring compliance with minimum standards

[111]  In Fair Work Ombudsman v A Dalley Holdings Pty Ltd [2013] FCA 509 (“A Dalley Holdings Pty Ltd”), Justice Bromberger stated at [19]:

“…In imposing a penalty, it is imperative for the Court to impose a penalty that reinforces the fundamental importance of compliance with the safety net of entitlements specified by the National Employment Standards and the general protection provisions of the FW Act. Further, it is important that employers comply with minimum standards in respect of consulting employees on parental leave about matters that will have a significant effect on the status, pay or location of an employee’s pre-parental leave position, or the return to work guarantee, so that employees absent from the workplace on a period of unpaid parental leave are not deprived of the benefits of those entitlements…”

[112]  I respectfully concur with this view.

 

Summary

These Judgments highlight the danger in not strictly following all the legal requirements in relation to maternity leave and requests for flexible working arrangements even if a legitimate restructuring process is occurring which affects the employee’s position.

The Judgments also highlight that Courts are fully aware of the importance of strongly enforcing the general protections provisions in the Fair Work Act 2009 to ensure female employees do not suffer any detriment from utilising their legal rights associated with the birth of a child.

Crawford de Carne Lawyers specialise in general protections matters and can help with your problems or questions.

 

GENERAL AND CONTACT INFORMATION

The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 or at [email protected]