Failure to advise employee of maternity leave rights results in compensation

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Failure to advise employee of maternity leave rights results in compensation

  A shop attendant, regarded as a casual employee by her employer, has won $4,000 in compensation after her employer failed to advise her of her maternity leave entitlements.

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A shop attendant, regarded as a casual employee by her employer, has won $4,000 in compensation after her employer failed to advise her of her maternity leave entitlements. The NSW Industrial Relations Commission heard that the employer denied any knowledge of her intentions to return after her confinement and insisted she left work of her own accord due to having been reprimanded over her performance.

Deputy President Harrison said there was no evidence she was advised about her entitlements after the birth of her second child in 1998 - when her employer asked her to return to work as soon as possible. The deputy president said this led to the conclusion 'that arrangements remained as casual in 2000 as they had been previously'. In fact the employee had an on-going employment relationship with the employer (as a regular casual) and was consequently entitled to maternity leave.

Background

The employee first began working as a casual shop assistant for the company in 1998. Her evidence was that in July 1998 the company's managing director asked her to return to work after the birth of her second baby, to which she agreed. The baby was born in August and about three to four weeks later, she returned to work. In July 2000 the employee was well advanced in the pregnancy of her third child. She gave evidence that she left at the end of her day's shift and then notified the company by phone that she would not be returning to work until after the birth. While she did not mention maternity leave, other employees were aware that the employee desired and intended to return to work following her confinement.

She said that before ceasing work, she had informed the managing director's wife, who handled staff matters, that she would return from maternity leave approximately two weeks after the birth of her child. There were some complications with her confinement and consequently she did not ask for work until November 2000. However, she maintained communication with the company and staff during this period. The managing director denied any knowledge of these events, claiming his wife had dealt with all staff matters and that they had since separated.

The employee said she maintained contact with staff on a personal level and conveyed to the managing director through them her continuing intention to return to work following maternity leave. She attended the staff Christmas party and raised the issue with him. He said business was slow and he would contact her, but she heard no more from him. She made further approaches to staff at the Long Jetty store who, she said, told her they were understaffed. She reiterated her availability and sought that the managing director be informed, without success. The employee concluded she was not given notice of her entitlements to parental leave nor was she notified of her obligation to give her employer notice of her intentions.

The managing director's evidence was that the employee left employment after working a short day and he had no further communication with her after that. He acknowledged that she was at the Christmas party but denied any conversation with her on that occasion. He said he was generally satisfied with her performance until she was given a trial as shop manager at Long Jetty following the opening of a second store at Wyong. He then had concerns about her having her husband and children in the shop and a few instances where she was late opening the store. She was transferred to the Wyong store under the supervision of another employee. The managing director deposed that he did not dismiss the employee, but that she left on her own accord, presumably dissatisfied with his refusal to allow child minding at the shop and reprimands in respect to work performance and punctuality.

Findings

Deputy President Harrison accepted there had been discussion between the employee and her employer concerning maternity leave and that her intention and expectation was to return to work as soon after the birth of her baby as she was physically able. There was no evidence to suggest she was advised of her entitlements. 'The evidence is that no such advice was given on the first occasion of maternity leave, leading to the conclusion that arrangements remained as casual in 2000 as they had been previously,' Deputy President Harrison said.

The deputy president found the employee was entitled to maternity leave and left her employment in the genuine belief that she would return following that maternity leave. He found the company's refusal to effect a return to work harsh, unreasonable and unjust and awarded $4,000 compensation.

See: Tapuvae v Vetob Pty Ltd T/as Browse About, [2002] NSWIRComm 191, (August 16, 2002).

 

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