Fairly made redundant after applying for maternity leave

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Fairly made redundant after applying for maternity leave

The Federal Circuit Court has established that an employee whose employment was terminated after she applied for maternity leave had in fact been made redundant for genuine reasons arising from restructuring and not from adverse action for a prohibited reason.

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The Federal Circuit Court has established that an employee whose employment was terminated after she applied for maternity leave had in fact been made redundant for genuine reasons arising from restructuring and not from adverse action for a prohibited reason.
 

Position eliminated after restructuring

A financial planning and analysis manager had been employed by a software company since January 2006, when she informed the director of the Asia Pacific region in September 2011 that she would be applying for maternity leave.
 
Arrangements were made to cover her workload during her absence. In January 2012, she applied for and was granted leave from 1 March to 4 November 2012.

On 1 February 2012, the regional director met with the manager and told her that her position had been eliminated. However, she could seek re-deployment within the company. There were no positions suitable for her and, on 8 February 2012, she was informed her employment would be terminated on 2 March 2012. She received outstanding salary, five weeks payment in lieu of notice and 16 weeks severance pay.

Was it adverse action?

The manager applied to the Federal Circuit Court of Australia, contending her employer had taken adverse action against her because she had applied for maternity leave.

The employer’s case was that the position had been eliminated because of restructuring and that the manager’s pregnancy and maternity leave had not influenced their decision to make her position redundant. It was one of 21 redundancies in the Asia Pacific region.

The regional director was cross-examined over two days, but there were no objective facts that contradicted his evidence. There was no suggestion at all of enmity between the manager and the regional director. There was, however, evidence that the regional director had not meticulously followed the company’s own policy for identifying and selecting employees for termination. He admitted it but said he believed the policy did not apply to employees whose roles no longer existed. In cross-examination he conceded the policy should have been applied.

The court concluded that the evidence did not indicate that adverse action had been taken against the manager for a prohibited reason.

Error with pay slip

The court identified an error with the manager’s final pay slip. She had been paid on 8 March but had not received her pay slip until 16 March 2012, contravening s536 of the Fair Work Act 2009.

Because the payment related to her basic salary, she should have received the pay slip no later than 3 March 2012.

The court recommended that the parties seek to deal with the pay-slip issue by consent.
 
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