Can an employee be made redundant while on parental leave?


Can an employee be made redundant while on parental leave?

A reader asks if it is permissible to make redundant a pregnant employee who is on parental leave.


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Can an employee be made redundant when she is pregnant and on parental leave? 

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Q. Can an employee be made redundant when she is pregnant and on parental leave? 

A. Under the National Employment Standards, an eligible employee is entitled to unpaid parental leave, which includes birth-related leave and adoption-related leave. The leave must be associated with the birth of a child to the employee, the employee’s spouse or the employee’s de facto partner, or the placement of a child under 16 years of age with the employee for adoption.

However, an employee’s absence on parental leave does not offer the employee any greater protection from dismissal than if he or she was at work.

Redundancy and parental leave

The most common reason for dismissal while absent on parental leave is when the employee’s position becomes redundant. Provided the selection criteria applied to determine which position(s) are selected for redundancy are objective, and the redundancy is based on meeting the operational requirements of the enterprise, a dismissal would be regarded as valid in this circumstance.

This was illustrated in a matter heard before the (then) Australian Industrial Relations Commission, where the applicant argued that because her original position had become redundant, she was entitled to the position she held immediately before commencing parental leave, or if that position no longer exists, a position similar in status and responsibility to the original position. The Australian Industrial Relations Commission determined that this provision only applied when the employee returned from parental leave and not during the period of the parental leave. The parental leave provisions do not operate to quarantine an employee from the effects of a genuine redundancy occurring during a period of unpaid parental leave, as long as the termination due to redundancy is otherwise properly and fairly carried out. See Kerrison v Air International Pty Ltd [2006] AIRC 297.

The Federal Court has also made rulings in Poppy v Service to Youth Council incorporated and Stanley v Service to Youth Council Incorporated, both of which are 2014 cases. Both of those cases involved two employees who were made redundant on parental leave. It was held that the employer had acted on fair and reasonable grounds unrelated to the employees’ pregnancies or parental leave. Although employers are expected to act in a fair and reasonable manner when selecting employees for redundancy, however, the decision to implement a redundancy remains a decision for the employer. See “Redundancy unrelated to pregnancy: no discrimination.” 

Other applicable laws

Employers must be alert to employees’ rights in relation to return from parental leave. It is not an opportunity to terminate an employee’s service and promises/commitments made before an employee goes on parental leave can be enforced on the employee’s return. See “Adverse action after return from maternity leave”. 

An employee dismissed while absent on parental leave for reasons related only to being absent on that leave could seek relief under the unfair dismissal laws of the Fair Work Act (section 385 et seq) or alleged discrimination contrary to the Sex Discrimination Act 1984 [Cth]

The bottom line: an employee is not automatically shielded from being made redundant because he or she is currently on parental leave. However, employers may want to treat any potential redundancy with particular care as a number of other laws, such as the unfair dismissal laws and sex discrimination laws, could potentially apply. 

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