Redundancies — are PL employees treated differently?

Q&A

Redundancies — are PL employees treated differently?

Employees on parental leave have most of their employment conditions suspended during the period of leave; so, are they in a different position from other employees when redundancies occur at a business?

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Employees on parental leave have most of their employment conditions suspended during the period of leave; so, are they in a different position from other employees when redundancies occur at a business?

This question was recently sent to Workplaceinfo.

Q  Due to a downturn in business, the company must unfortunately make a number of employees redundant.

One of the employee’s selected for redundancy is currently absent on unpaid parental leave — she is expected to be returning to work at the beginning of next year.

Our HR manager is concerned that this redundancy may be viewed as an act of discrimination by the company, although the company is confident that the selection criteria used in this process is objective.

The employee has been the subject of a number of disciplinary warnings due to unexplained absences from work.

Does the employee have an absolute right to continued employment if absent on unpaid parental leave?

A  The employee’s absence from work on unpaid parental leave does not offer the employee any greater protection from dismissal than if she were at work.

Indeed, the most common reason for a dismissal while absent on unpaid parental leave is the employee’s position becoming redundant.

Provided the selection criteria applied to determine which position(s) are redundant are objective, and the redundancy is based on meeting the operational requirements of the enterprise, a dismissal would be regarded as valid in that circumstance.

In a matter on this point, the (then) Australian Industrial Relations Commission determined that 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 is otherwise properly and fairly carried out. See: Tanya Kerrison v Air International Pty Ltd — PR972479 [2006] AIRC 297 (17 May 2006)
 
The applicant argued that because her original position had become redundant, she was entitled to the position the employee held immediately before starting parental leave, or if that position no longer existed, a position similar in status and responsibility to the original position.

The AIRC determined that this provision only applied when the employee returned from unpaid parental leave, and not during the period of unpaid parental leave.

Discrimination?

An employee dismissed while absent on unpaid parental leave for reasons related only to the employee’s absence on that leave could seek relief under the unfair dismissal laws under the Fair Work Act 2009, or alleged discrimination under the Cwlth Sex Discrimination Act 1984.

Source: Paul Munro, IR Consultant.
 
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