I am often advised by clients who are taking or have completed the taking of maternity leave (more properly called parental leave now under the Fair Work Act 2009), that they understand that at the completion of their leave they are entitled to return to work in their pre-parental leave position. This is too simplistic and I have recently been told that it is the position of the Fair Work Ombudsman. But if it is, it is wrong.
Although this is certainly the case if the position still exists, whether or not it is occupied by another person, there is no obligation upon an employer to maintain a position merely because its occupant is taking parental leave. If the position genuinely becomes redundant, then the employer must offer to place the returning employee into an available position for which the employer is qualified and suited nearest in status and pay to the pre-parental leave position (sec 84). In the event that no such alternative positon exists, the employee is entitled to redundancy entitlements.
The employee is not entitled to have the employer create a position to which to return, and this is the unfortunate myth which appears to prevail in the community.
The legislative presumption is that an employee taking parental leave is not to be disadvantaged by either a pregnancy, the birth of a child or the taking of the leave. And that is as it should be. However the position is not that the employee has more rights than other employees. And that is also as it should be.
An employee taking or having taken parental leave may not be discriminated against and consequently if that employee’s position is made redundant other than perfectly legitimately, or the lack of an available alternative position results from discrimination, then an affected employee will be protected by the unfair dismissal and general protection laws in the Fair Work Act and other specialized State and Federal anti-discrimination laws. So if a restructure rendering the original position is not legitimate and is designed to thwart the employee’s parental leave rights, there may be an unfair dismissal or constructive dismissal and if an alternative position is filled by another employee, it may be reasonable easy to prove that it is an actionable discrimination.