An employee returning from a period of parental leave is entitled to be offered the same or a comparable position to the position occupied when the leave began, and the offer of less favourable treatment is unlawful.
In Thomson v Orica Australia Pty Ltd (2002) FCA 939, Ms Thomson had worked as an account manager with Orica where she had been responsible for a group of high value clients. On her return from maternity leave she was placed in a different account manager position, where manager was responsible was for what the Federal Court found were less prestigious clients. The person who had replaced Mrs Thompson remained in Mrs Thompson’s former position. The company refused to re-instate Mrs Thompson to her former position so she resigned and commenced proceedings on the basis that she had been constructively dismissed.
Orica argued that Ms Thomson had been returned to her previous position, namely an account manager position. However, the Court accepted that her new position carried less responsibility and status, and was effectively a demotion. The Court also concluded that at least part of the reason for the treatment of Mrs Thompson was that she had taken maternity leave. Accordingly, the Court held that Orica had discriminated against Ms Thomson on the basis of family responsibility and had wrongfully dismissed her in breach of an implied term of trust and confidence in her contract of employment.