Unpaid parental leave and security of the job

The statutory return to work guarantee provided for by sec 84 of the Fair Work Act to employees taking unpaid parental leave does not mean that an employer may not restructure its business and abolish a job formerly held by an employee in that situation.

“Although an employee such as Ms Clare has a right to take unpaid parental leave for a

period of 12 months, which may be extended, under Division 5 of Part 2-2 of the Act, this does

not provide any guarantee that their employer will still be in business or their job will still exist

at the conclusion of their period of parental leave. The Act does not prohibit an employer from

making changes to its business during an employee’s period of unpaid parental leave, including

changes which impact on the position of the employee on such leave.

[64] In Stanley v Service to Youth Council Inc50 and Poppy v Service to Youth Council Inc,

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the employer restructured its business while the employees were on parental leave, with the

result that the positions held by the employees were no longer required, and their employment

was terminated on the grounds of redundancy. Justice White held that, because the termination

of employment served to end the period of parental leave, the guarantee in s 84 of the Act was

enlivened. However, it was held that the guarantee was not breached by the employer because

the pre-parental leave positions of the employees no longer existed and there were no other

positions available for the employees. For the reasons set out above, the same analysis applies

to the present case.

[65] As to Ms Clare’s argument set out in paragraph [62(d)] above, the fact that Ms Clare is

protected from unfair dismissal in the sense that she is eligible to make an application for relief

from unfair dismissal does not say anything about the fairness of her dismissal.”

 

Clare v The Bet Deck Pty Ltd [2023] FWC 2309 delivered 11 September 2023 per Saunders DP