In a recent case heard before the Federal Circuit Court, Roy Morgan Research was fined $52,000 for denying an employee’s request for flexible hours following her return from maternity leave, and then failing to return the employee to her pre-parental leave position.
While the company had undergone a massive restructure (which led to large scale redundancies), Roy Morgan had created an expectation that the employee would be redeployed to the Research Centre. Instead, she was sacked on account of redundancy. To make matters worse, the court found that the person covering her maternity leave was transferred into the position that would have been suitable for her. Importantly, the court took into account the fact that the employee was still on maternity leave with a young baby and now unemployed.
There is no doubt that balancing work and family life is tough enough as it is. Parents transitioning back into the workplace should be reassured knowing that, under the ‘return to work guarantee’, they have the right to come back to their pre-parental leave position. If that job no longer exists, they have the right to an available position for which they are qualified and suited, nearest in pay and status.
Even if jumping back into work is too much, employees have the right to request flexible working arrangements, provided they have worked for the employer for 12 months and they are the parent to a child who is school aged or younger. For instance, a parent might request to work part time, vary their start and finish times or work from home. Flexible working arrangements help ease the transition back into work, even if life at home has just become a little more chaotic. While employers are not obliged to agree to such a request, they must genuinely consider it and may only refuse on legitimate business grounds (which can include the cost to the employer, impracticality, impact on other employees and loss of productivity).
Employers must also consider their obligations under the Sex Discrimination Act 1984. Employees cannot be treated less favourably because they are pregnant, breastfeeding or have family responsibilities. Likewise, under the FWA employees are protected from adverse action, which includes discrimination in the terms and conditions of employment.
Employers must ensure their employees are not disadvantaged because of their family responsibilities; otherwise they run the risk of exposure to claims not only under the Fair Work Act but also pursuant to anti-discrimination laws and complaints to the Australian Human Rights Commission.
Lessons for Employers
- Ensure your company policy on parental leave includes information on entitlements and expectations. For example, information on how to keep in touch and flexible working arrangement policies.
- Genuinely consider all requests for flexible working arrangements- requests can only be refused on legitimate business grounds.
- If a request for flexible working arrangement is denied, the reasons for the refusal should be in writing. This will be beneficial if the need to defend a claim arises.
- If an employee comes to you with a request for flexible work and it is not entirely feasible, do not dismiss the idea completely. Negotiating a mutually beneficial outcome will go a long way in assisting their transition back into work.
- Ensure there is no discrimination or adverse action taken against an employee returning from parental leave.
- Employers have an obligation to prevent and respond to discrimination in the workplace. This includes developing and implementing a process to hear complaints and resolve disputes.
Returning to work after a period of parental leave may be challenging and overwhelming, particularly for new parents. However under the ‘return to work guarantee’, these employees are entitled to return to their pre-parental leave position. They also have the right to request flexible working arrangements to help maintain the balance between family and work life.
 Heraud v Roy Morgan Research Ltd (No 2)  FCCA 1797 (15 July 2016).
For more information or help with parental leave in your organisation, contact Andrew Bland and the BlandsLaw team on 9805 5600.