Had your baby and ready to return to work? No job to return to? You might be just one of the many women facing ‘sham’ restructures and redundancies in the workplace, says Alison Dutton, Principal Solicitor of
Many clients come to me with employment matters concerning redundancies that have occurred during the period of parental leave, or immediately upon contacting the employer to confirm a return to work date.
While the act of making a position redundant is not unlawful in itself, the particular circumstances, selection of employees and consultation process around the decision to terminate needs to be carefully examined. The employee who has taken a period of parental leave is often (conspicuously) the only worker to be made redundant at this time.
The recent Federal Circuit Court decision of Heraud v Roy Morgan Research Ltd has drawn much needed attention to the vast numbers of women being made redundant during parental leave. While each situation is understandably factually different, common elements of ‘sham’ redundancies include: a failure by the employer to consult with employees on parental leave, retention of the parental leave replacement employee who is initially employed on a fixed term contract (and then is subsequently employed on a permanent basis), the amendment of the substantive or pre-parental leave position to include marginally different requirements, and may include a semantic amendment to the job title of the substantive position.
The employer may also fail to offer the affected worker redeployment to alternate suitable positions, even if these positions are lower in status and remuneration. In many situations, it may be preferable for an employee to be redeployed to a lower level position in order to maintain continuity of employment, rather than be terminated and be forced to seek employment elsewhere.
An employer should also offer the affected employee the opportunity to apply for higher-level positions if the employee is suitably qualified and experienced. In many cases, the parental leave contractual replacement is promoted to a position above the employee who is returning from parental leave, and the returning employee is now required to report to the parental leave replacement who has now become their manager.
Such elements as these may be regarded as ‘adverse action’, or actions taken against an employee for a prohibited reason, such as pregnancy, exercising a workplace right such as taking a period of parental leave, making a flexible working request and/or having family responsibilities. Employees on parental leave are especially vulnerable to restructures as often when not physically present in the workplace, the employer will (conveniently) ‘forget’ to inform and/or consult with the employee. There is also a tendency amongst some employers to favour, retain and promote, the parental leave replacement employee over the returning employee.
If you feel that you have been unfairly selected for a redundancy, that a restructure has been manufactured in order to terminate your employment, or if your employer has failed to consult with you or offer suitable redeployment, you may be eligible to make a general protections claim with the Fair Work Commission. Check out the Fair Work Commission’s website at www.fwc.gov.au or contact Labour Pains Legal: Employment Law Specialists for a free, untimed and no-obligation consultation about your situation.
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