The recent decision of the Federal Circuit Court in Heraud v Roy Morgan Research Ltd [2016] FCCA 185 (‘Heraud’) is a timely reminder that employers need to be careful if they are restructuring the organisational chart whilst employees are on maternity leave.

Roy Morgan Research was found to have taken adverse action against Ms Heraud because of her decision to exercise a number of workplace rights.

Employees on parental leave have rights

Employees on maternity leave have a number of rights of which employers must be mindful when commencing the restructuring process.

First, the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, any decision which will have a significant effect on the status, pay or location of the employee’s pre-parental leave position.

Secondly, employees are entitled to return to their pre-parental leave position. If that position no longer exists, they are entitled to return to an available position for which they are qualified and suited and which is the nearest in status and pay to their pre-parental leave position.

Thirdly, employees who are responsible for caring for young children have a right to request flexible work arrangements.

Adverse Action

In Heraud, Roy Morgan Research decided to bring forward Ms Heraud’s redundancy by a month to the end of her maternity leave. They did so on the basis that it would not be ‘sensible’ for Ms Heraud to return to her pre-parental leave position for a short period. They thought that it would make better sense for the employee acting in Ms Heraud’s maternity leave position to continue until the role was abolished. That employee was about to finish a long term project.

This was found to constitute an adverse action. Roy Morgan Research could not satisfy the court that it did not bring the redundancy forward because Ms Heraud had exercised her workplace rights to take maternity leave and to request flexible work arrangements.

This is a timely reminder that the statutory rights of employees cannot be ignored on the basis that it is convenient to do so. Employers must always have the statutory entitlements of employees at the front of their mind when engaging in a restructuring process. Employees who are returning from parental leave must be allowed to return to their pre-parental leave position or, in the event that that position has been abolished, a position of similar status and pay.

How can JFM Law help?

If you have any queries about your obligations as an employer or rights as an employee when it comes to maternity or parental leave and would like some free of charge legal advice, please give me a call on +61 2 9331 0266 or email me at clowe@johnfmorrissey.com.au.

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