Can you be made redundant while you are on parental leave?

Finding yourself facing redundancy while on parental leave can be both shocking and confusing. Many new parents wonder if this practice is even legal in Australia. The short answer is yes – but with significant qualifications and protections in place. If you’re concerned about your position, consulting with experienced redundancy lawyers in Sydney can help clarify your specific situation and options.

Key Takeaways

• Redundancies during parental leave can be lawful but must be genuine and not related to the employee taking leave
• Australian law provides specific protections for employees on parental leave through the Fair Work Act and anti-discrimination legislation
• Employers must follow proper consultation processes even with employees on leave
• Employees have the right to challenge redundancies they believe are unlawful, with specific timeframes for taking action
• Documentation is critical for both employers making redundancy decisions and employees challenging them

Legal framework in Australia

The Fair Work Act 2009 and National Employment Standards provide the foundation for parental leave rights in Australia. These laws establish minimum entitlements for all employees, including those on parental leave. The Act specifically protects employees from adverse actions because they’ve exercised their workplace right to take parental leave.

The general protections provisions under the Fair Work Act further strengthen these protections, preventing employers from taking adverse action against employees who exercise workplace rights such as taking parental leave.

“The intersection of redundancy and parental leave creates a complex legal area where both employers and employees must understand their respective rights and obligations.” – Stevens & Associates

When redundancy during parental leave may be lawful

A redundancy may be lawful during parental leave if it meets the criteria of a genuine redundancy. This occurs when the employer no longer requires the role to be performed by anyone due to operational changes, business restructuring, or business closure.

The test is objective and focuses on the position rather than the person. If a role is genuinely redundant, the fact that an employee is on parental leave doesn’t prevent the redundancy. However, if evidence suggests the redundancy is linked to the person’s parental leave, it may constitute unlawful discrimination.

Modern awards, enterprise agreements, and employment contracts may provide additional entitlements or processes beyond the minimum legal requirements, potentially affecting redundancy outcomes and entitlements.

Rights and entitlements while on parental leave

If made redundant while on parental leave, employees are entitled to notice periods and redundancy pay as specified under the Fair Work Act, relevant awards, or employment contracts. The calculation typically depends on length of service and award coverage.

Return-to-work rights are particularly important. Employees on parental leave have the right to return to their pre-leave position or an available position for which they’re qualified and is nearest in status and pay to their pre-leave position. A redundancy decision that doesn’t consider these rights may be challenged.

When redundancy and parental leave intersect, careful analysis is needed to ensure that parental leave entitlements haven’t been compromised by the redundancy process.

Employer obligations when proposing redundancies

Employers must use fair, objective, and well-documented selection criteria when considering redundancies that might affect employees on parental leave. These criteria should focus on business needs and role requirements rather than factors that could disadvantage those on leave.

Consultation remains mandatory even with employees on parental leave. Employers must make reasonable efforts to engage with these employees about proposed changes that could affect their position. This might mean arranging flexible meeting times or phone/video consultations.

Before finalising a redundancy, employers must consider reasonable redeployment options. This obligation extends to employees on parental leave, who should be considered for suitable alternative positions.

Thorough record-keeping is essential to demonstrate that decisions were based on legitimate business reasons rather than discriminatory factors.

Steps for employees who suspect an unlawful redundancy

If you suspect your redundancy while on parental leave was unlawful, collect and preserve all relevant evidence including:

• Written communications about the redundancy
• Documentation of selection criteria and process
• Notes from any consultation meetings
• Evidence of similar roles being maintained or created
• Performance reviews and feedback

Request written reasons for the redundancy decision and consider requesting an internal review or meeting with HR to discuss concerns. If these steps don’t resolve the issue, seek assistance from:

Be aware of strict timeframes for legal actions. General protection claims involving dismissal must typically be lodged within 21 days, while discrimination complaints have varying timeframes depending on the jurisdiction.

Practical scenarios and tribunal considerations

Consider a genuine business restructure where an entire department is eliminated. If an employee on parental leave worked in this department, their redundancy would likely be considered genuine despite their leave status.

Contrast this with a scenario where an employer hires a replacement during parental leave and then makes the returning employee redundant while retaining the replacement. Tribunals would carefully examine the timing, documentation, and business justification, potentially finding this arrangement suspicious.

When assessing redundancy cases, tribunals and courts typically examine:

– Whether proper consultation occurred despite the leave
– If redeployment opportunities were genuinely considered
– The timing of the decision in relation to the leave
– Whether similar positions were maintained or created
– Documentation supporting the business case for restructure

Practical tips for employees and employers

For employees: maintain copies of your position description and performance reviews before going on leave. Keep records of all communications about your role and return-to-work plans. Stay reasonably connected through agreed “keeping in touch” days if possible. If facing redundancy, seek professional advice promptly.

For employers: establish clear, documented business reasons for any restructures affecting employees on parental leave. Apply consistent selection criteria across all employees. Consider all possible redeployment options for affected staff. Maintain thorough records of decision-making processes. Consider timing carefully to avoid the appearance of targeting those on leave.

Transparent, ongoing communication benefits both parties. Regular, agreed check-ins can help employees stay connected and prevent misunderstandings about workplace changes.

Frequently asked questions (FAQ)

Can I be made redundant while on unpaid parental leave?
Yes, but the same protections apply as during paid leave – the redundancy must be genuine and not related to your parental leave status.

Will I receive redundancy pay if made redundant while on parental leave?
Yes, eligible employees are entitled to redundancy pay calculated according to their pre-leave employment status and length of service.

What if my employer fills my role while I am on leave?
Temporary replacements during leave are common and legal. However, if your role is given permanently to someone else without a broader restructure, this may not constitute genuine redundancy.

Can I challenge a redundancy decision and what remedies may be available?
Yes, through unfair dismissal or general protections applications, or discrimination complaints. Remedies may include reinstatement, compensation, or penalties against the employer.

Next steps if you face redundancy during parental leave

If you’re facing redundancy while on parental leave, review all documentation carefully and request written explanations for the decision. Consider whether the redundancy appears genuine based on broader business changes. Seek professional legal advice promptly to understand your specific rights and options.

For employers, ensure redundancy processes are fair, transparent, and well-documented, with particular attention to consultation obligations for employees on leave. Stevens & Associates can provide guidance to both employees and employers navigating this complex area of employment law.