Staff returning from maternity/parental leave 

 
The Workplace Relations Team receive many queries relating to what the process is when a staff member is returning form maternity leave or what to do if their position is no longer available. This can be tricky to navigate, and if not done properly, could potentially lead practices into claims of discrimination being made against them. 

Employers have two obligations to employees returning from maternity leave:

• to ensure the employee is not disadvantaged by having taken maternity leave, and
• to accommodate any reasonable request of an employee for flexible working arrangements. 

At the end of an employee’s parental leave, they have the right to return to work in the position they held before starting their parental leave. If their old position doesn’t exist when they return, the employee is entitled to an available position for which they are suitably qualified, which is nearest in status and pay to their pre-parental leave position.

In a decision from the Federal Court of Australia, an employer was found to have constructively dismissed a female employee and discriminated against her when they failed to return the employee to the same job after her return from maternity leave. 

The court found the employer discriminated against the employee due to her pregnancy on the basis that:

• the employer refused to allow the employee to return to the same position that she held prior to going on maternity leave, and
• the employer would not have been moved by the company to another position if she had not fallen pregnant and taken maternity leave.

This decision demonstrates that employers are required to allow employee’s returning from maternity leave to return to the same position they occupied prior to going on maternity leave (as if they had never been on leave). Of course, as mentioned previously, if the position does not exist than the employee should alternatively be provided with a comparable position.

Employers should avoid making assumptions about what the employee will or won’t want to do in their return. You should make sure you are communicating regularly in the lead up to them returning to make sure you have an understanding of their needs as well. This is generally done at least four weeks before the employee's return to work date. This will help support their transition back to the workplace. 

You might find staff returning from parental leave may ask for a change in their working arrangements when they come back into the workforce. This is something they are allowed to do as part of their right to request flexible working arrangements under the Fair Work Act. This may look like a transition in their working hours over an agreed period of time. 

For example: coming back to work two days per week for the first month, increasing to three days for the next month, and then returning to their normal working hours. 

Another decision from the Magistrates Court determined an employee had been indirectly discriminated against as she had been dismissed due to their new family responsibilities and their employer refused to accommodate their request to work part-time after returning from maternity leave. 

The court found the employer, without sufficient reason, was unwilling to agree to the employees request to work part-time after her return from maternity leave and the organisation had filled her full-time position before she returned to work. Accordingly, the magistrate held the employee had been directly discriminated against as her employer had terminated her employment because of her family responsibilities. 

This case further verifies that it is unlawful for an employer to take adverse action against an employee for reasons related to their pregnancy or their entitlement to parental leave.