What are the obligations of the employer during the employee’s parental leave?

Recently, the Fair Work Commission ruled in favour of the employee claiming unfair dismissal as the employer had failed to “keep in touch” with its employee, who was made redundant, while on parental leave.

The case symbolizes the benefits of the “keeping in touch” system even while the employee is on parental leave to avoid any sort of miscommunication.

Background

·       The office administrator began her parental leave on October 2023.

·       The administrator then sent her employer a letter on October 1 2024, requesting extension of parental leave for another year.

·       However, the employer had declined her request only on December 9.

·       When the employee asked for a reasonable explanation, the employer simply emailed "I do not have a position for an admin person anymore due to the downsizing and the role is now redundant"

What had the employer failed to do?

·       The employer failed to simply pick up the phone, check in and explain the situation to the administrator after he made his final decision on her redundancy.

·       The employer emailed the administrator about her redundancy only after the administrator herself initiated contact with the employer to ask for an explanation on declining her extension of the parental leave request.

The employer’s defence to the FWC was that:

·       His business was facing major financial difficulties and that is why he decided to make the administrator’s role redundant;

·       He is now the only employee of the business; and

·       He had not heard from the administrator for many months and just assumed that she decided not to return to work.

Why did the FWC favour the employee?

·       There was no contact whatsoever between the office administrator and employer during the entire period of parental leave, and so the employee had no idea of the redundancy until she received the employer’s email.

·       A simple email sent after not keeping in touch with the administrator during the one year parental leave was not an appropriate way of giving notice of the dismissal.

·       The employer failed entirely to meet “basic standards of decency” when he only emailed and did not even discuss with the employee beforehand about the redundancy. This clearly shows the employer did not keep in mind the significant impact of the decision on the administrator.

The FWC made its decision based on the employer’s failure to meet his obligations under the Fair Work Act and the Clerks – Private Sector Award.

It is important for employers to take note that both the Fair Work Act and the Clerks – Private Sector Award clearly says that an employer has to discuss with the employee, the significant effects of the employer’s decision (including redundancy) on the employee’s position, which was clearly not seen in this case.

This article is general in nature and is not legal advice. If you need help dealing with redundancies, working arrangements with employees, or require assistance with another employment law matter, Voice Lawyers can assist you.

We help people navigate the complexities of the Fair Work Act and workplace laws with confident, practical advice. You can contact us at office@voicelawyers.com, or give us a call at 02 9261 1954 or use the link on our website to book a consultation to speak with one of our lawyers.

By Kayte Lewis and Tabitha Reji