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Maternity Leave & Redundancy

This infosheet provides options for employees to consider in an attempt to reduce the risk of their job being made redundant while they are on maternity leave, as well as outlining potential legal courses of action if their job is made redundant while they are on maternity leave.

The purpose of this Infosheet is to help employees understand the interaction between maternity leave and redundancy, which is the subject of many inquiries received by JobWatch. In JobWatch’s experience, it is not uncommon for an employee to find that their position has been made redundant when they attempt to return to work from maternity leave.

This Infosheet provides options for employees to consider in an attempt to reduce the risk of their job being made redundant while they are on maternity leave, as well as outlining potential legal courses of action if their job is made redundant while they are on maternity leave.

Maternity Leave under the National Employment Standards (NES)

To better protect your employment rights, you should, if eligible, formally apply for unpaid parental leave (which includes maternity leave) under the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (FW Act). If you are unsure of this process, please refer to JobWatch’s ‘Parental Leave’ Infosheet as soon as possible.

If you take maternity leave under the NES, your employer has a number of options for dealing with your absence. For example, it may:

• Do without your role and duties while you are absent on maternity leave; or
• Distribute your duties amongst existing employees while you are on maternity leave; or
• Fill your position by hiring a ‘replacement employee’ pursuant to section 84A of the FW Act.

A ‘replacement employee’ is employed on a temporary basis to perform the role of an employee who is on maternity leave and is aware that the person on maternity leave has a right to return to their prematernity leave position when their maternity leave has ended.

It may be a reasonable course of action for you to suggest to your employer that it should hire a ‘replacement employee’ to perform your role while you are on maternity leave because, at least then, your role will still be performed by someone rather than be made redundant (see below).

Your rights while on maternity leave

  • The ‘Return to Work Guarantee’
  • ‘Obligation to Consult with Employees on Unpaid Parental Leave’
  • Keeping in touch days’

How can I reduce the risk of my job being made redundant while I am on maternity leave?

Ultimately, your employer has the right to structure its business any way it thinks fit subject to compliance with relevant laws including unfair dismissal, general protections and anti-discrimination. Nevertheless, there are some simple steps that you can take which may reduce the risk of your position being made redundant while you are on maternity leave including:

  • applying formally for unpaid parental leave (which includes maternity leave) under the NES thereby activating the ‘return to work guarantee’;
  • suggesting that your employer fill your position with a temporary ‘replacement employee’ (possibly someone you know) rather than distribute your duties amongst existing employees;
  • reminding your employer that it is obliged to consult with you while you are on maternity leave regarding any decision that will have a significant effect on your job; and
  • using your ‘keeping in touch days’ strategically to create evidence that your job has not been made redundant.

Also, remember that if your employer fails to consult with you as required while you are on maternity leave, you must still be employed by your employer in order to activate the dispute resolution procedure under the relevant Modern Award or Enterprise Agreement (if any), so act quickly if you wish to challenge your employer’s lack of consultation.

What rights do I have if my job is made redundant while I am on maternity leave?

If, while you are on maternity leave, your employer distributes your duties among existing staff members or does without your job entirely and when you attempt to come back to work after your maternity leave, you are told that your position has been made redundant, you may be able to make a legal claim regarding the termination of your employment.

Whether or not you have a good legal case and which claim you should choose to make will depend upon the facts of your particular situation. You should obtain independent legal advice as soon as possible regarding these issues because you only have 21 days from the date your dismissal takes effect to file an Unfair Dismissal or General Protections Dispute Termination Claim at the Fair Work Commission or 6 months to file a discrimination complaint at either the the Australian Human Rights Commission (AHRC) or your States anti-discrimination commission/tribunal.

As you can only make one claim regarding the termination of your employment, you will have to choose the claim and the jurisdiction that best suits your particular situation. Some of your potential legal options are outlined in the attached fact sheet. These legal options are in addition to any claim for your entitlements on termination such as unpaid pay instead of notice and redundancy pay.

For more information about maternity leave, redundancies, and your options, download the full fact sheet.

For further support

Call our Telephone Information Service on Melbourne Metro (03) 9662 1933 or Regional Victoria, Queensland and Tasmania on 1800 331 617.

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