Most Read Contributor in Australia, September 2016
A recent Federal Circuit Court decision (Turnbull v Symantec
(Australia) Pty Ltd  FCCA 1771 (1 November 2013))
highlights the risks for an employer who elects to make a parental
leave employee redundant rather than return them to work.
The Symantec decision concerned a financial controller
who was retrenched upon her return from 8 months' parental
leave. The employee alleged that her dismissal contravened s
84 of the Fair Work Act 2009 (Cth).
Contravention of this provision exposes the employer to
liability for contravention of a civil remedy position, as well as
orders for compensation.
In the Symantec case, the pre-parental leave position
was made redundant. However the redundant employee alleged
that her employer failed to return the employee occupying that
position to an "available position" that she was
qualified and suited to fill.
In the decision, the Court made the following useful
observations about the operation of s 84:
Where, upon cessation of unpaid parental leave, an employee's pre-parental leaveposition no longer exists, but there is an
"available position for which the employee is qualified
and suited nearest in status and pay to the pre-parental
position", s 84 obliges the employer to inform the
employee of the existence of that position. Whether or not
there is an "available position" is something
that would be peculiarly within the knowledge of the employer, not
An available position might be one that is available overseas,
or is available in a legal entity separate from the employer, if it
is within the power of the employer to make that position
The employer must then determine whether there are available
positions comparable in status and pay with the pre-parental leave
position and, if there are two or more such positions, the employer
must make available to the employee the available position which is
nearest in pay and status to the pre-parental leave position. If
there is no available position comparable in pay or status with the
pre-parental leave position, the employer will have no obligation
under s 84 to make any position available to the employee.
The test for determining whether an available position is one
for which the employee was qualified and suited, and which was
nearest in status and pay to the position she occupied immediately
before she went on parental leave is to ask whether a person,
having the qualifications and experience of the employee in
question, would seriously consider taking that position.
For the purpose of answering that question, it would be
relevant to receive direct evidence from the employee in question
about whether the employee would have accepted the position if it
were offered to the employee. Such evidence, however, would not be
conclusive. Objective evidence such as the comparative tasks, pay,
and status of the pre-parental leave position and the available
position would also be relevant and stand as a measure against
which to assess any direct evidence the employee may give.
In the Symantec case, the Court ruled that the position
claimed to be available by the employee was "available"
for the purposes of s 84. However, because the employee did
not give any evidence about whether she would have accepted the
position had it been offered to her and offered no explanation why
she led no such evidence, the Court ruled that the position was not
one which was nearest in status and pay to the position the
employee occupied immediately before she went on parental
leave. This was supported by the fact that the position
attracted less pay and less responsibility than the pre-parental
Lesson for employers
If you are seeking to declare a position redundant and the
employee in that position is on parental leave, you should
undertake the followings steps:
Identify what, if any, positions are vacant for which the employee
may be qualified and suited. These may exist in related
businesses, including at locations interstate or overseas, provided
it is within your power to offer employment in them.
Give the employee details of these roles and meet with them to
understand their views about being employed in those roles.
Explain that this is so that you can make a final decision as to
whether the employee is qualified and/or suited for the roles.
If the employee is not interested in the roles, then you have met
your obligation under s 84 and you can proceed to retrench the
Even if the employee expresses interest in the roles, it is open to
you (after you have undertaken steps one and two) to indicate that
you do not believe that the employee is qualified and/or suited for
the vacant positions, resulting in retrenchment.
You should keep accurate records of these discussions.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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