Roy Morgan Research Ltd has recently learnt the hard way
that, when it comes to the Fair Work Act, it pays to ensure strict
compliance over expediency.
Under the "return to work guarantee", an employee
returning from maternity leave is entitled to return to their
pre-maternity leave position or, if that position no longer exists,
the nearest available position in terms of status and pay for which
they are qualified.
Roy Morgan was on the receiving end of a general protections
application, filed by a returning mother who was sacked on account
of redundancy. The Court accepted that Roy Morgan was undergoing a
genuine restructure which meant that the returning mother's
position ceased to exist. Tick.
However, the Court concluded that when the returning mother
flagged flexible working arrangements upon her return, and in
circumstances where her mat leave cover was working on a particular
project that was due to complete in a couple of months anyway, Roy
Morgan took the approach that it would be more expedient to simply
bring her redundancy forward.
The Court found that not only did the mat leave cover remain in
the role for two months after the mother was due to return to work,
but the mat leave cover was then redeployed to another position
within the business which would have been suitable for the
Penalty and damages are yet to be determined. But we do know
that a breach of the Fair Work Act can result in penalties of up to
$54,000 for a corporation, and $10,800 for an individual
"involved in" the contravention. That means HR Managers
(or other decision makers) can be in the gun for personal
And given the mat leave cover was redeployed to a new role and
remains with the organisation, it certainly speaks to the returning
mother having suffered serious economic loss. Ouch.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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