"While on maternity leave
the company underwent a significant restructure. Upon a request to
return to work Ms Heraud was informed that her role had been made
In the recent case of Heraud v Roy Morgan Research Ltd
 FCCA 185, the Federal Circuit Court of Australia (FCCA)
found that Roy Morgan Research Ltd (RMR) contravened provisions of
the Fair Work Act (FW Act) by refusing an employee's request
for flexible working hours and making her redundant while she was
on maternity leave.
Under the FW Act, employers are prohibited from taking adverse
action against employees because they exercise a workplace
Ms Heraud held a senior position at RMR. While on maternity
leave the company underwent a significant restructure. Upon
requesting to return to work Ms Heraud was told that her role had
been made redundant, and was offered redeployment within the
company. Following a request for flexible working arrangements the
offer of redeployment was withdrawn and her redundancy was brought
Ms Heraud brought seven separate adverse action claims against
RMR, citing her workplace right to benefits under the FW Act in
respect of pregnancy, parental leave and requests for flexible work
Ms Heraud claimed that RMR took adverse action against her
failing to consult her about changes to her role.
failing to return her to her pre-parental leave role.
proposing to redeploy her to a role with a reduced status,
terminating her employment.
The FCCA found that RMR did take adverse action against Ms
Ms Heraud had a workplace right to parental leave and was
entitled to return to her pre-parental leave position. RMR failed
to return her to this position, or to redeploy her to one of a
comparative level; and
following Ms Heraud's request for a flexible work
arrangement, RMR withdrew it's initial offer to redeploy Ms
Heraud and instead terminated her employment.
In each of the three instances above RMR failed to rebut the
presumption that the adverse action was for the reason that, or for
reasons which included a reason that, Ms Heraud had exercised a
workplace right in relation to her pregnancy.
This case highlights the importance of adopting a cautious and
thorough approach in effecting redundancies concerning employees
who are on parental leave. The existence or exercise of a workplace
right need only be one aspect of the decision to make an employee
redundant to constitute adverse action and a breach of the general
protections provisions of the FW Act.
It is crucially important for employers to document the process
of decision-making by reference to non-discriminatory criteria that
are not causally related to the employee's workplace rights. It
is good practice to consult with employees being considered for
redundancy, even where they don't have an award or enterprise
agreement based right to be consulted, and to document that
process. Empathy throughout goes a long way to minimise the risk of
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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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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