The Federal Circuit Court has found that making an
employee redundant during a period of maternity leave, and
following a request for a flexible working arrangement, was adverse
In the penalty decision of Heraud v Roy Morgan Research ltd (No
2)  FCCA 1797, the Federal Circuit Court has ordered Roy
Morgan Research Ltd to pay $52,000 in compensation to a former
employee, Ms Heraud, for exercising her workplace rights.
What is the case about?
Ms Heraud was the National Operations Director for Roy Morgan.
Ms Heraud commenced maternity leave in September 2013 and was due
to return to her role in July 2014. While she was on maternity
leave, Roy Morgan restructured the company following a downturn in
revenue. In response to this downturn, Roy Morgan allegedly made Ms
Heraud's role redundant and offered Ms Heraud a redeployment
opportunity to work in its Research Centre.
Ms Heraud subsequently made a request regarding flexible working
arrangements. Following this request, Roy Morgan retracted its
offer and informed Ms Heraud that her flexible working request was
not approved. Ms Heraud's employment was subsequently
terminated on the basis of redundancy.
Ms Heraud filed an adverse action application against Roy Morgan
on the basis that she was made redundant because she exercised a
workplace right, including the right to take maternity leave.
What did the court find?
Under section 340 of the Fair Work Act 2009 (Cth), an employer
must not take adverse action against an employee because they have
exercised a workplace right.
In this matter Judge Jones found that Roy Morgan had contravened
section 340 of the Fair Work Act on three separate grounds:
Roy Morgan had taken adverse action against Ms Heraud by not
allowing her to return to her pre-parental leave position because
she had exercised her right to take maternity leave;
Roy Morgan failed to redeploy Ms Heraud to a position in the
Research Centre, after creating an expectation that she would,
because of her request for flexible working arrangements; and
Ms Heraud was made redundant because she exercised her
workplace right to request flexible working arrangements.
What penalties were ordered?
Roy Morgan was ordered to pay Ms Heraud $52,000 in compensation
for its serious contraventions of the Fair Work Act. The Court took
into consideration the employee's economic loss suffered as a
result of the adverse action and non-economic loss, including loss
of enjoyment, distress and embarrassment. Judge Jones found that
the employee was in a vulnerable position following maternity leave
and that the contraventions by the employer were of a serious
What does this mean for employers?
Employers should have strategies to effectively manage the
redundancy process to ensure compliance with workplace laws and
minimise a company's exposure to claims such as this one. If
you require any advice in relation to adverse action and the
redundancy process do not hesitate to contact us.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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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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