Australia: Bringing Up Baby – When Employees Return From Maternity Leave

Last Updated: 2 September 2009
Article by Janice Nand

An employee's return to work after a period of maternity leave often raises issues for the employee and the employer.

Two issues which regularly arise in relation to meeting the statutory requirements to accommodate the return to work include:

  • Where the employer does not want to return the employee to the pre-maternity leave position due to the employee's previous performance in that position (where the issues have come to light during the employee's absence)
  • Where the employer is of the view that the relevant duties cannot be performed on a part-time basis.

In summary, Federal and State legislation requires employers to either return employees to their pre-maternity leave position or, where that position no longer exists, to a position which is near in status and remuneration to the pre-maternity leave position1.

Similarly, Federal and State antidiscrimination legislation also makes it unlawful for employers to discriminate against employees on the ground of carer or family responsibilities2.

The following cases indicate the risks involved where employers do not return the employee to her previous position or accommodate requests for part-time work.

Returning to previous position

LHMU v Cuddles Management Pty Limited3

An employer informed a child care centre manager that when she returned from maternity leave she would be in a lower level position (although her pay would be maintained).

The employer held the view that the manager left the child care centre in a disorganised state when she went on maternity leave and also held her responsible for the centre failing a government funding accreditation process in her absence.

The Federal Magistrate's Court found the employer's refusal to return the manager to her previous position constituted a dismissal and was unlawful under sections 792 and 793 of the Workplace Relations Act 1996 (Cth).

Based on the evidence before it, the Court rejected as 'spurious' the employer's reasons for not returning the manager to her position.

The Court imposed a civil penalty on the employer (payable to the union which commenced the proceedings) of $29,700 in respect of the unlawful termination.

However, due to the limited evidence before it regarding the manager's loss, the Court only awarded $3,900 in damages to her in respect of the four weeks notice she would have been entitled to on termination of her employment contract.

Returning on reduced hours

Reddy v International Cargo Express4

A customs broker was the sole manager of the customs section when she went on maternity leave for 12 months. She asked to work three days per week for a period of time following her return from maternity leave to meet her child care requirements.

The employer refused her request on the basis that it was unworkable. In its responses to the request, the employer commented that its obligations did 'not include meeting [her] personal circumstances, however praiseworthy those circumstances might be' and that her proposal 'would require an entirely new regime of management within the company'.

The manager resigned and commenced discrimination proceedings.

The NSW Administrative Decisions Tribunal (ADT) found that the employer's requirement for all employees to work full time constituted indirect discrimination (it was an unreasonable requirement which the manager could not comply with due to her childcare responsibilities).

In particular, the ADT found the employer had failed to properly consider the manager's proposal and had responded to it in a "knee-jerk" way. This was demonstrated by the speed of the response and the absence of any evidence that alternatives had been considered, such as job-sharing or the manager's proposal to be available by phone for emergencies.

The ADT also rejected the employer's argument that cost was in issue as the cost of the part-time proposal would have been off-set by the reduction of 40% in the manager's salary and the additional cost of recruiting a replacement. The ADT commented:

'An assessment of whether a particular requirement is not reasonable cannot be answered by simply asking is a practical and feasible alternative available. However, it is abundantly clear ...that the availability and feasibility of an alternative/s cannot be ignored.'

The employer was ordered to pay the manager $16,385 in damages.

Tleyji v Travel Spirit Group5

A similar situation arose in relation to a travel consultant who requested part-time work following her return from maternity leave. The employer refused her request to return to her own job on a part-time basis. This was because two of the four staff in the relevant area were already part-time and a third part-timer would not be feasible.

The employee was offered alternative parttime jobs that were not as well paid or as convenient.

The ADT found that the employer had failed to give proper consideration to whether the consultant could perform her role on a parttime basis, either as proposed by her or a variation of that proposal.

For example, the employer had not considered whether the other employees could work full-time, whether a job sharing arrangement was possible or whether the employee could undertake a trial period on part-time duties.

The ADT ordered the employer to pay the employee $5,000 in damages.


Where an employer believes that an employee should not return to a position after maternity leave for reasons relating to performance or conduct, cogent evidence will be required. As demonstrated in LHMU v Cuddles Management Pty Limited, undocumented and unsubstantiated allegations and assertions will not be sufficient.

In considering a request for part-time arrangements after a period of maternity leave, employers need to give proper consideration to the request and the options for accommodating the request.

This includes considering, and evidencing the consideration of, factors such as:

  • The nature of the work required to be performed
  • The duration of the proposed part-time arrangement
  • Any alternative or compromise arrangements such as job-sharing, working from home, changes which other employees may agree to make, or undertaking a trial period
  • Whether the cost of accommodating the part-time arrangement would be offset by other savings such as in salary and recruitment and training costs.

A failure to properly consider a request can expose employers to legal risks in terms of discrimination, unlawful and unfair termination claims.


1 For example, see s.280 Workplace Relations Act 1996 (Cth) (until 31 December 2009); s.84 Fair Work Act 2009 (Cth) (from 1 January 2010); s.66 Industrial Relations Act 1996 (NSW)

2 For example, see ss.7A & 14 Sex Discrimination Act 1984 (Cth); Part 4B Anti-Discrimination Act 1977 (NSW)

3 LHMU v Cuddles Management Pty Limited [2009] FMCA 463 & [2009] FMCA 746.

4 Reddy v International Cargo Express [2004] NSWADT 218

5 Tleyji v Travel Spirit Group [2005] NSWADT 294

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.