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  FMCA 463 &  FMCA 746.
4 Reddy v International Cargo Express  NSWADT 218
5 Tleyji v Travel Spirit Group  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.