Psychosocial risks to which staff may be exposed in the event an employee’s request to extend her parental leave is granted have been relied on to substantially defeat the employee’s request in the decision of Jessica Donnelly v Whitehaven Coal Mining Ltd [2026] FWC 3200.
Background
The applicant commenced 12 months parental leave on 1 August 2025. She was due to return to work on 3 August 2026. On 6 February 2026, she made a request to her employer under section. 76 of the Fair Work Act 2009 (Act) for an extension of her unpaid parental leave to 3 February 2027. This was refused by the employer on 16 February 2026.
On 10 July 2026, the applicant lodged a dispute under section 76B of the Act with the Fair Work Commission with respect to the refusal. A refusal of a request under section 76 A must be made on “reasonable business grounds”.
The applicant had unique experience and a highly valuable set of skills the employer required within its Data and Analytics team. This made it difficult to back fill her position, particularly on a temporary basis.
Decision
The Manager who oversaw the Data Analytics function gave evidence that all of the team had been working longer hours in the applicant’s absence and he was concerned the team continuing to absorb additional workload was unsustainable and posed a general risk to their health and safety.
Another witness of the employer, who directly managed the Data and Analytics team, gave evidence that the team were already working over capacity to cover the applicant’s absence and some members were working longer hours. He stated that, if the applicant did not return from parental leave, he would have to consider refusing annual leave applications. He also voiced his concern that an acceptance of the applicant’s request would create a risk to the employees’ physical and psychosocial welfare, in circumstances where burnout remained a genuine concern for the team.
The employer submitted the workload of the team had increased dramatically before the applicant originally planned to return to work and the team was supporting four mines. Work was also being delayed and in some cases being missed.
The Commission found the employer’s evidence of reasonable business grounds provided a satisfactory basis to refuse the request. The Commission granted a modest extension to the period of parental leave until 11 September 2026, which aligned with the applicant’s ability to obtain four days of childcare.
Implications
Commissioner Spencer noted the similarity between the regime under the Act relating to requests to extend parental leave and requests for flexible work arrangements, such that the case law is relevant to both areas. Whilst there are both procedural and substantive requirements to be satisfied in order for an employer to refuse these types of requests, the need to satisfactorily reference (and evidence) reasonable business grounds for refusing requests is key.
Whilst no orders for compensation can be made in these disputes, Employment Practices Liability insurers may still be exposed to defence costs when their insureds have to respond this type of litigation.
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