Return to Work from Parental Leave – Do you know your employer obligations?
The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed a general protections claim alleging dismissal during her return from parental leave.
The employer claimed the worker resigned voluntarily prior to her parental leave when she indicated that she didn’t want to return to her full-time position. However, the employee claimed she had been dismissed when trying to arrange her return to work.
In short, a full time Business Development and Training Officer who commenced with her employer in May 2022 went on unpaid parental leave from December 2023. In September 2024, the employee met with her manager to discuss her return from parental leave. The employee expressed a desire to return in a part time administrative position, working from home which the manager responded positively, saying "I think we can do that." However, the worker claimed her manager told her in November 2024 that she would need to resign from her position to take up the new role. The worker did not resign.
Throughout December 2024 and January 2025, the employee attempted to confirm her return-to-work arrangements, indicating she could return in late January or early February 2025. In late January 2025, her manager said she was awaiting approval from the CEO for the part-time arrangement.
On 6 February 2025, her manager sent an email stating: "Unfortunately, no positions have been created or are currently available at this time... confirming that your employment with us has ended". When she called to clarify, her manager said she had not been dismissed and the CEO emailed stating she had "verbally resigned" in September 2024 when the worker advised she did not wish to return to her previous full-time position. The manager testified she never advised the worker to resign but did tell her she needed to confirm she didn't want to return to her original position and claimed she told the worker her original role wasn't available anymore.
After the worker informed the CEO she had received legal advice, the employer offered her a part-time administration position on 10 February 2025. The worker declined, stating her employment had already been terminated.
The FWC rejected the employer's claim the employee had resigned in September 2024 and confirmed a worker is entitled to return to either their pre-parental leave position or, if that position no longer exists, a comparable available position. By February 2025, the employee was due to return, but "the employer did not have a position to place her into and had not indicated one was approved and available."
The FWC determined the worker was dismissed within the meaning of the Fair Work Act. The matter would proceed to conference to consider options such as financial compensation for the employee
Keys lessons include the following:
Fair Work has specific requirements and entitlements regarding parental leave and return to work for eligible employees.
Understand those entitlements prior to an employee taking leave and ensure all relevant steps are followed.
Never make assumptions on behalf of an employee.
If you need assistance understanding your obligations as an employer, please contact HRAnywhere.