We would receive, on average 4-5 calls a month from women who have been made redundant while on parental leave, upon their return when working in a part-time capacity. And while in many circumstances the redundancy is “legitimate & legal”, it often ALSO seems to include a discriminatory element, and leaves employees to face the demands of a new baby whilst navigating a now uncertain professional and financial future.

In this article we will give you the tools to discern the difference between a legitimate and an illegitimate redundancy to ensure that you are aware of your rights if you are made redundant whilst on parental leave. But more importantly, we want to provide you strategies to position yourself to mitigate the likelihood you will be made redundant by proactively managing stakeholders. Because as the data shows, it is very difficult to prove discrimination was present in a redundancy.

Australian Law

The 2009 Fair Work Act and the 2010 Paid Parental Leave Rules are the two relevant pieces of legislation that dictate the rights that employees have to return to work following parental leave, and stipulate under what conditions an employee can be made redundant.

The 2010 Paid Parental Leave Rules include a ‘return to work’ guarantee. This guarantee ensures that an employee taking parental leave is entitled to return to the position that they held before going on leave upon returning to work. However the legislation acknowledges that in the period that an employee is on leave the organisation in which they work may have undergone a restructure and their role may have been redesigned or abandoned. In this case the Paid Parental Leave Rules stipulate that the employee on leave is entitled to return to a position that closely reflects their qualifications and is close in status and pay to the position the employee held before taking leave.

However, what happens if your workplace has restructured, or downsized so significantly that there is no longer a position for you within the organisation? In most cases this will result in you being made redundant. Employees on parental leave are no more secure from the threat of redundancy than any other employee. Therefore if your business makes you redundant whilst you are on parental leave they are in their rights to do so, however there are some things you should be aware of to ensure that your redundancy is legitimate and fair.

1. A genuine redundancy is about a job, never about a person. The point of a redundancy is to terminate a position that no longer has utility within an organisation. A redundancy is not a solution to address a performance issue, nor a way of terminating a person’s employment within an organisation. So if you believe you have been made redundant because your manager believes you will no longer be able to maintain your position now that you have children, or because your manager is fearful you will request to access flexible working conditions, then the case for your redundancy has not been made on legitimate grounds.

2. A genuine redundancy is not a means through which to replace an employee. The Parental Leave Rules stipulate that following parental leave you are entitled to return to the position you held prior to your leave. So if you believe your organisation is making you redundant so that the person who filled your position whilst you were on leave can remain in your position permanently than your redundancy is illegitimate.

3. If you believe your position is being made redundant within your organisation, but your employer is attempting terminate your employment in order to avoid paying redundancy entitlements then your termination is illegitimate and you should request to be made redundant and access the appropriate redundancy entitlements.

4. Where your redundancy is legitimate you should nonetheless be fully involved in the decision making process, even if you are on parental leave. This means that your employer should consult with you and provide you with the opportunity to explore other employment avenues within the organisation, such as adopting part-time working conditions, or moving to another role within the organisation.

5. If you are made redundant you should be given the correct amount of notice as stipulated in your award (this is normally about 4 weeks).

6. Finally if you are made redundant ensure that you receive all of the financial compensation that you are entitled to. Use the fair work redundancy calculator to check what you are entitled to: https://calculate.fairwork.gov.au/EndingEmployment

What to do if you think your redundancy was illegitimate

1. Speak to your HR department or a senior employer within your organisation. This discussion may shed some light on the reasons for why you were made redundant, or alternatively will give you the space to make a case for why your redundancy was made on illegitimate grounds.

2. If, following this discussion, you don’t feel as though the response from within your organisation was adequate you should lodge a complaint to the Fair Work Commission. You may also want to seek legal counsel. Please note that often situations like these are time sensitive, so it is important that you address this issue as soon as possible.

How to protect yourself against redundancy whilst on parental leave

1. Drive your handover, engage sponsors, and share your professional vision

Mitigation of redundancy is best set up before you head off on leave, and involves ensuring you have the right conversations with your manager, sponsor and parental leave replacement before you head off on leave. Make sure there is someone more senior than your manager watching out for you so you can dedicate your time to parenting. We have lost count of the number of clients who have been promoted while on parental leave by sharing their professional vision with their key stakeholders.

2. Fully utilise your ‘keeping in touch’ days. Whilst on parental leave all employees are entitled to 10 ‘keeping in touch days’. These days give you the opportunity to return to your workplace whilst on leave in order to stay connected with your organisation through attending key meetings, to discuss your return to work plans or to communicate your professional vision with your manager. New research shows that employees who stay connected while on leave are better able to manage their personal brand, as the strategy sends a message to your stakeholders that you have not lost your ambition. Of course, it also makes it easier to return to the workforce. Just make sure you set clear boundaries with respect to the way you would like to keep in touch.

2. See bias, cal it out. In some cases managers may be more likely to make employees on parental leave redundant, or at the very least reduce their responsibilities, as they assume that women will be less interested in career advancement, or even in maintaining a career at all, once having children. Make sure that you are tuned into these biases and call them out when you see them manifest in your workplace.

The Grace Papers programs guide you through each of these success strategies, step by step. And, we are always at the end of the phone to help you out if you need it.