No Comments

Employment Law – Poor Response to Parental Leave

Employment Law – Background

A company was found to have taken adverse action against a pregnant employee and were ordered to pay $57,000 in compensation because they made her redundant just days before she took maternity leave.

Employment Law – Facts

In essence:

  • In 2015 the company decided to make several roles redundant as of November 12
  • However, they moved the redundancy date for a pregnant employee forward to two days before she took maternity leave
  • They believed moving the date was in her best interest
  • The employee claimed that she was dismissed because of her maternity leave

Employment Law – Decision

Judge Salvatore Vaster of the Federal Circuit Court:

  • found that the employer had taken adverse action against the employee
  • whilst noting the reasons for the redundancy were genuine, believed that moving the date of the employee’s redundancy amounted to changing her position to her prejudice, on the basis she did not have the chance to discuss the reasons for redundancy or contemplate other appropriate positions in the company
  • Continue reading…

No Comments

Employment Law – Adverse Action against Train Driver

Employment Law – Background

The Federal Circuit Court has determined that Australian Western Railroad took adverse action against a train driver when they cancelled his supervisor training after he refused to work a shift as a result of carer’s responsibilities and fatigue.

Employment Law – Facts

In essence:

  • the driver refused to work a “put-back shift” when a 3pm train he was rostered to drive was delayed by more than 3 hours
  • the driver claimed that he would be unable to work his shift because he would be fatigued, which was the result of his carer’s responsibilities. He argued that his absence should be recorded as carers leave
  • he argued that he had been primary caregiver of his children since 2011 due to compilations in his wife’s pregnancy which left her unable to care for the children
  • the driver claimed that he would be incapable of resting and his children would need to be cared for and would be making noise preventing him from resting
  • Continue reading…

No Comments

Q&A – Dismissal of employees whilst on leave

A common question raised by employers is whether an employee can be dismissed whilst the employee is absent on personal/carer’s leave or annual leave. The question is common because employees often retreat onto leave when the employment relationship becomes dysfunctional, due to stress arising from disciplinary action, or to delay their dismissal.

There is no universal statutory prohibition on dismissing employees who are absent on personal leave or annual leave. However there are significant risks for doing so.

General Protections risks

The ‘General Protections’ within the Fair Work Act 2009 make it unlawful to dismiss an employee because of the employee’s use of leave. Specifically, it is unlawful to dismiss an employee because he or she is ‘temporarily absent due to illness or injury’. A ‘temporary absence’ is defined as an absence lasting less than three months, supported by appropriate medical evidence. In addition, it is unlawful to dismiss an employee because of the employee’s physical or mental disability, family or carer’s responsibilities, pregnancy status, or religion. As a practical matter, these characteristics may require the employee to take personal/carer’s leave, annual leave, or parental leave from time to time. Any decision to dismiss an employee because of leave taken as a result of these characteristics will be in contravention of the General Protections.

Continue reading…