THE Full Bench of the WA Industrial relations Commission has recently held that when an employee who is on parental leave is to be made redundant, then the employer is obliged to treat that employee in the same way as other employees working at the time.
The employee in question was an underground geotechnician for a mining company.
Her position was made redundant while she was on maternity leave.
On her return from maternity leave the employee was offered an alternative position with lesser status, differing responsibilities and overall lower remuneration.
The employee refused the offer of alternative employment.
The employer’s parental leave policy stated that on returning to work an employee would be returned to the position held immediately prior to proceeding on parental leave and if that position were to no longer exist, due to a restructuring of the work section, the employee’s manager would have to determine a position comparable in status and equal in pay to that of the employee’s former position, taking into consideration the employee’s qualifications and capabilities.
The Full Bench found that by not offering a job of comparable status equal in pay the employer was in breach of its parental leave policy.
It was quite clear, on the evidence, that the position offered would cause an overall loss in pay of about $7,000 per annum, which equated to a 12 per cent reduction.
The Full Bench also found that unfairness arose because a decision to make the employee’s position redundant was made at the same time as other redundancies of positions and the other employees in question were told that this was occurring at that point in time.
The employee, however, was not told until she rang her employer some weeks later.
The dismissal was therefore unfair.
The employer was found to be in breach of the requirement of section 41 and 42 of the Minimum Conditions of Employment Act (WA) for failing to have discussion to explore ways to lessen the impact of redundancy on the employee.
Carla Paratore, solicitor
9288 6940
Michael Jensen, associate
9288 6944