A RECENT court case has highlighted the need for employers to be flexible in their approach to employees returning from paternity leave.
Unpaid parental leave entitlements stipulate that employees, other than casuals, are entitled to take up to 52 consecutive weeks of unpaid leave. This is conditional on the employee having completed at least 12 months’ continuous service with the employer, and having given a minimum of 10 weeks’ written notice.
Upon finishing parental leave an employee is entitled to the position they held immediately before starting the leave period.
However, if the position is not available, the employee is entitled to a suitable available position for which they are qualified.
In a recent case, a Federal magistrate found an employer had acted in a discriminatory manner by failing to make reasonable efforts to meet an employee’s request to work part-time on returning from paternity leave.
The court found the employer had available part-time work that needed to be done, which the employee was capable of under-taking.
According to Phillips Fox solicitor Katherine Eyre, the case illustrates the need for employers to be flexible and explore all of the employment options within an organisation so as to accommodate employees returning from paternity leave.
Ms Eyre said the case result also exemplified that, in order to lessen the incidence of such discrimination, individual employers needed to have – and abide by – adequate procedures and policies to deal with paternity leave.
While he agreed with these sentiments, Chamber of Commerce and Industry director industrial services Geoff Blyth said it also was important to recognise the hardships endured by many employers, who are required to abide by paternity leave laws.
“It is without a doubt more difficult for small businesses in WA to meet the obligations of current State paternity laws,” Mr Blyth said.
“When employees return from leave they may need to be re-trained, as the business practices can often change.
“There’s also the training of a suitable replacement to fill the position and this is a costly process, which many small businesses do not always have the resources to deal with.”
But Ms Eyres said most employers realised that paternity leave was a part of running a business.
“It is a fairly standard contract to fill an employee’s position, when they’re away and until they want to return, as long as it is within the required time limit,” she said.
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