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Roubler FAQ

A case on Maternity Leave

We have had an employee go on Maternity Leave in August 2012 (and extend the period) until March 2013. She has requested to return to employment on a part time basis. We have been able to facilitate this request (on a short term, 3-6 month basis) but only in a different role within the team (different duties but at the same level and salary band). The employee is happy with this arrangement as obviously it gives her the opportunity to come back on a part time basis. We currently have a Fixed Term Contractor performing the employee’s old role.

Are we able to stipulate that we can only facilitate part time for a short period of time and then mandate that the employee has to return to full time work? If the employee doesn’t want to return to full time work after that period, would they be eligible for redundancy?

We would like to make the contractor performing in the employee’s old role permanent, but if the mat leaver does return to full time employment (3-6 months down the track), do they have the right to ask for their old role back at that time?

 

Unfortunately, there is no black or white answer to the query which you have asked and employers in this situation

should seek a professional legal opinion as to the best course of action to take. With this in mind, the following general points can be made: The question of whether you can request the employee to resume full-time work depends on the basis on which you offered the employee part-time work. Was it a permanent variation to the employee’s role and employment contract? If so, you cannot unilaterally change the basis for employment back to full-time. If you no longer required the part-time role it is a redundancy situation.

If the basis for the employee going part-time was under a flexible working arrangement, then you can end the arrangement on reasonable business grounds. If the employee declines to resume full-time work then it is treated as a resignation. The temporary employee’s rights depend on what was communicated to the employee and the arrangement made when they started the temporary assignment.

What constitutes “reasonable business grounds” is not specifically defined in the FW Act, however section 65(5A) of the FW Act provides some examples. Additionally, the Fair Work Ombudsman’s webpage on Flexible Working Arrangements, offers some guidance on this point. If you did decide that you wanted to refuse to accommodate the request, you would need to justify this decision. Accordingly, you will need to provide written advice to your employee (including reasons for the refusal) within 21 days.

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