Many of my clients are successful women in media who have found themselves in disputes with their employer through no fault of their own, simply because they take time off when they have a baby, which of course they are lawfully entitled to do.
An employee has a right to take parental leave, and it is important to know your rights and protections when you do, and how best to assert them.
Some of those protections are set out below, along with some tips for ensuring that your next period of parental leave is smooth sailing.
1. The Basics – what to expect when you’re expecting.
An employee (both female and male) is entitled to 12 months unpaid parental leave under the Fair Work Act 2009 (Cth) if:
a. The leave is associated with the birth of a child of the employee or their spouse or de facto partner, or the placement of a child with the employee for adoption;
b. The employee has or will have responsibility for the care of the child; and
c. The employee has, or will have, completed at least 12 months of continuous service with the employer immediately prior to the date of birth, expected date of birth or day of placement if adopting (special rules apply for casuals).
Note that the unpaid parental leave provisions of the Fair Work Act are separate to the Commonwealth Government’s Paid Parental Leave Scheme, and any paid parental leave policy that your employer may have.
2. Remember your own obligations when it comes to unpaid parental leave
An employee also has obligations under the Fair Work Act when it comes to taking parental leave, which are actually surprisingly strict. It is important to comply with them; while many employers won’t take an employee to task for failing to comply, if a dispute arises while an employee is away on leave, employers have been known to rely on non-compliance to allege that the employee was never even on approved parental leave, and therefore not entitled to the Fair Work Act’s protections.
An employee taking parental leave must do the following when taking parental leave:
a. Give their employer written notice of the taking of parental leave, which must:
i. Be given at least 10 weeks before starting the leave, or if that is not practicable, as soon as practicable (which may be a time after the leave has started); and
ii. Specify the intended start and end dates of the leave.
b. Confirm the intended start dates and end dates of the leave, or advise of any changes to the intended start and end dates of the leave, at least 4 weeks before the intended start date specified in the notice unless it is not practicable to do so.
There are special rules where a couple employed by the same employer take leave at the same time. There are also rules requiring the provision of evidence (for example, a medical certificate) if requested by the employer.
3. Return to Work Guarantee
The Fair Work Act contains the Return to Work Guarantee. It is intended as a safety net for employees taking parental leave, and provides that, upon ending the parental leave, an employee is entitled to return to:
a. Their pre-parental leave position; or
b. If that position no longer exists, an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.
The Guarantee means that an employer cannot permanently fill your position while you’re away on parental leave, leaving you without a job. Further, if your position becomes redundant while you’re away, the employer is required by the legislation to return you to an available position for which you are qualified and suited, and which is nearest in status and pay to your old job.
Sometimes while an employee is away on parental leave and their position becomes redundant, there will be no other jobs available and therefore the employee may be terminated anyway. Often however an employer will simply boldly assert that there are no other jobs available, or only offer jobs which they know the employee will not accept. If this happens to you, you should promptly seek legal advice, as you only have 21 days from the date of termination to bring the appropriate claim.
4. Keep in touch – and look out for warning signs!
There is no obligation to do so, but in my experience problems often arise when there is a complete lack of communication between an employee and employer during the parental leave period. I have encountered circumstances where employers say they had assumed (wrongly) that an employee did not intend to return to work at all because they had not heard anything from the employee. I have similarly had cases where the employer failed to consult with the employee prior to making workplace changes, because of unwarranted (sexist and discriminatory) assumptions made about what the parent would and would not be prepared to do upon their return to work.
Such occurrences are more common than they should be, but can often be avoided by taking steps to stay in touch.
Note also that the Fair Work Act provides for keeping in touch days, which allow an employee, with the consent of her employer, to perform work without breaking the period of parental leave. The employee is of course required to be paid by the employer for their work.
5. Keep detailed notes
If you do have contact with your employer during your parental leave, make sure you keep accurate, contemporaneous file notes of all conversations concerning your position and pending return to work, especially if in those conversations you sense a disturbance in the Force. In some circumstances and jurisdictions, it is even lawful to record your conversations, provided you are doing so as a principal to the conversation, in order to protect your lawful interests.
If things go south and you find yourself in litigation with your employer, you (and your lawyer) will be greatly assisted by your notes of who said what in key conversations. Memory doesn’t improve with time. You don’t want to be trying to remember what was said several months ago when you’re in the lawyer’s office providing instructions.
Also, email your employer after those conversations confirming what they just said. In this way you not only clarify what just occurred, you also create a contemporaneous paper trail, that will more likely than not be seen by a Judge as reliable corroboration of your version of events, in the face of the employer’s competing and inevitable denials. Some lawyers may even assist in ghostwriting the email for you if asked nicely.
Those notes and emails can quickly form the basis for relevant conversations deposed to in your affidavit if litigation follows. The Llewellyn affidavit was such a potent and effective weapon and one that was quickly compiled, primarily because Mark Llewellyn kept such meticulous notes of key meetings, that there was no doubting its force and truth!
In summary, don’t delay
Regrettably, some employers (even very well known ones) still do breach their obligations regarding parental leave, such as the Return to Work Guarantee. When they do, a variety of different claims may be available. This is particularly the case for women in the media, who may be moved out of their profile position while they are on leave for unlawful reasons. Claims can be brought in the Fair Work Commission, or Australian Human Rights Commission for discrimination on the basis of sex, age, and parental/family responsibilities.
Remember, it is important to promptly seek legal advice when things go bad, because the limitation period for bringing a claim can be as low as 21 days, a period that is rarely extended.
The author is John Laxon, Principal of Laxon Lex Lawyers, with acknowledgement to Sam Lavery for his assistance in preparing this paper.