Dismissed after returning from parental leave: Is it unfair?

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker argued she was unfairly targeted for redundancy after returning from parental leave.

The worker alleged the timing of her dismissal was suspicious, coming shortly after she returned to work, and questioned whether proper redundancy processes were followed.

She claimed her duties were reassigned upon her return and that she was pressured to accept casual employment or face redundancy.

Early employment and parental leave period

The worker started with the employer, a major electronics company, in November 2016 as an admin officer before moving into a HR business partner role. She acted as hr & admin manager for a brief period in early 2023 before starting parental leave in April 2023.

While she was on leave, the employer hired two staff members to handle her workload. During this period, she was even nominated to participate in a management talent selection interview in June 2023.

After returning to work in December 2023, she found that some of her duties, including payroll responsibilities, had been reassigned to other colleagues. In early January 2024, the operations director suggested changing her role to casual employment.

The worker described this conversation in her evidence: "[The manager] proposed a transition to casual employment, which can only offer one or two days a week, due to a perceived lower workload, and threatened redundancy termination if I declined. I asked about the redundancy selection process, but I received no clear response."

The case revealed significant background about the employer's organisational structure. The Australian operations worked closely with its global headquarters in China's Shandong province.

The parent company only approved the Australian business plan for 2024 in December 2023, which included directions to reduce the local workforce to 120 employees.

The operations director gave evidence about implementing these changes: "We have a discussion about the whole business and the employees in each department and their role. So we try to formally make a role redundant if we think that they don't have forward role, we don't need it and can share it between other members."

Determining a redundant worker

The operations director assessed three HR business partners in mid-December 2023 using five criteria: recruitment experience, communication skill, English proficiency, work efficiency, and multi-task skills.

The worker scored lowest in recruitment experience, communication skill, and English proficiency.

The operations director explained the assessment: "In the daily work, I feel [the worker] was not intelligent, emotionally intelligent enough, or sometimes a little bit emotional when dealing with conflict, cannot express herself clearly and rationally, compared with the other two."

Consultation and redundancy process

The employer held several meetings with the worker in January 2024. On January 19, they formally notified her of the proposed restructure and offered her the option of either casual employment or redundancy.

The worker declined the casual position on January 23, stating in an email that there appeared to be "no legitimate reason for the redundancy" and that it did not align with "genuine redundancy criteria."

Following this, the employer confirmed her dismissal with four weeks' notice and a redundancy payment of 13 weeks' wages, plus accrued leave entitlements.

The Commission found the consultation process met the requirements under the Clerks - Private Sector Award 2020. The decision stated: "I am satisfied that notice, provision of information and discussion as soon as practicable took place. There were no matters of substance raised by [the worker], other than for her to say she was not interested in moving to a casual position."

Regarding the selection process, the Commission noted: "I accept that [the manager] had to make difficult decisions about three employees involved and, relevant to [the worker], that she gave a higher rating to the other two employees because of what she described as their native English skills."

The Commission ultimately concluded: "I am satisfied [the employer] considered the potential for redeployment of [the worker] into another position and in fact offered a casual position to her... I am satisfied that the position offered to [the worker] was the only one available to her within the company at that time."

The worker found new full-time employment in March 2024, with a higher salary than her previous position.