Worker made redundant day before maternity leave wins case
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed unfair dismissal after being made redundant the day before her planned maternity leave was due to start. The dismissal occurred on 24 September 2024, with the unfair dismissal application filed on 9 October 2024.
The worker argued that her redundancy wasn't genuine and was instead timed to avoid paying maternity leave entitlements. She pointed to several factors that raised questions about the legitimacy of the process, including the fact that she was the only person in her team made redundant despite strong performance records.
Her employer maintained that organisational restructuring necessitated staff reductions, with nine employees ultimately losing their positions through what they described as a proper consultation process.
The dispute began on 16 September 2024, when the general manager of the employer, sent an email to employees in the Field and Phone Sales department announcing a review of all positions. The email stated: "This review may affect some of our current employees, which may impact some positions."
The following day, the HR manager, sent the worker a letter advising that her position as Sales and Retentions Operator "has been identified as one that may be impacted" by the operational review. The letter mentioned that consultation would begin that week and a decision would be made by 24 September 2024.
A week later, the worker received a termination letter stating: "As a result of the Dept restructure the position of Sales and Retentions Operator is no longer needed. Regrettably this means your employment will terminate." This termination occurred in the security services industry.
The worker told the FWC that her redundancy came just one day before her planned maternity leave was due to begin. She had previously received four weeks' paid maternity leave for her two other children and expected the same arrangement.
She explained that in late August 2024, at 32 weeks pregnant, she discovered the employer had changed its maternity leave policy. When she asked about this, she said the human resources manager admitted withholding this information because "she did not want to give any negative news."
The worker also pointed out that since she was about to begin twelve months of maternity leave, "there was ample time for the company to find me an alternative role." She noted that after her dismissal, an employee from a different division who "did not have the sales skill set required, took on a role in the team I was made redundant from."
The worker stated that despite working part-time and closing accounts in her final month as instructed by management, she was still performing exceptionally well: "I was still outperforming other full-time sales employees while I was both working part time and not working for 80% of the time frame shown in this report."
The worker questioned the consultation process, stating she was made to attend a meeting on her day off while at a hospital appointment for her pregnancy. She contrasted this with other affected employees who were on leave but not required to attend consultation meetings.
The termination letter claimed the employer had "reviewed other opportunities within the business relevant to your skills," but the worker stated: "There was no discussion about options for my redeployment or an alternative for my position within the company."
The employer argued that the worker's job was eliminated due to operational changes, specifically mentioning "lack of volume of work and workplace productivity." They claimed that ultimately nine employees were made redundant following the consultation process.
The employer maintained that while the work functions were still needed, "the volume of work to be distributed to the various employees is not sufficient to sustain the employment of their role, or 8 others due to workplace change, however other employees still continue to fulfil such roles."
They also stated they had fulfilled consultation obligations under the Security Services Industry Award 2020 by notifying affected employees, meeting directly with the worker, and providing written information about the nature and effects of the changes.
In examining the evidence, the Commissioner noted it was "not in dispute that [the worker] was the only member of her 'team' that was made redundant, despite her being one of the best performers, if not the best performer, in that 'team'."
The Commissioner took into account that an existing employee was moved into the worker's department after her redundancy, and this replacement employee performed significantly worse than the worker had in the same role.
The Commissioner's conclusion was clear: "The provisions of the FW Act are specific. Section 389(1)(a) is not ambiguous. The simple fact that [the employer] appears to have replaced [the worker] with another employee in the team, via an internal transfer, shows that [the worker's] job was not redundant."
In dismissing the employer's jurisdictional objection, the Commissioner stated: "I am satisfied and find that [the employer] has failed to defend the proposition that [the worker's] termination was a genuine redundancy." This allowed the unfair dismissal application to proceed to a substantive hearing, with directions for the substantive application to be issued shortly.
