Employer argues company was downsizing
The Federal Circuit and Family Court of Australia (FCFCOA) recently dealt with a case involving a worker who argued he was terminated after exercising his workplace right to unpaid leave.
In its defence, the employer argued that it did not contravene the Fair Work Act as it did not take any adverse actions against the worker.
Prior to the case, the worker commenced employment with the company as a sales director on 16 November 2020.
The worker is in a same-sex relationship with his partner and they were married in 2021. That same year, the couple signed up for surrogacy agreements with two gestational carriers in the United States.
The couple’s first child was due to be born around January 2022 while the second was in March 2022 and it was agreed between the worker and his partner that the former would be the primary carer of the children.
Around November 2021, the worker said that he had a conversation with his supervisor in which he told him that he and his husband were expecting children and that after his return from annual leave over Christmas, he would be applying for parental leave.
When he returned from lunch the same day, the worker argued that he received a request for a meeting with his supervisor wherein he was handed a “Deed of Release.”
“[The worker] claims he would have submitted a formal parental leave request after communicating it verbally,” the case noted.
“He states he never said anything about resigning from [the company] and had no intention of resigning prior to his termination,” it added.
The worker further argued that because of his employment termination, he suffered humiliation and loss and had applied for three positions with other employers but had been unsuccessful.
Meanwhile, the employer contended that while it was aware that the worker had married his partner, it was not knowledgeable about the couple expecting the birth of their children in 2022.
The employer said that to apply for a period of parental leave, the worker would have been required to complete a leave request form with the anticipated start and finish dates of his leave. Yet, at no time during his employment did the worker apply for such.
With regards to the worker’s termination, the employer said that around late October 2021, it had decided to make the worker’s role redundant because of the companywide restructuring.
It argued that the company’s decision to terminate the worker’s employment did not include any reasons relating to the worker’s parental/care responsibilities.
Ultimately, the FCFCOA dismissed the worker’s claim that the employer took adverse actions against him because he attempted to exercise his workplace right to parental leave.
In its decision, the Court preferred the evidence put forward by the employer and noted that the worker was genuinely terminated for reasons of redundancy and not for seeking to access parental leave.
“The Court is satisfied [the company] was under some financial strain due to the pandemic,” it stated. “The Court accepts [the supervisor’s] evidence that the company was downsizing.”
However, the FCFCOA noted that the employer violated the Fair Work Act as no written notice, and only a verbal notification, was provided before the worker was terminated.
Hence, the Court said it will hear from the parties about the appropriate penalty to be imposed concerning such a contravention.
