Can you fire someone on parental leave?

Few HR professionals would relish the thought of firing someone on parental leave but certain situations might leave them with little other choice – here, one industry lawyer explains how employers can be sure their dismissal doesn’t breach employment law.

“An employer can dismiss someone on parental leave, or during the 26 week period of preference, if a redundancy situation arose after that employee had been told their position would be kept open,” says Rebecca Rendle, a senior associate with Simpson Grierson’s employment law group.

“The redundancy situation must be of such a nature that there is no prospect of the employer appointing the employee to a substantially similar position,” she continues. “The employer must also not have prejudicially affected the employee's seniority or superannuation rights during the employee's parental leave before the termination of their employment.”

As with any other redundancy, employers must prove there is a genuine business reason and a fair process must be followed – including consultation and an opportunity for feedback. 

However, Rendle warns that case law has determined that a higher threshold must be met in order to justify a redundancy when an employee is on parental leave.

“This is because these employees are in a vulnerable position, not being in the workplace,” Rendle explains. “If other employees take over their duties in their absence, an employer may decide that there is no longer any need for their position.”

According to Rendle, the higher threshold is in place to provide an even playing field for employees whose absence would render them unable to demonstrate the importance of their position.

Finally, Rendle says any redundancy must have arisen after the employee went on parental leave.

“If an employer has flagged restructuring or potential changes to improve efficiency before it has notified the employee that their position will be kept open, the employer cannot rely on this redundancy exception to the prohibition on dismissal during parental leave,” she tells HRD.

However, if an employer wishes to dismiss an employee for a substantial reason, the normal provisions relating to dismissal under the Employment Relations Act would apply, says Rendle.

“There must be substantive justification for the dismissal, as well as procedural justification,” she stresses. “The employer must act as a fair and reasonable employer could act.  If an employee is on parental leave, then the employer should appreciate that the employee's ability to attend disciplinary meetings may be more limited.”