The operators of a gourmet fast food distribution business in Perth have found themselves in a bit of a pickle after allegedly discriminating against a sales executive who had fallen pregnant with her first child.
Allegedly, the business commenced unwarranted performance-management processes against the female employee prior to her taking parental leave, denied her the lawful right to return to work and invoked a constructive dismissal after presenting her with a pre-written resignation letter. The Fair Work Ombudsman has commenced proceedings in the Federal court against the company and its director personally, seeking the imposition of penalties as well as compensation to the employee.
This is just the latest example of the FWO taking action against unscrupulous employers for violating the National Employment Standards contained within the Fair Work Act. Discount retail stores, aged care facilities, child care centres and a printing business have all been successfully prosecuted for unfair treatment of pregnant employees.
Importantly, the Fair Work Ombudsman is increasingly using the accessorial liability provision of the Fair Work Act to go after those involved in the workplace breach, not just the company itself. Company Directors, General Managers and Payroll Officers are all exposed to the risk of hefty penalties should their business be found to be non-compliant.
Ensure that you know your parental leave obligations!
The Fair Work Act requires:
- An employee may take 12 months of unpaid parental leave providing they have completed at least 12 months of continuous service.
- Casual employees must have a reasonable expectation of continuing employment on a regular basis.
- After parental leave, the employee has the right to return to their pre-parental leave position.
- If that position no longer exists, they have the right to return to an alternatively available position that is nearest in status and pay to their pre-parental leave position.
- After parental leave, employers have an obligation under the Fair Work Act to consider request for a flexible work arrangement and provide a written response within 21 days. The request can be refused, but only on reasonable business grounds including
- the new working arrangements would be too costly; or
- there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements; or
- the new working arrangements would result in a significant loss in efficiency or productivity.
For more information on the recommendations and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.