The permanent part-time HR manager commenced employment in September 2021. Two months later, she informed the firm’s partners that she needed to take a period of leave due to the impacts of her complicated pregnancy.

The firm verbally agreed that the HR manager could take six months off before requesting a formal maternity leave plan.

Following this verbal agreement, the HR manager informed the firm that she would be induced in March 2022 and that her child would require surgery. The firm requested that the employee put her intentions surrounding her working arrangements moving forward in writing.

The HR manager requested 12 months of unpaid parental leave. However, she didn’t meet the pre-requisites to be entitled to it under the National Employment Standards (NES).

The employer communicated that approving the leave request would be in contravention of the firm’s parental leave policy and emphasised the importance of consistency in the HR manager role. It concluded that the HR manager position needed to be filled on a permanent basis without a temporary cover for 12 months.

The HR manager raised her concerns; the firm reiterated that her leave request had been declined and that she had the option to resign if she was unhappy with the outcome.

The HR manager understood that if she did not resign, her position would be terminated, and the firm would recruit a permanent replacement.

As a result, the HR manager wrote to the firm on 8 March 2022 ‘accepting’ her ‘totally unacceptable’ termination of employment. In this letter, she indicated that ‘giving birth is not resigning’ and ‘I have never had any intention to resign’.

The HR manager filed a general protections application with the FWC.

On 4 April 2022, the firm sent her a letter stating that despite the leave application being declined, the HR manager had failed to attend work since or communicated otherwise. As a result, by going on unauthorised leave and not returning, it reflected her intentions of not being bound by the terms of her employment, and therefore her employment was at an end.

Decision

Ultimately, the HR manager’s application reflected that her dismissal was based on pregnancy discrimination. The judge disagreed with her argument which suggested that the firm did not attempt to find an alternative option to the proposed 12 months of unpaid parental leave.

The court held the HR manager only made one request of 12 months of unpaid parental leave and offered no alternative proposals or requests.

Therefore, not being in a position to continue with her employment forced the HR manager to resign.

The HR manager had the option to either resign or remain in employment. She could have accessed other leave entitlements she had accrued or come to an agreement with the firm as to what could be accommodated.

The firm was under no legal obligation to grant the HR manager 12 months of unpaid parental leave as requested. As a result, the court delivered a judgment in favour of the employer.

Learnings for business

It is important for businesses to be aware of parental leave entitlements as reflected in the NES.

As discussed, not all employees are entitled to the full 12 months of unpaid parental leave. Therefore, it is important to communicate with employees and come to an agreement as to what period of leave suits their needs and the operations of the business. All leave requests made are by agreement between the employer and the employee.

How the Victorian Chamber can assist

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

Workplace Relations Advice Line

Trying to deal with workplace issues alone but don’t know where to start? Before you take any action, call our Workplace Relations Advice Line.

Our experienced team are here to give you over-the-phone advice about human resources or workplace relations issues. Our Complete and Connect members have free and unlimited access to expert advice through the Workplace Relations Advice Line.

Fair Work representation

Managing claims in the Fair Work Commission (FWC) can be one of the most stressful and costly issues for your business. With help from our Workplace Relations consultants, you can rest assured our expertise is on your side.

Employment Termination

It is important to manage the termination of an employment relationship carefully to ensure you meet your legislative obligations, regardless of whether the employment contract is terminated by the employer or employee.

Wages and Entitlements

Is your business paying its employees correctly? When it comes to wages, awards and entitlements, ensure that your business complies with the law with professional support from our Workplace Relations Advice Line and consultants.