Jump to content

Is this legal?
Redundancy after maternity leave


  • Please log in to reply
21 replies to this topic

#1 matt1972

Posted 07 December 2012 - 10:16 AM

My wife had our daughter in May and was in full time work up until late April.
She arranged with her employer to take the rest of the year off as maternity leave and return to work 2 days per week when the business reopened in January. All of this was agreed to by all parties at about the midstage of the pregnancy.
Today they had their meeting to discuss the return to work in January and she was told that she was being made redundant. She was given 6 weeks pay at her full time rate and that was that.

I don't think that either of us are particularly shocked by this but does my wife have any legal recourse?

The official line was that the position was made redundant which probably can't be disproved, I guess apart from the obvious the most frustrating part is that she organised a meeting about 4 weeks ago with them to discuss working remotely between September and January and there was no indication given during that meeting that they had this Christmas present in store for her.

Oh and she isn't in a union so that's not an option.

#2 Orangedrops

Posted 07 December 2012 - 10:21 AM

If her position has been made redundant then yes unfortunately it is legal.

#3 katpaws

Posted 07 December 2012 - 10:22 AM

I was made redundant while on maternity leave - yes it is legal as long as it is under the premise that the position no longer exists in the organisaton. It is a lovely loophole for businesses to remove women from the workplace.

If you think your wife has been discriminated against, contact your state Equal Opportunity oganisation. A google search (or the Federal human rights website) should bring up the legislation and guidelines.

If you are in Victoria, JobWatch are an excellent (but under resourced) organisation for help. If you look at their website there is some good information there.

As for entitlements, Fair Work Au or the employment contract should help.



#4 Mpjp is feral

Posted 07 December 2012 - 10:23 AM

What do you mean by legal recourse? What is it you want?

Unfortunately jobs DO get made redundant, and people do lose their jobs, despite best intentions at time of discussion.

On the 6 weeks payment - can you give more info about your wife's work contract (i.e. perm?), notice periods stipulated in her contract, what Award if any she workds under, is there an EBA in place and how long she'd worked there? There are national redundancy standards, and I wonder if they've been followed if this is all she got.

#5 Z-girls rock

Posted 07 December 2012 - 10:23 AM

I suggest making your enquiry to Fair Work Australia: contact details are on this webpage http://www.fwa.gov.au/index.cfm?pagename=headercontact

I called about a dismissal years and years ago and they were helpful with their advice.

#6 katpaws

Posted 07 December 2012 - 10:28 AM

Also, if you want to question what has happened, and make a complaint, etc, it is vital that your wife collect all documentation about her return to work and write up all recollections of meetings she had with her workplace (ie who attended, what was said, etc). It can be hard to prove as a women you were discriminated against due to pregnancy/maternity leave so you need as much evidence as possible.

If you want to take it further PM me. I have been through the process, however thas was before Fair Work Au ws set up.


ETA - re union membership, I was in a union and they did FA to help me, so don't let no union membership worry you. Job Watch helped me so much, they got me through a hard time.

Edited by katpaws, 07 December 2012 - 10:33 AM.


#7 Lucrezia Borgia

Posted 07 December 2012 - 10:30 AM

It happened to me when I returned to work after having my first son.....I went to an employment lawyer because, firstly, I was p*ssed off and secondly I thought it was a bit dodgy....I had requested to come back on a part time basis, which they agreed to. A month later I was effectively demoted, loss of status (lost my office, lost direct reports etc)... Then a few weeks later I was made redundant.....we queried the redundancy because a person was hired - full time- to effectively take my position. There was a whiff of discrimination about it...or so my lawyer argued. They also messed me around a bit with my redundancy payout.

To cut a long story short I got more money out of them.....I think it was worth it. If your wife has doubts tell her to see an employment lawyer...the fact that she's not in a union shouldn't matter...?

#8 lozoodle

Posted 07 December 2012 - 10:32 AM

Yes it is legal.

Legally there doesn't need to be an official agreement about the return to work until 4 weeks prior to return, and that is to be confirmed in writing.

#9 matt1972

Posted 07 December 2012 - 10:32 AM

QUOTE (meplainjanebrain @ 07/12/2012, 11:23 AM) <{POST_SNAPBACK}>
What is it you want?


The financial stability for the forseable future as offered and agreed to by her employer previously.

#10 katpaws

Posted 07 December 2012 - 10:44 AM

http://www.netlawman.com.au/info/pregnancy...k-australia.php

http://www.eowa.gov.au/Information_Centres...egnancy_PDF.pdf



#11 lozoodle

Posted 07 December 2012 - 10:51 AM

QUOTE (matt1972 @ 07/12/2012, 11:32 AM) <{POST_SNAPBACK}>
The financial stability for the forseable future as offered and agreed to by her employer previously.


Was there a signed agreement for this to occur?

Regardless of that, things change. Economic climates change and roles do get made redundant. If the role is truly no longer in existent, there is nothing illegal about it.

#12 Mpjp is feral

Posted 07 December 2012 - 10:57 AM

QUOTE (matt1972 @ 07/12/2012, 11:32 AM) <{POST_SNAPBACK}>
The financial stability for the forseable future as offered and agreed to by her employer previously.



As others have said - we need more information - as would Jobwatch (excellent resource) and FW if she is covered by them.

Was she the only retrenchment...what happened to her old job? If its a genuine redundancy, then it is legal...but I'd question the payment - if you can give the details then I could advise - or you could call the resources as mentioned above.

If its genuine, then as much as we'd all like financial stability - for many businesses they'd just love to provide it, but circumstances and conditions change, and it isnt always possible. I'm in HR have have just retrenched 8 lovely, well qualified, great performing staff, 3 weeks out from Xmas...because our business is losing money (so there was no work for them), and if it wasn't 8 before Xmas, it would be a whole lot more after Xmas. Unfortunately shareholders aren't very sympathetic to employees demanding financial stability! It's horrible in the extreme....but unfortnately it is sometimes necessary.

If the position has been replaced (as in the scenario described by several pp's in their own experiences) then it may not be genuine and may be considered discrimination, in which case she'd have recourse if she was able to prove discrimination based on carer responsibilities etc.

The other thing to remembere is that business don't HAVE to agree to part time or remote working conditions, if it doesn't suit the requirements of the business and role. They have to make reasonable accomodations, but there are some roles, that as much as an employer woudld like to offer part time, they are simplly unable to.

You just haven't given enough info for any advise other than speculation and pp's own experiences, which will have unique circumstances in each case.

Edited by meplainjanebrain, 07 December 2012 - 11:02 AM.


#13 Carabosse

Posted 07 December 2012 - 11:13 AM

i think it is only legally unstable if the position is not really redundant and they advertise for a replacement.
Meplainjanebrain has written some excellent points!



#14 CallMeFeral

Posted 07 December 2012 - 11:18 AM

I believe the 'redundancy' excuse gets rid of pretty much all employee rights. That's why in private companies, being 'permanent' does not mean much in terms of rights, only means that you have a certain notice period and monetary entitlements.
All they need to do is change the name of the position, write up the duties as somewhat different, and then rehire - that makes it legal.

#15 tothebeach

Posted 07 December 2012 - 11:22 AM

QUOTE
The financial stability for the forseable future as offered and agreed to by her employer previously.

Nobody in private enterprise has financial stability.  Any position can be made redundant.  Unfortunately, after dodging the GFC for a number of years, the economy is slowing.

#16 auntpriscilla

Posted 07 December 2012 - 11:24 AM

.

Edited by Willoughby Chase, 08 February 2013 - 02:13 PM.


#17 Lucrezia Borgia

Posted 07 December 2012 - 11:24 AM

QUOTE (CallMeAliG @ 07/12/2012, 12:18 PM) <{POST_SNAPBACK}>
I believe the 'redundancy' excuse gets rid of pretty much all employee rights. That's why in private companies, being 'permanent' does not mean much in terms of rights, only means that you have a certain notice period and monetary entitlements.
All they need to do is change the name of the position, write up the duties as somewhat different, and then rehire - that makes it legal.

Yes that's right....I query whether the majority of redundancies are in fact legitimate redundancies .....

...and they don't have to agree to a request to work part time...but having agreed to it, they can't discriminate against someone because of their part time status ....

Anyway, we don't know all the facts...but companies do get these things wrong, HR can act all touchy feely and hand out as many "employee assistance hotline" cards as they want...at the end of the day HR are there to protect the company, they are not the advocate for the employee in this situation...if the OPs wife thinks it is questionable then she should question it.....a well written letter from a lawyer can do wonders.....and if its unfair dismissal or discrimination then make the bastards pay.....

ETA....sorry, I'm still a bit touchy about my experience....

Edited by Lucretia Borgia, 07 December 2012 - 11:25 AM.


#18 Bunsen the feral

Posted 07 December 2012 - 11:27 AM

QUOTE (lozoodle @ 07/12/2012, 11:51 AM) <{POST_SNAPBACK}>
Was there a signed agreement for this to occur?


There doesn't need to be, if the employee is entitled to maternity leave her employer must hold their job for them. If the job is not available then it either has to be a legitimate redundancy or it is unfair dismissal - if it is unfair dismissal why wouldn't she expect compensation?

#19 Mpjp is feral

Posted 07 December 2012 - 11:37 AM

QUOTE (Lucretia Borgia @ 07/12/2012, 12:24 PM) <{POST_SNAPBACK}>
Anyway, we don't know all the facts...but companies do get these things wrong, HR can act all touchy feely and hand out as many "employee assistance hotline" cards as they want...at the end of the day HR are there to protect the company, they are not the advocate for the employee in this situation...if the OPs wife thinks it is questionable then she should question it.....a well written letter from a lawyer can do wonders.....and if its unfair dismissal or discrimination then make the bastards pay.....



I'm sorry you've had a poor experience, and I am certianly not saying it doesn't happen.

In regards to the bolded statement - what a lot of peopel don't understand is that YES HR most definitely ARE there to protect the company - and in my role as a HR Manager this means making sure that the company (and its managers/ decision makers) are playing by all the legal rules that are there to protect employees....because when they don't it puts the company at risk - financially, legally, in a reputation sense etc.

Much of the time these things coincide....protect the company by protecting employee rights....

And depending upon the structure of the company - sometimes HR can advocate for the employee (I cant tell you how many times I have done this when managers just want a 'problem' to go away)...but you'd never know it! But I do agree - as an HR person at the end of the day I am employeed by the company - not the individual.

#20 lozoodle

Posted 07 December 2012 - 11:40 AM

QUOTE (Bunsen @ 07/12/2012, 12:27 PM) <{POST_SNAPBACK}>
There doesn't need to be, if the employee is entitled to maternity leave her employer must hold their job for them. If the job is not available then it either has to be a legitimate redundancy or it is unfair dismissal - if it is unfair dismissal why wouldn't she expect compensation?

I realise that, but there is also provision for redundancy in that legislation (I work in a law firm).

But when there is a change in hours occuring, such as someone returning part time, it is confirmed in writing. Just as your commencement of parental leave is confirmed in writing.

They don't actually have to hold the same exact role if it doesn't exist anymore, though you are entitled to a role similar in remuneration and status if it exists.

Edited by lozoodle, 07 December 2012 - 11:41 AM.


#21 matt1972

Posted 07 December 2012 - 12:27 PM

Without trawling through all of the replies one by one here is the gist of what I know;

Someone was employed under a slightly different title as my wife went on maternity leave. The new employee was ostensibly a replacement for the role being left vacant. This person is still employed there.

The redundancy offered was 6 weeks at full pay plus 4 weeks notice. The term of employment ticked over 3 years in October.

The return to work on a part-time basis was agreed to in writing some time ago.

My wife isn't interested (nor would I be) in having her employment reinstated at this company.

Nobody else has been made redundant.

-------------------------------------------------------------------

After a few checks online it looks as though the "package" is legally correct so that will probably be the end of it. As PP's have stated unless the company is stupid enough to advertise for the exact same position within a certain amount of time there probably isn't any recourse.
Thanks for all the informative replies.

#22 MrsLexiK

Posted 07 December 2012 - 12:49 PM

QUOTE (lozoodle @ 07/12/2012, 11:51 AM) <{POST_SNAPBACK}>
Regardless of that, things change. Economic climates change and roles do get made redundant. If the role is truly no longer in existent, there is nothing illegal about it.

I know plenty of people who are being made redundant for legit reasons at this time.


QUOTE (meplainjanebrain @ 07/12/2012, 11:57 AM) <{POST_SNAPBACK}>
If its genuine, then as much as we'd all like financial stability - for many businesses they'd just love to provide it, but circumstances and conditions change, and it isnt always possible. I'm in HR have have just retrenched 8 lovely, well qualified, great performing staff, 3 weeks out from Xmas...because our business is losing money (so there was no work for them), and if it wasn't 8 before Xmas, it would be a whole lot more after Xmas. Unfortunately shareholders aren't very sympathetic to employees demanding financial stability! It's horrible in the extreme....but unfortnately it is sometimes necessary.

The other thing to remembere is that business don't HAVE to agree to part time or remote working conditions, if it doesn't suit the requirements of the business and role. They have to make reasonable accomodations, but there are some roles, that as much as an employer woudld like to offer part time, they are simplly unable to.

sad.gif that must have been hard for you, I remember when my mum has to retrench her first person she felt terrible.

I also agree with your second point.  I know my position can't be done part time - it just can't and job sharing would not work. It just would not.  I think the fact that I thought these things through and was upfront with my bosses made them have a huge sigh of relief.  I have told them I want to work part time but I get that I can't do that in my current job/business.  They are trying to find me a part time job within the industry still (the bigger companies you can work from home easily) I don't see all employers as horrible.

QUOTE (matt1972 @ 07/12/2012, 01:27 PM) <{POST_SNAPBACK}>
My wife isn't interested (nor would I be) in having her employment reinstated at this company.

Also just going back to my employment law study days.  I think the judgement is what they (the mag/etc) chooses.  ie reinstatement back into the job, or the correct payout.  If she has been given the correct payout I don't think you will end up getting what you want. (which I take it, is not her job back but compensation)




1 user(s) are reading this topic

0 members, 1 guests, 0 anonymous users

 

Funny Father's Day cards

A little fun never goes astray when celebrating special occasions and Father's Day is no different. We've rounded up some funny Father's day cards for your husbands, fathers and other important men in your lives.

Electronic tags may keep newborns safe

The possibility of using electronic bracelets for mothers and their newborn babies is being investigated by Adelaide's Women's and Children's Hospital. 

Baby steps: when your little one starts walking

As a parent there are so many milestones to look forward to. That first smile, first word - and, of course, that first step.

Julia Watson's new book 'Breakfast, School Run, Chemo'

Tomorrow my friend Julia launches her first book. And while we're all overjoyed, the success is tinged with sadness. You see, Julia has stage 4 bowel cancer.

How not to name twins

Call me boring, but I don't think that when it comes to choosing my twins' names is the right time to use a good pun.

Fun Sunny Life pool inflatables just for babies

The babies of 2015 will thus be thrilled to paddle their happy baby legs in these brand new flamingo and swan baby inflatables.

Baby and bulldog born on the same day are best friends

When Chicago mum Ivette Ivens saw a French bulldog puppy who had the same birthdate as her son Dilan, she "just knew it?s meant to be" and took him home. Five months later, puppy Farley and Dilan are the best of friends - as Ivens says, "I?m pretty sure Dilan thinks they?re both the same species, as they walk at the same level and are both going through the stage of chewing on everything.?

Breastfeeding basics for beginners

Here are 10 tips to help make breastfeeding successful and stress free for both you and your baby as quickly as possible.

Girl smothers baby brother with peanut butter

This mum had a big clean up job on her hands.

How to hide those under eye shadows

Pandas are the only ones who benefit from under-eye shadows. If you're not fluffy and cute, you'll just look tired.

Young mum dies after being denied pap smear

A mother has died after she was denied a pap smear because she was deemed "too young" to need it.

Birthday cakes banned at childcare centre

A childcare centre in Sydney has banned birthday cakes after parent complaints about excessive sugar and children with allergies being left out.

Triplet surprise for newlyweds

As the radiographer moved the wand over her abdomen, Shelley King got the surprise of her life.

3 yummy Thermomix baby and toddler recipes

Louise Fulton Keats shares her recipes for babies and toddlers, including corn and sweet pikelets, pumpkin and pea risotto, and cheesy bunny biscuits.

Man arrested over toddler Nikki's death

A 31-year-old man has been arrested over the death of two-year-old Nikki Francis-Coslovich in Mildura.

Adoption ban on pregnant women to be lifted

Pregnant women will no longer be barred from adoption waiting lists in NSW, after the Baird Government decided the practice was discriminatory.

Are you getting enough magnesium?

Magnesium is the fourth most abundant mineral in the body, but we don't talk enough about it and the vital role it plays in great health and energy, as well as disease prevention.

5 workplace lessons for new parents

Take heart in these principles that will transfer seamlessly from the workplace into your new life as a parent.

Mums to follow on Instagram

A creative outlet for many, there are some savvy women complementing their blogs and businesses with riveting Instagrams feeds. We've chosen a few which have bucketloads of appeal; there are some big time players and some smaller local ones, and they each bring their special brand of magic to the Instagram experience.

Review: The Volvo 2015 XC90 SUV has all the safety features your family needs

The new Volvo XC90 SUV's focus on keeping you safe does not come at the expense of comfort in the XC90.

Kim Kardashian reveals she may have hysterectomy

Kim Kardashian has revealed complications during pregnancy means she might have to have a hysterectomy after the birth of her second child.

Why late night snacks wreak havoc on weight loss

 Loath as you may be to admit it, chances are that at some point you have found yourself in the kitchen late at night, devouring food.

Toddler twins pretend to be asleep to fool mum

They say twins have a unique connection. If this cute clip is anything to go by, these toddler sisters like to use their special bond to try to fool their mother.

Dad bags: 10 picks for out and about

Getting out of the house is a big priority in the early years of parenthood and you need to take a well-stocked kit with you. We've chosen 10 of the best nappy bags sure to appeal to dads in style and function.

Win a Mountain Buggy Swift

To celebrate Essential Baby reaching half a million Facebook fans, we have a Mountain Buggy Swift to giveaway to a lucky fan.

Get your FREE Baby & Toddler Show ticket!

Get your free ticket to the Sydney Essential Baby & Toddler Show for September 25-27 - register online now.

 
Advertisement
 
Advertisement
 
 
 

What's hot on EB

Dads who do their share have more sex: study

For women trying to encourage their partners to take more interest in fatherhood, it could be the ultimate incentive.

Think you might have IBS, coeliac disease or Crohn's?

Conditions affecting the gastrointestinal tract are common in modern humans, and many are on the rise - including irritable bowel syndrome (IBS), inflammatory bowel disease (IBD) and coeliac disease.

Couple poses for newborn shoot with adorable puppy

Tired of being asked about their baby-making plans, Australian couple Matt and Abby decided to give a creative answer.

The exercises you know you should be doing (but probably aren't)

I bet your to-do list today is long. But somewhere on that massive list, are you making time for your pelvic floor?

This baby really loves the family cat

Some babies get excited when mum or dad come to get them from their cot after a nap.

Designer kids clothing good enough to eat by Oeuf

Even if you aren't heading to the Northern hemisphere in the next six months, you can't help but love the amazing food-themed knits for babies and kids by cult kids brand Oeuf.

Early exposure to peanuts recommended for allergy prevention

A paediatricians' group is recommending that infants at high risk of peanut allergies be given foods containing peanuts before they turn one.

Home brand foods contain less salt than pricier rivals

Supermarket home brand foods, long derided as cheap and inferior, contain far lower levels of salt than pricier, branded rivals, new research shows.

Nannies for hire, wherever you're flying

Ever dreaded the prospect of a long flight, dreaming about how wonderful it would be for a nanny to entertain the kids?

Couple poses for newborn shoot with adorable puppy

Tired of being asked about their baby-making plans, Australian couple Matt and Abby decided to give a creative answer: with an unusual photo shoot with their 'baby', a groodle (poodle/golden retriever cross) named Humphrey. The talented Elisha from Elisha Minnette Photography caught all the precious shots.

Is it okay to name your baby with a sense of humour?

My husband was sure that Danger was a good option for a boy. And as the pregnancy progressed, it actually started to sound really good.

Woman gives birth after having her own mother's uterus transplanted

In a world first, a healthy baby has been born from the same womb that nurtured his own mother.

So hot right now: double-barrelled baby names on the rise

It's one way to make your baby stand out from the pack – giving them not one, but two first names.

Second time around: is it really better the devil you know?

When I fell pregnant with my second child I was, naturally, very excited. Then it all started to come back to me - and I freaked.

Shopping with kids: breaking the pester-power cycle

You're out shopping with your little one and they're incessantly whining that they want a treat. It's easy to say no ... the first time, at least.

How did we have babies before apps came along?

Three months ago, my wife, Chrysta, and I were driving along Melrose Avenue in Los Angeles when she let out a harrowing cry.

When your toddler disagrees

There comes a time when your child starts having different views to you. I didn't realise that time would come so soon.

Win a Pacapod this Father's Day

To celebrate dads and families, we are giving away a Picos Pack from Pacapod Australia filled with a few extra goodies ENTER NOW

 

FREE TICKET

Discover the magic of the LEGOŽ DUPLOŽ Play Area in Sydney

Get your free ticket to The Essential Baby & Toddler Show and save $20 - register online now!

 
Advertisement
 
 
Essential Baby and Essential Kids is the place to find parenting information and parenting support relating to conception, pregnancy, birth, babies, toddlers, kids, maternity, family budgeting, family travel, nutrition and wellbeing, family entertainment, kids entertainment, tips for the family home, child-friendly recipes and parenting. Try our pregnancy due date calculator to determine your due date, or our ovulation calculator to predict ovulation and your fertile period. Our pregnancy week by week guide shows your baby's stages of development. Access our very active mum's discussion groups in the Essential Baby forums or the Essential Kids forums to talk to mums about conception, pregnancy, birth, babies, toddlers, kids and parenting lifestyle. Essential Baby also offers a baby names database of more than 22,000 baby names, popular baby names, boys' names, girls' names and baby names advice in our baby names forum. Essential Kids features a range of free printable worksheets for kids from preschool years through to primary school years. For the latest baby clothes, maternity clothes, maternity accessories, toddler products, kids toys and kids clothing, breastfeeding and other parenting resources, check out Essential Baby and Essential Kids.