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Is this legal?
Redundancy after maternity leave


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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 Herebedragons

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)




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