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Maternity Leave Question.

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21 replies to this topic

#1 Dettol

Posted 23 February 2012 - 12:56 PM

I have just been informed that my position will not be available for me if I wish to return from maternity leave.  Was a little taken back and said that I would be issuing the minimum 10 weeks written notice to them with my return to work date and said that it would need to be something that they would need to sort out in 12 months time.

I know they are not allowed to say that but they have.  Where on earth do I go from here?  Ignore it and if I want to return to work in 12 months time, just rock back up for my job in 12 months time and then tackle it then?

#2 Futureself

Posted 23 February 2012 - 01:03 PM

Who was it that said this? Your manager?
I would be going straight to the HR department and sitting down with them. They have to keep a position for you providing you're a permanent employee who has satisfied their length of service. It may not be exactly the same position, I understand they can offer you another at the same level if your current one has changed or is defunct on your return.
I wouldn't wait, I'd want it sorted before I went on leave!

#3 Dettol

Posted 23 February 2012 - 01:06 PM

The owner.  There is no HR department.

#4 Futureself

Posted 23 February 2012 - 01:08 PM

Are they saying that you can't come back at all so are terminating you? Or are they saying that they'll definitely have a position fro you at the same pay etc but it may not be the one you have now?

#5 bbunny

Posted 23 February 2012 - 01:09 PM

I think they're obligated to give you something equivalent or make you redundant if appropriate. But they can do that in 12 months when you return to work, so there is not much you can do about it now. Companies are not required to give you any guarantees on positions while you are away. So much can change.

But maybe you can contact the fairwork Ombudsman to find out your rights.

#6 Futureself

Posted 23 February 2012 - 01:13 PM

Agree with contacting Fair Work

Something seems really off OP, especially if they're wording it as 'if you go and want to come back there won't be a job for you'

#7 Kucingcantik

Posted 23 February 2012 - 01:29 PM

First of all, have you been working for them for 12 months, or will you have been when you go on maternity leave?

If so, and they are saying you won't have a job after you take leave, definitely illegal and I would be lodging a complaint with FWO.

If you have been there less than 12 months, unfortunately they have no obligation to hold your job for you.

But, as other PP's said, first step is to contact FWO for them to explain your rights to you.

#8 Jocelyn_expecting

Posted 23 February 2012 - 01:32 PM

Hi OP,

Check out this reference from Industrial Relations. It is packed with info!


Sounds like you'll have to contact Fair Work. What they are doing is illegal!!  mad.gif

#9 Dettol

Posted 23 February 2012 - 01:47 PM

I am well and truly entitled to it.  Have spoken to fair work, they are not allowed to do it.  If I lodge a claim they will send a resolution person in to sort it out.  They have to guarantee my position back if it is still available in its current form.

Just have to work out when to lodge complaint and then wait for it to hit the fan I suppose. sad.gif

#10 Futureself

Posted 23 February 2012 - 01:53 PM

That's awful OP, I'm sorry that you're having to deal with a dodgy workplace trying to pull a swifty.
Did fairwork advise you to sort it now? I know I wouldn't want to wait - if I was going back it would be because we needed the $ to start coming in. I'd hate to then have to wait while they sorted themselves out and fought it etc. and be stuck in the meantime.

#11 Chief Pancake Make

Posted 23 February 2012 - 01:56 PM

They are allowed to make you redundant and if you are on a contract that will end before you come back they are under no obligation to renew it.

#12 tothebeach

Posted 23 February 2012 - 01:57 PM

I have just been informed that my position will not be available for me if I wish to return from maternity leave.

I used to work for a big corporate and this happens all the time.  they have to find you something equivalent when come back.

#13 Dettol

Posted 23 February 2012 - 02:03 PM

They were happy to do it when ever I wanted them too.  I dont have much longer to go before I start leave.   Might be easier to wait until I am not here and then let them fight it out over the coming months and then I dont have to deal with the fall out.

Its not going to make for a comfortable workplace if I start the ball rolling before I leave.

I know they have to give me a) my job back or b) the equivalalent if its no longer available.  Thats the problem they have told me there will be NO full time position available unless my replacement does not work out.

Edited by Dettol, 23 February 2012 - 02:06 PM.

#14 frogcal

Posted 23 February 2012 - 02:10 PM

You are better off to pursue it now, so that they are aware of their obligations and that your replacement should be put on a limited tenure to cover your leave only. That way your position is available when you return as your replacement is fully aware that their position is temporary only. They cannot make you redundant on the premise that they are hiring someone else to fill your role.

#15 Dettol

Posted 23 February 2012 - 02:12 PM

They have already hired my replacement and told her it is not a maternity leave position.  So its a bit late for that.

#16 2bellaboos

Posted 23 February 2012 - 02:12 PM

Good on you for contacting FWA. Just wanted to add if it hasn't already been covered, if your role does not exist upon your reuturn, you are entiteld to a redundancy payment if there are no other suitable jobs of equal (or similar) pay and stature.

#17 Turtlerunner

Posted 23 February 2012 - 02:14 PM

I would lodge now - it takes a while for FW to actually do their bit and therefore if you don't have long to go fairwork prob wont start investigating till you have gone, also your employer needs to know you are on Matt leave and have the option to come back - and not just left the business.  Are you claiming the fortnightlyCentrelink  Baby Bonus - if you are your employer should be processing it through the payroll.
Also - your work place needs to be made of the rules - so many dodgy business owners / managers that don't know the rules or care about them.

#18 Kucingcantik

Posted 23 February 2012 - 02:15 PM

I agree with you that you should put in a complaint to FWO after you go on maternity leave. Until they have terminated your employment, technically they have not yet broken the law, just threatened to do so. If  they fire you beforeh you take your leave, you can investigate lodging an unfair dismissal complaint but it is a bit harder than lodging a complaint through FWO for them failing to comply with maternity leave entitlements.

It will also make it a lot easier on you if you are not having to deal with them everyday after making a complaint, especially when you are pregnant  -you don't need the stress of that!

#19 Kucingcantik

Posted 23 February 2012 - 02:19 PM

Also just wanted to add: have you given them the written notice for taking maternity leave yet? If not I would write to them stating that you want to take parental leave pursuant to the Fair Work Act section 70, from X date until X date.

I would then request that any response to that notice be given in writing, and if they want any meetings, that you bring a witness with you, and record all conversations you have with them in writing as soon as possible after they occur. If they are this dodgy to try to fire you for taking maternity leave, they will almost certainly lie about it, and you need to have those records to help protect you.

#20 Dettol

Posted 23 February 2012 - 03:07 PM

I have given them notice that I will be taking leave and taking 12 months leave with my return to work date on the letter.

Will be doing no more sit down chats without a witness, either in writing or through fair work from now on.

#21 laurs

Posted 23 February 2012 - 03:17 PM

Is there any chance they don't understand their legal obligations? If you want to continue working there it would be in your interests to stay on good terms with them and reporting them is likely to make things uncomfortable.

I would be diplomatically letting them know what the law says. If they still maintain their stance, then absolutely go ahead and lodge a complaint with fair work.

#22 Dettol

Posted 23 February 2012 - 07:04 PM

They know the law.

As of this evening  all diplomacy has gone out of the window I am afraid.  I am upset and disappointed to say the least.

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