Thursday, 9 June 2016

Congratulations on the new baby... oh and here is your redundancy pay...

I read a post by the Australian Human Rights Commission here which stated that 1 in 5 mothers lose their job during pregnancy, parental leave or upon returning to work.


1 in 5 

I was, to say the least, intrigued (and a little horrified).

Could that really be true? How would they even know that statistic? 
Photo via Visualhunt

Then I had Maria* contact me and her message was a little like this:

Is there anything I can do when I'm told my role has been made redundant after returning from maternity leave?

"My company is going through quite a large restructure at the moment so there are a lot of jobs being made redundant. I have just returned from maternity leave to be advised my role is being made redundant. Other similar roles are being kept.

The end date they have given me, means that I will not receive any pro rata long service leave as it is a week short of my five year service date.  I feel like I am being pushed out."

Maria and I had an online conversation and my advice was for her to ask:
  • for the criteria used to deem her role redundant
  • request that her end date be changed to be able to fall after the 5 years service date
  • talk with her employer about possible redeployment opportunities
I also asked her if she felt there was any discriminatory reasoning for the redundancy (i.e. based on caring responsibilities, parental leave)

Her Company had advised her they would not provide any criteria for the redundancy in writing, only verbally. They declined her request to change the end date and although she was able to be redeployed into any alternative positions, if she applied for them, there were currently no positions available. Maria did feel like she was being discriminated against, but had no evidence to support her belief.

Redundancy criteria

Unfortunately if the Company is unwilling to give reasons around the criteria for redundancy in writing, the only way to get this is by lodging a claim and Fair Work may compel them to provide it in order to substantiate the reasons for the redundancy.

The payment of the pro-rata Long Service Leave is also not applicable until 5 years service has elapsed, and seeing that the Company gave an end date prior to that, she would not receive this payment.

As she had already had discussions with the organisation and wasn't able to get more information on the reasons for her redundancy, or consideration of her end date, I advised her to Maria consider engaging a lawyer. The lawyer will ask for more information and assess the situation, but there are two ways it may go. 

Unfair Dismissal or General Protections Claim

One option is to lodge an unfair dismissal case, the other is for a general protections claim (adverse action) .
The main difference is that a general protections claim is that there is a reverse onus of proof which means the organisation must show that the redundancy was in no way related to her parental leave / carer responsibilities. 
Additionally, the potential compensation for a general protections claim is not capped, whereas unfair dismissal is capped at 6 months salary. You also need to be earning under the 
unfair dismissal threshold (currently $136,700 p.a.) to make an unfair dismissal claim.

The first step with making a claim is a conference (often by telephone), and if not resolved, then it can go forward to arbitration by the commissioner, or a new application can be made to the Federal Circuit Court or the Federal Court. 

The court has the power to:
  • issue a fine
  • make an order for reinstatement
  • make an order awarding compensation for loss
  • grant an injunction or interim injunction
  • award costs.
It is possible for Maria that at the conference stage, the lawyer could negotiate a settlement which may be an ex-gratia amount equal to the pro rata Long Service Leave. If the lawyer has a 'no win no fee' option, this is probably worth doing, even just for that LSL amount.
Although Maria could push for reinstatement, as the organisation is going through a very large restructure, her job security may be short lived.

Looking to the future

This is a really stressful time, and Companies going through restructures typically provide employee assistance programs and outplacement programs, so I also advised Maria to make use of these for the period they are available.

Maria is in the process of consulting a lawyer who specialises in workplace law at the moment.

This isn't a story with a very happy ending yet, so perhaps the statistic given by the Australian Human Rights Commission is correct.

What do you think? Have you been made redundant while pregnant, on parental leave, or when returning to work?

Whether you are an employee or run your own business, you can share your story on Savvy Business Women, our Facebook group dedicated to information, collaboration and support for Business Women.

*Maria is not her real name, and I have also altered some of the information to protect her privacy. She has consented to me using her example as a blog post to hopefully assist others.

No comments:

Post a Comment

Related Posts Plugin for WordPress, Blogger...