NSW Redundancy During Maternity Leave - Legal?

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28 August 2015
I have surprisingly been told by my employer on the cusp of my return to work that they don't believe my job exists anymore. I have been off for 6 months and during this time they have restructured slightly and made new roles in the team which have taken on my duties.

When I left at end of Jan, I was told there were going to be some changes which had been in the works for a while however they were looking forward to having me back. I then heard nothing for about 5 months and then was requested to have a catch up when they told me they just didn't believe my job existed anymore and could I think of anything?

We then had a second and then third meeting where they said the only role available to me is quite junior, half my salary and used to report to me. While it makes me sad that I won't be returning, what is really getting me riled up is the lack of following proper process on their side (i.e. no consultation during their decision making process) as well as a feeling that they used my maternity leave to restructure and they were planning this for quite some time.

They have offered me a redundancy package which is just a little above entitlement and I want to negotiate for more. I was thinking asking for 6 month salary including superannuation, and would back this up by saying they would have known this redundancy would need to take place over 6 months ago which is lost time to me. I was also planning on saying that it would take me at least 6 months to find work.

I don't know if this is asking for too much or too little versus what I potentially could be awarded if I won an unfair dismissal claim. How would a lawyer go about negotiating something like this? Do I have a good/ strong case?

Regarding Fair Work Australia - how long does a claim take? What does it cost? Likelihood that I would win? Could I expect to get a considerably more money via fair work or by negotiating directly?

What are the exact consultation requirements that they should have followed?

Any other options?


Hi Bcs20155,

It is legal for an employer to make an employee redundant while they are on parental leave, as long as the employer gives them the correct notice period and pays out any entitlements including redundancy pay.

However, there is usually a consultation process for major workplace changes. Employers are generally required to talk to an employee that is on parental leave at the time the decision is made to make a significant change to the workplace that will affect their job. As long as the selection criteria applied to determine which position is selected for redundancy are objective, and the redundancy meets operational requirements of the enterprise, any redundancy would be valid and not unlawful dismissal.

While an employee who is dismissed only due to their being absent on parental leave could seek relief under unfair dismissal laws, an employer that can point to other commercial factors that resulted in the redundancy will not be liable. A 2013 case involving an employer who was faced with a need to reduce costs, allocated tasks that had formerly been those of the employee who was on parental leave to other employees, rendering her old position obsolete. The court found in that case that the employee's parental leave or absence from work was not the reason for her redundancy, rather her job had been allocated to other employees and her job no longer existed. See Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771 (1 November 2013); Lai v Symantec (Australia) Pty Ltd [2013] FCCA 625 (28 June 2013)

But best to get legal advice from an employment lawyer in relation to your specific circumstances. See Get Connected with the Right Lawyer for You