Unreasonable to Dismiss

Unreasonable to refuse part-time work after parental leave

An employer refused to allow a woman returning from parental leave to work on a part-time basis. The Fair Work Commission (FWC) found that the woman had been constructively dismissed, that is, her resignation had effectively been forced upon her.

In related news, the Federal Government has announced that the Australian Human Rights Commission will be conducting an inquiry into discrimination around pregnancy at work and return to work after parental leave.

Right to request part-time work

Ms R was employed as an IT administrator and the company had an agreement under which she was employed that provided a right to request to work part-time until the child reached school age. If the company refused such a request, it was to do so on objective business grounds.

Facts did not support employer’s case

In this particular case, the employer made Ms R's return to a part-time position conditional upon its ability to recruit another part-time employee.

On this point, Commissioner Lewin commented:
‘Rather than making Ms R’s return to part time work conditional upon recruitment of another part-time employee, which in my objective judgement was unreasonable, it would have been reasonable to have Ms R return to work for three days a week in late January. If the further resources were required that could have been achieved by subsequent recruitment or contracted services. However, it is clear that the Company has continued to provide part time equivalent performance of Ms R’s role.’
Customer service argued
Customer service issues were put forward by the employer and rejected by the commission:
‘… the refusal of Ms R’s request to work part time would not seem reasonably based in relation to the impact on customer service. The nature of the role would seem to impact on internal customers, presumably with potential consequential effects on the delivery of the Company’s service to its clients. On the evidence, it is not possible to judge that the primary impact on the customers … of Ms R’s request to work part time for three days per week would have been adverse had it been granted in the circumstances, given that Ms R was an experienced employee of the Company and would have provided a greater number of hours of work in the role than was being delivered in a not entirely satisfactory manner by an external service provider …’

Constructive dismissal

The tribunal found that the employer’s refusal of the part-time work request was unreasonable and the applicant had been constructively dismissed.

Pregnancy/parental leave inquiry announced

The Federal Government has just announced that the Australian Human Rights Commission will conduct an inquiry into pregnancy at work and return to work after parental leave.|

 ‘There is significant anecdotal evidence that women in particular are being demoted, sacked, or having their role or hours unfavourably “re-structured” while on parental leave or on their return from leave. The inquiry will measure the prevalence of this discrimination and help ensure parents, particularly mothers, are treated fairly at work,’ said Attorney-General Mark Dreyfus.

Sex Discrimination Commissioner Elizabeth Broderick will oversee a national survey commencing in August 2013 to more accurately assess the prevalence, nature and consequences of discrimination relating to pregnancy at work and return to work after parental leave. 

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