When returning from parental leave an employee is legally entitled to return to the same or a comparable position. There have been many instances where employers have not complied with this obligation resulting in the courts awarding damages to affected employees.
In 2007, Nike was ordered to pay one of its employees almost $20,000 in damages for discriminatory conduct towards the employee on her return to work following maternity leave. When she returned, the employee found herself demoted to a role junior to the one she had held previously. The employee’s manager told her that her priority should be the care and attention of her baby. He further sent an email following the employee’s return to work saying “Please welcome Sally back to the office and if she s p e l l s e v e r y t h i n g o u t when talking to you please be patient!” This email was found to be patronising and inappropriately made a connection between the employee’s role as a carer of her child and her performance in the workplace. It was found that the employee was not appointed to the senior role because of her child care responsibilities and her manager’s beliefs about the effect these might have on her performance.
In another 2007 case, an employer was ordered to pay $55,000 to an employee by failing to allow the employee to return to work after taking maternity leave. The company employed a contractor to fill her position while she was on leave. The contractor was perceived to be a superior worker with greater experience to the employee on leave. When the employee attempted to return to work she was told her position had been made redundant. The court found that the real reason why the employee was not permitted to return to work was because the Company wanted the contractor to do the work instead. The company was found to be “insensitive” to the employee’s circumstances and was “dismissive of her as a valued employee”.
These cases demonstrate that employers must avoid relegating former employees who return from maternity/paternity leave to inferior positions without sufficient justification. A person’s status as a carer or parent should not be a substantial consideration when determining what position a potential or former employee should undertake.
1. King v Nike Australia P/L (Anti-discrimination) [2007] VCAT 70 (24 January 2007)
2. Iliff v Sterling Commerce (Australia) Pty Ltd [2007] FMCA 1960 (3 December 2007)
