Several employers have been caught out recently when trying to dismiss employees on parental leave.

A few recent cases before the Employment Relations Authority have emphasised that particular processes must be followed if an employer wants to terminate an employee on parental leave.

In one case, the employer had re-distributed workloads to cope with the employee’s absence. In doing so, the employer realised the employee had been surplus to its requirements. It therefore sought to make her redundant.

The Employment Relations Authority held that the resulting dismissal was unjustified and awarded $19,000 lost wages, $15,000 compensation, and a $2,000 penalty for breaches of parental leave legislation.

The law provides protection against termination of employment for employees who are pregnant or on parental leave.

There are limited circumstances where an employee who has been told their position can be kept open for them for a period of parental leave may be dismissed.

A special defence is available to employers in redundancy situations – provided certain requirements are met.

Those requirements include the standard requirements under employment law in all redundancy situations:

• That the redundancy is genuine – it’s about the role in the business, and not about getting rid of someone in particular;
• That a fair process is followed – which means employees are consulted with, similar alternative roles in the business are offered to redundant employees first, and so on…

AND requirements imposed under parental leave legislation:

• That the employer was unable to keep the employee’s position open;
• That there was no prospect of the employer being able to appoint the employee to a position which was vacant and which was substantially similar to the position held by the employee; and
• That the employer has not, in the period commencing with the beginning of the employee’s parental leave and ending with the termination of the employee’s employment, prejudicially affected either the employee’s seniority or superannuation rights.

Employees on parental leave are especially vulnerable to restructures due to their absence from the office. Parental leave legislation is designed to protect these employees and ensure any decisions made about their employment are well-considered.