An Unlawful Termination can occur where an employer terminates, or makes redundant, an employee whilst that employee is absent from work during maternity leave or other parental leave.
In the case of Kristinian Iannello v Motor Solutions Australia Pty Ltd [2010] FWA 3125, Ms Iannello had been absent from work during maternity leave for approximately one year and Mr Hennessy had assumed her responsibilities during this period. When Ms Iannello was fit to return to work, the employer, Motor Solutions Australia, notified Ms Iannello that there had been an economic downturn since her departure and as a result, there would only be a part-time vacancy available for her. Ms Iannello did not accept the part-time vacancy and as a result, Motor Solutions Australia made Ms Iannello redundant.
In this case it was held that Ms Iannello’s redundancy was not a genuine redundancy. In particular, whilst Ms Iannello was on maternity leave, Mr Hennessy had taken over Ms Iannello’s employment responsibilities and even if there was now only one position available, when making a decision to make Mr Hennessy or Ms Iannello redundant, Motor Solutions should had considered the skills, expertise and experience of each employee. Based on the evidence, it was clear that Ms Iannello’s seniority, skills and experience were greater than that of Mr Hennessy thus it was Mr Hennessy who should have been offered the part-time position and/or made redundant, not Ms Iannello.
Tips
- Employers should make sure they have performed an adequate merit-based review prior to the redundancy of an employee.
If you have any questions in relation to this article, please contact Damin Murdock at Leo Lawyers on (02) 8201 0051 or at office@leolawyers.com.au.
DISCLAIMER: This article is not to be taken as legal advice and is general in nature. If you require specific advice, please contact us.
