An employee who is on unpaid parental leave may decide they want to come back to work earlier. But what if another employee is working in the role? Can an employer say ‘no’ to the request?

Let’s consider this scenario: an employee applies for unpaid parental leave and indicates they will be taking the full 12 months off. However, due to financial pressures, the employee asks if they can return to work after six months.

Meanwhile, the employer has hired a replacement employee for the 12-month period. If the employee is allowed to return to work early, there will be two employees in the same position for six months.
 

The Fair Work Act

There is no provision in the Fair Work Act (FWAct) that gives a unilateral right to an employee to return to work earlier than originally agreed. In the above scenario, if the employee wishes to return to work from parental leave six months early, this can only be done with her employer’s agreement. An employer would need to discuss the matter with the replacement employee before coming to a final view, taking into account the terms of the replacement employee’s contract of employment. 

Other related parental leave issues include:

Direction by an employer to return early

An employer can only require an employee to come back to work early if they no longer have responsibility for the care of a child. If this is the case, an employer needs to give an employee four weeks’ written notice. A mother who has given birth cannot be required to return to work earlier than six weeks after the date of birth.

Extending parental leave

Once an employee’s request for unpaid parental leave has been granted, the FWAct provides that an employee can extend their leave once, without approval from their employer. 

To extend the leave, an employee is required to notify the employer in writing at least four weeks before they are due to return to work and Include the new date for a return to work. 

Employees who planned to take less than 12 months unpaid parental leave can extend their leave up to a total of 12 months. Employees who have taken 12 months of unpaid parental leave can apply to extend their leave by up to a further 12 months.

Any further requests to extend unpaid parental leave must be agreed upon between an employer and an employee.