By Mike Toten Freelance Writer

An employer who made no contact with an employee during her 12 months on parental leave, then told her no work was available, has been found to have unfairly dismissed her. The business downsized significantly during her time on leave, but she did not find out until she asked for an extension of her leave. The Fair Work Commission (FWC) ordered the employer to pay her redundancy pay.

 

Facts of case

When the employee commenced leave, both parties just assumed the period would be 12 months and the length and return date were not discussed. After almost 12 months of leave, the employee requested a further 12 months leave, but the employer declined the request, initially not providing a reason. The Manager/Business Owner claimed that the business had downsized and he did not have a position available for her. 

The employee had only contacted the employer once during her 12 months of leave, over a minor issue. The employer claimed that, because he had not heard from the employee, he assumed that she would not return to work. 

The FWC found that although downsizing the business meant that there had been a genuine redundancy, failure to consult with the employee about it was in breach of the employee’s award as well as the Fair Work Act 2009. Both had provisions that required consultation. The Manager told her she was redundant two months after he made the decision and only after she initiated contact with him. He responded to that contact by saying he would provide a response within three weeks – although he had already decided to retrench her.

 

Decision

Notifying the employee of redundancy by email and without any prior warning or consultation amounted to unfair dismissal. The FWC awarded the employee two weeks' pay in lieu of notice plus superannuation. It did not consider other compensation as the employee indicated that she intended to care for her children and not seek other employment.

 

What this means for employers

Even if an employee is absent on parental (or other) leave, the requirement of prior consultation with the employee over possible redundancy remains in force.

In this case, the FWC emphasised the importance of maintaining regular contact with employees during parental leave, so they know what is happening within the business and no “nasty surprises” occur. In some cases, a structured means of maintaining contact, eg online meeting once a month, will be a good idea. Remember that an employee on leave is still a current employee and therefore still protected by legislation and awards. 

 

Read the judgment

Mrs Laura Stien v Hire A Hubby Pakenham [2025] FWC 510 (26 February 2025)