In Heraud v Roy Morgan Research Ltd [2016] FCCA 185 (February 5, 2016) the Federal Circuit Court of Australia decided that an employer took adverse action against an employee (the "Applicant") by refusing her request for flexible working hours and bringing forward her redundancy when she sought to return to work after maternity leave.

The Applicant commenced employment with Roy Morgan Research Ltd ("Roy Morgan") as National Customised Operations Director on September 10, 2012. She commenced parental leave on September 27, 2013, which ended on July 2, 2014. In late 2013 and early 2014, Roy Morgan embarked on a restructuring of the business in response to a loss of clients and emergence of a competitor, which resulted in redundancies. Prior to returning to work, the Applicant had made a request for flexible working arrangements, and instead of granting the request, Roy Morgan brought the Applicant's redundancy forward to June 11, 2014 instead of late July 2014 (as originally planned).

The Applicant alleged that she was dismissed in contravention of the Fair Work Act 2009 (Cth) ("Act"). She relied on section 340 of the Act, which states that a person must not take adverse action against another person because the person has a workplace right, or has or has not exercised a workplace right. Under sections 83, 84, and 65 of the Act, an employee's workplace rights include the right to take parental leave, to return to work at the completion of parental leave, and to request flexible working arrangements. The Applicant also relied on section 351 of the Act, which protects employees from adverse action taken based on particular attributes, including "family or carer's responsibilities" and "pregnancy."

In response, Roy Morgan argued that the only reason it took any action was simply to effect a commercially necessitated restructuring of the business, which meant that the Applicant's position prior to her taking parental leave and the restructure was redundant.

Judge Jones found that the employee's position had been made redundant as a result of the restructure, and that Roy Morgan failed to redeploy the Applicant in an equivalent position. The judge also found that Roy Morgan had brought forward the Applicant's redundancy, which had been planned for late July 2014, to mid June 2014 (prior to the date on which the Applicant was to return to work), and also failed to accommodate the Applicant's flexible working arrangements. Based on the evidence available from the relevant period, Judge Jones found that the reason for bringing forward the Applicant's redundancy was the Applicant exercising her workplace right to request flexible working arrangements. As such, Roy Morgan was found to have taken adverse action against the employee in contravention of the Act.

Employers should exercise caution when undertaking restructuring that involves making roles redundant while an employee is on parental leave. If an employee exercises his or her right to take parental leave or request flexible working arrangements, it is unlawful to take adverse action (including dismissing the employee or altering an employee's position to his or her detriment) against the employee on the basis that he or she has exercised that right.