An interesting question came up this week. It seemed so simple at first that it was tempting to dash off an answer then and there. But a moment’s second thoughts and 30 completely wasted billable units later, still no clear answer was found.
It involved an employee wanting to return to work early from unpaid parental leave. He’d split up with his wife while away and she’d taken off with the kids, leaving him with eight months of unpaid parental leave on his hands, but no child to parent.
In the meantime, the employer had signed up someone else to do his job until his scheduled return to work. Furthermore, there was a take-over underway and with all the operational tumult going on, there were no other jobs to give him. So the employer’s hands were tied, but surely that by itself could not justify its saying to its employee ‘Sorry, we can’t help you. Bit busy here. Anyway, hang in there on unpaid leave and we’ll see you next June’.
Unpaid parental leave in Australia is covered by the Fair Work Act 2009 (FWA) Fair Work Act 2009 | Fair Work Australia which says that an employee can return to work early, but only when the employer agrees. For the reasons above no agreement was forthcoming in this case. The FWA also says that an employer can give an employee at least four weeks’ notice to get him back to work early when the employee no longer has a child to care for, but here it was the employee who wanted to come back to work early, not the other way round. So it seems to come down to the interpretation of two words in the FWA which refer to an employee’s entitlement to return to work ‘on ending’ his unpaid parental leave.
Could the employer argue that ‘on ending’ refers only to the end date provided in the initial notice the employee is required to hand in 10 weeks before he heads off on leave, and then confirm four weeks before leave commences? Or did the employee have the stronger position with the argument that his parental leave necessarily ended when he no longer had a child to care for? Is it not logical that a parental leave entitlement would fall away when its very foundation – i.e. care of a child – ceases to be part of the equation?
There is surprisingly little case law on the meaning of ‘on ending’. Actually, being honest, there appears to be none. Nor is there anything in the Explanatory Memorandum to the FWA. We did come upon a New Zealand case which supports the right of an employee to return from parental leave early at his instigation. The NZ Parental Leave and Employment Protection Act 1987 http://www.legislation.govt.nz/favicon.ico provides that where a temporary employee is employed to replace someone on parental leave, the employer must inform him in advance that his position is temporary and that the absent employee may return to work before the original expiry date of the parental leave.
Interesting in a way, of course, but not totally helpful: there is no equivalent provision under the FWA and NZ case law is not binding in Australia anyway.
So in the absence of any authority on the point, it appears that an employer which has made business decisions in reliance on the end date given in an employee’s original parental leave notice can decline his request to return to work early even when there is no longer a child to care for. Not this employee’s best year ever, we suspect.
If nothing else, the whole exercise was a good reminder of how in labour and employment law even apparently simple issues can end up raising curly questions.