The Fair Work Commission has found that an employer’s unreasonable refusal of an employee’s request to work part time after a period of parental leave constituted constructive dismissal.

The enterprise agreement which applied to the employee provided a right to request to return from parental leave on a part-time basis. The employer could only refuse the request on reasonable business grounds. After the birth of her second child, the employee formally requested a gradual return to work, commencing on two days a week and increasing to three days a week in three months’ time. The employer refused the request, on the basis the role required a “dedicated full time on site resource” and there had been “frustrations” caused by reducing the role to part time off site capacity. The employer proposed various arrangements to encourage the employee to return to work but these were either “equalling attendance of five days of the week or otherwise conditional in nature”.

The Commission considered the employee’s role and the employer’s subsequent failure to advertise or fill the position with a full time employee and concluded it was not reasonable to refuse the employee’s request. The Fair Work Commission held that the employee was constructively dismissed because the employer’s refusal was “inimical” to the continuation of the contract and “justified the employee treating her employment at an end” and/or “forced her to resign”.

Rind v Australian Institute of Superannuation Trustees [2013] FWC 3144