When an organisation is considering making redundancies, it is important to consider whether employees who are pregnant or on parental leave are afforded any special protections under Australian law.
Both the Fair Work Act 2009 and anti-discrimination legislation include provisions particularly relating to pregnancy and parental leave, including the right to return to the same or a similar position. The fact that declaring a position redundant may result in the termination of an individual's employment means consideration must be had to whether the termination employee's employment is in fact lawful, even if there are genuine grounds for making a position redundant. This takes into account whether the termination violates any of the protections afforded to pregnant and parental leave employees. In addition, the fact that the Fair Work Act 2009 provides a reverse onus of proof for adverse action matters means that there is an even higher obligation on employers to ensure that the redundancy was lawful in all of the circumstances.
The position in Australia can be contrasted against the position in France, for example, where employers are not allowed to dismiss an employee from the moment she is medically certified as being pregnant and must reinstate an employee who was terminated when pregnant when informed of her pregnancy. The position in France is discussed in an earlier post which can be assessed at the following link.
It is the unfortunate reality that many companies face the need to reduce their workforce to meet changing economic conditions. Where a company no longer requires a position to be done by anyone, and this may include removing individual positions or reducing headcount in a team of similar positions, those positions become redundant.
Issues arise for organisations as to how they identify positions to be made redundant and how they select particular employees where there is an overall reduction of headcount.
For a particular position to be considered redundant, the question is whether that position is required by the organisation. It may be that the duties of a position can be spread over a number of other existing positions, or that technologies, systems or practices have changed such that a particular role is no longer required. Organisations no longer require someone to update the rolodex the way they once did!
If it can be shown that there is an organisational change such that a position is no longer required, and there is an objective basis for this decision that is not in connection with the personal attributes of the employee who holds the position (in particular, the fact that the employee is pregnant or on parental leave), then it is likely that it will not be unlawful to select that position for redundancy.
When determining to reduce headcount more generally, it is not so much a review of particular positions, but whether the business requires the existing number of positions to perform a certain task. Are only 10 call operators now required when we previously had 20? In this regard, the question will be how does the company select the employees that it will make redundant as part of this reduction of headcount?
The key consideration when selecting employees for redundancy is to ensure that the selection criteria applied are objective and not based on a protected attribute or for an unlawful reason.
This appears straight forward enough when applying criteria across the board such as 'last on first off' to a redundancy selection, but it is not simply sufficient to apply the criteria without having regard to the particular circumstances of the employees affected.
Protected attributes – pregnancy and parental leave
In addition to the parental leave and related entitlements (including pregnancy) set out in the National Employment Standards, pregnancy and parental leave are protected attributes under the Fair Work Act 2009 and also anti-discrimination legislation. This means that rights arise:
- Under National Employment Standards to take parental leave and be entitled to return to the employee's same position (or suitably similar);
- under the General Protections provisions of the Fair Work Act (Adverse Action); and
- to be free from unlawful discrimination (both direct and indirect).
In the context of a redundancy, the employee who is on parental leave must be considered as an employee who is present at work as they have the right to return to their pre-maternity leave position.
By virtue of being a protected attribute, an employer must ensure that the pregnancy or parental leave was not a reason, or even one of the reasons, that the employee was selected for redundancy.
Reverse onus of proof
In particular, under the General Protections provisions there is a reverse onus of proof. Therefore, if an employee on parental leave is selected for redundancy, the presumption will be that they were selected because they were on parental leave and it will be up to the employer to demonstrate, on an objective basis, that this was not the case.
It is also important to ensure that if a blanket policy is applied as part of the selection criteria, it does not have a disproportionately unfair effect on a pregnant or parental leave employee. Cutting the positions of the company's lowest performing employees may be reasonable criteria, but if sales figures are considered over a period during which an employee was on parental leave, without compensating for that period of leave, this may have an adverse impact on that employee and, as such, their selection for redundancy may be unlawful.
In many respects, the additional considerations that must be given to employees who are pregnant or on parental leave may be seen as special protections, but this is a hallmark of equitable employment.