'Resignation' due to mat leave

[Cottoneyes]

I've got a friend who has recently had the good news of finding out they are expecting their first child.

It turns out that this friend will need to commence their mat leave just prior to the end of their 12 months service and when they advised their manager, were advised that they would be required to resign when the time came.

The organisation in question is of a medium size (approx 500 employees) and there have been other cases where employees with less than 12 months service have not been requested to resign, but been allowed to take mat leave of 12 months and then return to work, with the most recent cases having been after the introduction of the Fair Work act, one such case involved an employee who was 3 months pregnant when offered the role and it was not known by the organisation.

The friend and the worker with the precedent have different roles, however both would be classified as professional and are on a similar grading.

Despite the ruling contained within the Fair Work Act being in place, does this person have any grounds to challenge this direction to resign due to the precedents already in the company?

[Qld IR Consultant]

You could argue it but FWA seems to pick and chose what precedents it looks at. I'd be focusing on constructive dismissal myself and in my opinion the company is treading a fine line, especially actually telling her to resign. Tell her not to resign under any circumstances and seek some advice.

[HR Prof]

The 12 month cutoff date is not the last day of work, but the expected date of birth of the baby. Would this help the employee get over the line in terms of the 12 months service requirement?

Although it has been given to other employees in the past (either paid or fully unpaid) that doesn't mean they need to offer it to everyone as there could well be differences in terms of individual performance, how difficult it is to hire someone else into the role, etc. If it has been done more than a couple of times though, she could have a case for saying she would expect no less favourable treatment than others have received.

Telling her to resign is very bad wording though. Ultimately, the employer is not required to offer parental leave and hold the job open for her if she doesn't have 12 months service. Practically, this means the employee needs to resign, but there are better ways of putting it!

[HeyPete]

Your friend may also utilise Annual Leave and Personal leave if that will help them get over the line.

For the personal leave, she will need a medical certificate from her doctor to confirm her not being fit for work.

These also count as time in service.

[ER-Enthusiast]

You cannot use personal leave during parental leave however, even if "unfit" due to approaching birthdate, its only very few occassions and employee can use their personal leave.