A project management company has been ordered to pay a former employee nearly $170,000 after a court ruled its parental leave policy breached the National Employment Standards (NES) because of the inclusion of three words.
Paul Scullin has won the action he brought against his former employer Coffey Projects in the Federal Circuit Court of Australia, after he was made redundant following a period of leave to care for his newborn twins.
Scullin had worked for Coffey Projects, a division of Coffey International, since 2007. He took unpaid leave to care for his twins from May 2011 to April 2012.
He did not take unpaid ‘parental’ leave because of a line in Coffey Project’s parental leave policy that stated an employee must be the child’s “primary care giver” to be eligible for leave.
When Scullin returned to work in 2012, Coffey had experienced a downturn in the construction industry due to the global financial crisis and subsequently changed his employment to part-time or casual work, rather than full-time work.
In May 2013, Scullin was made redundant and his redundancy package was calculated and paid on the basis that he was part-time.
Scullin alleged Coffey had taken an adverse action against him, had made a misrepresentation in its parental leave policy, had discriminated against him and had breached his employment contract.
The court found the Fair Work Act requirement for unpaid parental leave, as part of the NES, is that an employee “has or will have a responsibility for the care of the child”.
The Act provides a provision that allows an employee to return to their pre-parental leave position, or, if the position no longer exists, to an available position nearest in status and pay to the pre-parental leave position.
Judge Frank Turner ruled Coffey had breached the Fair Work Act by adding the words “primary care giver” to its parental leave policy, because the legislation did not require Scullin to have the primary responsibility for the care of the children in order to be entitled to unpaid parental leave.
Turner found Coffey unlawfully refused Scullin unpaid parental leave and therefore did not afford him his rights under the Fair Work Act to return to his previous full-time position when his leave finished.
Turner awarded Scullin the difference in his pay from what he earned in part-time work to what he would have earned in full-time work between his return from leave and his redundancy, which was $169,347.24
Maurice Blackburn senior associate Emma Thornton told SmartCompany the case was a reminder to employers to take care in ensuring their policies and decisions are at least consistent with the minimum entitlements granted to employees under the Fair Work Act or any relevant legislation.
“In times when workplaces are genuinely trying to make adjustments for parental responsibilities to invest in retention and engagement of employees with children and assist their return to work, it is important they act consistently with their legislative obligations,” Thornton says.
Thornton reminds employers the Fair Work Act provides employees with basic and important rights to parents to take paid and unpaid leave to care for their children and return to the same, or a similar role after taking this leave.
“Having children is an important part of life and is something that workplaces can effectively support without limiting an employee’s access to work, career or income,” adds Thornton.
SmartCompany contacted Coffey but the company declined to comment.
*This article was updated on June 17, 2016, to remove an incorrect reference to evidence presented to the court.