We have an employee who will be returning from parental leave after 2 years. She has requested to return to a different role, as her current role requires working overtime and weekends. We do not have an alternative role to offer her. What are our responsibilities with regard to offering her another role or flexible work arrangements, whereby she would not have to work the overtime and weekends?
The Fair Work Act 2009 (Cth) (FW Act) provides a ‘return to work’ guarantee for employees on parental leave so they can return to their pre-parental leave position. If that position no longer exists or has changed, then in accordance with the return to work guarantee, they will need to return to an alternative acceptable position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.
Alternatively, if the employee is requesting to return to a different position, they are not entitled to this without your agreement. You are required to pay redundancy pay in circumstances where you are unable to offer an alternative acceptable position. You may consider a practical approach and consult with the employee on what basis she would like to return to work following the end of her parental leave. The employee is entitled to request flexible work arrangements in accordance with Division 4, Part 2-2 of the FW Act.
If the employee is requesting flexible arrangements to the pre-parental leave role, then you should only refuse on reasonable business grounds after consultation. Reasonable business grounds include where the change would be too costly or result in a significant loss of productivity. Moreover, you will have a defence if the employee cannot meet the inherent requirements of the role. This may be made out if working overtime and on weekends are considered inherent requirements of the role.
Please note that under the FW Act general protections provisions, you cannot take adverse action against an employee because of their family or carer responsibilities, or because they request flexible work arrangements.