Mothers returning to work have workplace rights that should be fully supported by their employers, says legal expert.

The growing demands of contemporary society have encouraged more women to work full time while juggling a growing family. Employers need to show their support and understanding for women who are returning to work after having a child, and not punish them for exercising their workplace rights. This is especially true if they require a flexible working arrangement, or if they choose to make use of their workplace entitlements such as maternity leave.

Recently, Roy Morgan Research was fined $52,000 after denying a new mother flexible working hours upon her return from maternity leave, before then making her position redundant.

While Roy Morgan had undergone a restructure of its organisation in response to financial circumstances, another employee continued to act in the mother’s pre-maternity leave position, making this a non-genuine redundancy.

A similar situation took place in 2013 when Melbourne wealth management company, Carnbrea, dismissed their client services manager just two days after she wrote a request to return to work part-time after her maternity leave.

According to her application to the Fair Work Commission, she had agreed to return to work at either a full-time or part-time capacity by mid-2013. At the end of May 2013, she applied to work three days a week from July, with the expectation of returning to full-time work within six months.

There are certain laws that protect mothers returning to work from being terminated or discriminated against due to the exercise of maternity leave.

Rights of a working mother

Employees have the right to request flexible working arrangements such as a change of hours, change in patterns of work such as ‘split-shifts’, or a change of location of work. Employees are not entitled to make these requests unless they have completed at least 12 months of continuous service with their employer immediately before making the request.

The Fair Work Act 2009 states that the employer must have reasonable grounds to refuse the request, such as:

• the new working arrangements requested by the employee would be too costly for the employer;
• it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
• the new working arrangements requested by the employee would likely result in significant loss of efficiency or productivity; and
• the new working arrangements requested by the employee are likely to have a significant negative impact on customer service.

What to do if you are discriminated against for taking maternity leave?

General protections provisions under the Fair Work Act protect working mothers from being terminated or their duties being significantly altered due to the exercise of a workplace right concerning maternity leave or a request for a flexible working arrangement. A claim might be available for the employee to make under the Fair Work Act. 

The reverse responsibility will then be on the employer, to satisfy that the workplace right was not a reason for the adverse action.

This is traditionally quite a difficult onus for an employer to satisfy, as the workplace right need not be the only reason for the adverse action, but one of the reasons in the decision maker’s mind when the adverse action was taken.