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Parental LeaveJanuary 31, 2014
Many employers are unaware of how they should employ (and their obligations to) employees who are replacing an employee who is on unpaid parental leave.
The Fair Work Act 2009 (the Act) imposes an obligation on employers to notify a prospective replacement employee that:
As an example, if an employee on parental leave gives birth, but the child dies after 2 months during the period of parental leave of 12 months, the employee reserves the right to end their maternity leave early and return to their original position.
The importance of this is that if, in the above example, the employer engaged the replacement employee on a fixed term basis and the employee on parental leave chooses to come back early, then the employer could potentially be breaching the contract of employment with the replacement employee (and may be liable to pay the remainder of the term of the contract of employment). On top of that, a penalty of up to $51,000 may be imposed on the employer for each breach of the Act. As you can see, a simple mistake may become a costly affair at the end of the day.
Therefore, it is important for employers to keep these obligations in mind before engaging a replacement employee. Managing the employees expectations from the outset, by notifying them as required by the Act and ensuring their term of employment is set by reference to replacing the employee on parental leave (rather than a fixed term), will prevent issues later on.
By Geeta Vanugopal – Adviser