Woman told to resign due to having a child

Discussion in 'Legal Issues' started by Tim86, 29th Sep, 2018.

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  1. Tim86

    Tim86 Well-Known Member

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    This woman I know worked for the employer for 7 months before having her child. She wanted 6 months off and to come back to work after her leave. She was fine with unpaid leave as she hadnt worked for the employer for the minimum 12 months required for maternity leave.

    Instead she was told to resign and reapply.

    She did this and has continued with her employement for a couple years now. However she has lost her long service leave previously accrued and was put back on the starting base rate and lost 54 hours sick leave.

    Is it legal for a large employer to do this?

    Thanks

    Tim
     
    Last edited: 29th Sep, 2018
  2. Angel

    Angel Well-Known Member

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    How could she accrue any LSL at all and 54 hour's sick leave if she only worked for this employer for 7 months? She has told you a furfy.
     
  3. The Y-man

    The Y-man Moderator Staff Member

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    A few things -
    How long was the probation period ~ 6 months is normal so she must have just got through?
    Was she on a fixed-term contract or permanent basis?
    Is it a large company (as defined by fairwork)?

    The Y-man
     
  4. Scott No Mates

    Scott No Mates Well-Known Member

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    AFAIK there's no entitlement to maternity leave until 12 months with the employer. She get pregnant after one month. LSL doesn't start to have a funding obligation on the employer until 5 years of service and isn't payable until 10 years (except for industries with portable LSL).
     
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  5. Tim86

    Tim86 Well-Known Member

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    I just asked her and she says she was employed for roughly 7 months and had 54 hours sick leave. She isnt sure why she had that much when sick leave after 7 months should be more like 40 hours.

    In regards to the lsl the issue is that she is put back 7 months to when she is entitled to access it. They access it at 5 years.
     
  6. Tim86

    Tim86 Well-Known Member

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    Yeah would be classified as a large company. Hundreds of employees.
     
  7. Tim86

    Tim86 Well-Known Member

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    Probation was 3 months

    And she was permanent full time
     
  8. Tim86

    Tim86 Well-Known Member

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    I read that too. But not sure if that is in reference to paid maternity leave. And whether or not there is any provision at all for employees under the 12 month threshold.

    It doesnt seem right if it is the case. That a woman has to quit and start over with an employer if she gets pregnant. Especially if the employer intends to have them return to work.
     
  9. Scott No Mates

    Scott No Mates Well-Known Member

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    There is no obligation to keep a position open for an employee of <12 months.
     
  10. Westminster

    Westminster Tigress at Tiger Developments Business Member

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    I believe she has no case.
    Her employer did have the choice to put her on unpaid leave for 6mths if they wanted but they are not legally or even morally obligated.
    I was contract on hourly rates with #1 and negotiated to come back after 4mths to which they agreed and they employed another contractor for the time I was gone. They didn't have to but I asked and they evidently wanted me back so they agreed to it.
     
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  11. Angel

    Angel Well-Known Member

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    The best thing would be to open her employment contract and read it.
     
  12. Illusivedreams

    Illusivedreams Well-Known Member

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    Long service leave of 6 months?

    I find Long service leave such a strange thing.

    You get a Bonus on top for working in your job.:)
     
  13. Marg4000

    Marg4000 Well-Known Member

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    With less than 12 months employment she has no entitlement to maternity leave, paid or unpaid.
    At best, she would have accumulated a week of sick leave.
    This means she would have to resign her job.
    It is unrealistic to expect 6 months leave, even unpaid, after such a short term of employment.
    Clearly she knew she was pregnant when she accepted the job, unless the baby was premature.
    Marg
     
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  14. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    It recognises extended periods of service and was first offered by the Commonwealth Govt for long periods of tenure. Started in the 1960s when Australia was a colonial office of the UK..

    Wikipedia says : Long service leave was introduced in Australia in the 1860s. The idea was to allow civil servants the opportunity to sail home to England after 10 years' service in 'the colonies'. It rolled out to private enterprise and state awards especially in the 1950s.

    Its no more a difficult concept as holiday loading (which may reflect lost opportunity for overtime or work with loadings eg Saturdays) - Ironic it became a matter even for salaried and workers without o/time eg through Governmnet workers who also wanted a bit of the pie...In 1970s Labour expanded it as a election sweetener. And its taking decades to eradicate.

    Awards and other entitlements are merely part of the TCE...Total cost of employment which can include super, mandated leave and the other NESs'. The 10 National Employments Standards are not oncosts but additional included obligations. Its important employers cost this into payroll as its not permissable to discount the employee package to remove these. Thats how the coal mines of the UK and the cotton mills of Manchester got to employ children.
     
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  15. luckyone

    luckyone Well-Known Member

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    Why do you think she couldn't accrue 54 hours sick leave in 7 months. I've worked many places where you get your full year's entitlement on the day you start.

    Also, by losing her LSL she probably meant that she's lost 7 months of time accruing towards her LSL, not the money as such. Had she have been able to go back on the same employment she would have been 7 months + 1 day closer to receiving her LSL than she was since she had to start her employment from day 1 again.
     
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  16. Indifference

    Indifference Well-Known Member

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    So, she was either already pregnant or became pregnant immediately upon job commencement..... & now she feels hard done by.....

    When exactly did she inform her new employer that she was pregnant? It surely would've been within the probation period...... unless she hid it until after it was completed Hmmmmmm....
     
  17. inertia

    inertia Well-Known Member

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    She didn't get pregnant, she was already pregnant. Even if she had been there 3ish months (under normal circumstances) before falling pregnant, she would have been eligible for maternity leave. Leave without pay is discretionary at the best of times. If the organisation adhered to their own policy on dealing with leave without pay requests, then there really is no recourse. It is actually very kind of them to rehire her after 4 months.

    Cheers,
    Inertia.
     
  18. Tim86

    Tim86 Well-Known Member

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    Exactly
     
  19. Tim86

    Tim86 Well-Known Member

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    Organisation is desperate for competent staff. They were advertising for new staff the whole time she was gone. They always intended to hire her back. They just got her to quit instead of leave without pay, with the only difference being that she lost her leave accrual and her wage reset.
     
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  20. luckyone

    luckyone Well-Known Member

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    Yep, behaviour by companies that should be illegal
     
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