Navigating the world of employment laws can sometimes feel like trudging through a maze, especially when it intersects with personal milestones like starting a family. Whether you’re expecting, on maternity leave, or planning to be, understanding your rights is crucial to ensuring peace of mind during this important time. One common concern that pops up for many expecting and new parents is: “Can I legally be fired while on maternity leave?”
In Australia, the short answer is no, employers cannot fire you simply because you are on maternity leave. However, as with many legal answers, there are nuances worth understanding.
Understanding Maternity Leave
Firstly, let’s define maternity leave. In Australia, maternity leave falls under the broader category of parental leave, which is an employment entitlement under the Fair Work Act 2009. Employees who have worked for their employer for at least 12 months are entitled to up to 12 months of unpaid parental leave, and they can request an additional 12 months—making it up to two years in some cases.
Protections Under the Law
The Fair Work Act 2009 and the Sex Discrimination Act 1984 provide protections against discrimination based on pregnancy, potential pregnancy, or because you are taking or planning to take parental leave. Under these protections, being fired for taking maternity leave, or even for being pregnant, is considered discrimination and is against the law.
Exceptions to the Rule
However, while you cannot be dismissed for taking maternity leave, there are situations where an employer might lawfully terminate employment during a period of maternity leave:
1. Redundancy: If your position is genuinely made redundant, you can be dismissed. However, the employer must ensure the redundancy is genuine, meaning the job is no longer needed, and they must follow appropriate processes.
2. Performance Issues: Employees can still face disciplinary actions or even be dismissed for performance or misconduct, even while on leave, provided these reasons are genuine and unrelated to the pregnancy or leave.
3. Business Closure: If the business closes altogether, the employer may terminate all employees, including those on maternity leave.
What to Do If You Feel Unfairly Dismissed
If you believe you’ve been dismissed unfairly while on maternity leave, you have options:
1. Communicate: Start by discussing the dismissal with your employer to seek clarification.
2. Seek Support: Contact a solicitor or your union representative. They can provide advice or assist in negotiations.
3. File a Claim: You may need to lodge a complaint with the Fair Work Commission or the Australian Human Rights Commission if you believe the dismissal was discriminatory or unfair.
Practical Tips to Protect Yourself
While you can’t always control the actions of your employer, there are ways to protect yourself:
- Documentation: Keep records of communications regarding your leave and any performance or conduct-related feedback you’ve received during your employment.
- Know Your Rights: Familiarize yourself with your entitlements before and during maternity leave. Resources like the Fair Work Ombudsman’s website can be invaluable.
- Professional Advice: Consider seeking advice from a legal professional if you are concerned about your job security or if you face any issues.
- Stay Involved: Where feasible, stay lightly connected with your workplace while on leave to remain informed about any changes in your department or position. Some companies offer “keeping in touch” days for this purpose.
Navigating your rights around maternity leave can be empowering. By understanding your legal protections and knowing how to act if those rights are violated, you can approach this important time in your life with more confidence and less stress. Remember, every situation can be unique, so consider seeking personalized legal advice tailored to your circumstances if you face challenges.
