Handling Return-to-Work After Parental Leave

Why It’s No Longer as Simple as “Back to Your Old Job”

We’ve had a number of calls recently from MTA members about staff returning from parental leave - especially around part-time work requests. Many business owners are unsure what their legal obligations are, or how best to manage these situations.

A recent Fair Work Commission (FWC) case has put the spotlight on what can go wrong - and what employers need to do right.

The Case: Dismissal After Flexible Work Request

A full-time parts interpreter returned from parental leave and asked to work part-time so she could care for her baby. The employer said they couldn’t accommodate the change and eventually issued a termination letter, believing she had effectively quit by refusing full-time hours.

But the Commission disagreed.

It ruled that the worker had been dismissed - not that she had resigned or “repudiated” her contract. Despite some misunderstandings and differing accounts of meetings, the worker had stayed in touch and made genuine efforts to return - just not on the original terms.

The case is now proceeding under general protections legislation, and it’s a timely reminder for all employers.

4 Key Lessons for Employers in the Motor Trade

1. Parental leave return does not automatically mean a full-time return

Employees returning from parental leave have the right to request flexible working arrangement - including reduced hours, different days or changes to start/finish times. These must be genuinely considered.

You can decline such requests, but only with solid business reasons—and you must respond in writing within 21 days.

❗ Example: A worker requests to finish at 3pm daily due to childcare pickup. If you say no, you’ll need to clearly justify why those hours aren’t workable for the business.

2. Communication and documentation are critical

The case showed how vital it is to keep written records. Misunderstandings over what was said in meetings created major complications.

✅ Tip: Always follow up verbal discussions with a quick summary email. It protects both sides and avoids “he said/she said” disputes later.

3. Dismissal can't be disguised as “employee choice”

If a worker wants to return - but under different conditions - and you respond by ending their employment, that’s still a dismissal under the Fair Work Act.

You can’t simply say, “They wouldn’t come back full-time, so they left.” It doesn’t hold up legally.

⚠️ Missteps here can lead to claims of adverse action or discrimination based on parental or carer responsibilities.

4. Return-to-work discussions must be handled lawfully

This isn’t just a matter of rostering. There are specific legal steps to follow when an employee makes a flexible work request - especially after parental leave.

Under section 65(1A) of the Fair Work Act 2009, an eligible employee can request flexible working arrangements (e.g. after having a child), but they must put the request in writing and include the following:

What the employee must include:

• The details of the change requested (e.g. reduce to 3 days per week, finish by 3pm, no Saturday work)
• The reason for the change (e.g. childcare arrangements, school drop-offs, family caring responsibilities)
• Why the change will help them manage their circumstances (i.e. how it supports their role as a parent or carer)

It’s not enough for an employee to simply say, “I have kids.” They must clearly outline the specific adjustment they need and the reason it’s necessary for their personal situation.

As the employer, you are legally required to:

• Genuinely consider the request
• Respond in writing within 21 days, stating whether it’s approved or refused
• Give detailed business reasons if refusing

Valid business reasons for refusal may include:

• The requested change is too costly
• It’s not possible to reorganise work among other staff
• It’s impractical to recruit extra staff
• The change would reduce productivity or service quality
• It would create a significant impact on operations

Tip: If the request isn’t practical, discuss options with the employee. You may find a compromise (e.g. trial part-time for 3 months, or adjusted roster) that works for both sides.

What You Should Do as an Employer

✅ Clarify return dates early to avoid confusion

✅ Prepare to assess flexible work requests properly

✅ Keep communication respectful, transparent, and documented

✅ Seek advice from MTA’s ER Team before making big decisions

Need Help? We’re Here for You

The return from parental leave is a sensitive time - and mishandling it can carry legal risks. If you receive a request for flexible work or are unsure how to proceed, contact the MTA ER Advisor Team for guidance.

📞 02 9016 9000 📧 [email protected]