The case of Mrs Laura Stien v Hire A Hubby Pakenham [2025] FWC 510, decided by Commissioner Redford in the Fair Work Commission, highlights the importance of good communication with your employees who are on parental leave. This means observing keeping-in-touch days, consulting with employees, and providing employees with a dismissal decision in advance.
This case serves as a good reminder that effective communication before, during, and after parental leave is essential for ensuring compliance with the statutory requirements under the Fair Work Act 2009 (Cth) (Act) and mitigating the risk of unfair dismissal claims.
Background
Mrs Laura Stien (Mrs Stien) was employed as an Office Administrator at Hire A Hubby Pakenham (HAHP). HAHPS was a small business owned and operated by Mr Ronald Moore (Mr Moore), with five employees, including Mrs Stien.
In October 2023, Mrs Stien went on parental leave without any discussion about her length of leave or when she would return to work.
Both parties assumed she would take 12 months’ parental leave.
In October 2024, Mrs Stien requested an extension of her parental leave by leaving her written request on the floor outside HAHP’s business premises’ door. Mr Moore claimed he had not received the extension request until November 2024 and subsequently declined the extension request because her role was redundant.
Mrs Stien lodged an unfair dismissal application. HAHP contested the application on the grounds that the dismissal was a genuine redundancy and the dismissal was consistent with the Small Business Fair Dismissal Code.
Decision
Commissioner Redford decided, however, that the dismissal was not a genuine redundancy. While HAHP had a valid reason for the dismissal, that is, the position was no longer required to be performed by anyone because of justified operational changes of downsizing and outsourcing, HAHP did not satisfy the procedural requirements.
Commissioner Redford stated that ‘the manner in which HAHP terminated Mrs Stien’s employment left a lot to be desired’ and criticised HAHP for:
- failing to consult with Mrs Stien:
- about a major workplace change in accordance with the applicable award;
- while on parental leave about changes affecting her role (as required by the National Employment Standards (NES): section 83 of the Act);
- failing to notify Mrs Stien:
- of a valid reason for her dismissal explicitly;
- before the decision to terminate is made.
Key Takeaways for Employers
A genuine redundancy must meet the legal requirements under section 389 of the Act:
- It must be because the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer‘s enterprise;
- if an industrial instrument applies (such as an award or enterprise agreement), the employer must have consulted with the employee about the redundancy; and
- it must not have been reasonable in all the circumstances for the employee to be redeployed to another role within the enterprise or an associated entity.
The decision in Stien further highlights the need for a valid reason and fair process, and in a situation where the employee is on parental leave, the need for explicit communication between the employer and parental leave employee before, during, and after parental leave to avoid misunderstandings and ensure compliance with any applicable award and the NES.
Parental Leave Tips
Before an Employee Takes Parental Leave
Employers should first check whether a parental leave policy exists and confirm the employee’s eligibility for unpaid, paid, or flexible parental leave. It’s also important to ensure the employee has:
- Applied for parental leave and provided the required notice—at least 10 weeks before starting unpaid parental leave and at least 4 weeks for flexible parental leave (or as soon as possible).
- Supplied any required documentation, such as medical certificates, a birth certificate, or a statutory declaration.
- Received a response from the employer within 21 days of their request.
For pregnant employees, employers must also consider whether their job can be performed safely. If not, they may be entitled to:
- Special maternity leave in cases of pregnancy-related illness.
- A transfer to a safe job.
- Paid or unpaid ‘no safe job leave.’
Lastly, verifying the start and end dates of parental leave (at least 4 weeks before the employee’s leave begins) and arranging a temporary replacement will help ensure a smooth transition.
During an Employee’s Parental Leave
Ongoing communication is key. Employers should:
- Consult with the employee about any significant changes that could impact their job, including changes to status, pay, or location.
- Comply with consultation clauses under any applicable industrial instrument.
- Arrange keeping-in-touch days to maintain engagement and ease the transition back to work.
Employers should also be prepared to handle any requests from the employee during this period. These may include pausing or ending parental leave early, extending the leave period, or requesting flexible working arrangements upon return.
To ensure a smooth transition, a return-to-work plan should be developed before the employee’s expected return date.
After an Employee’s Parental Leave
Supporting an employee’s return to work is essential to reintegrate them successfully.
Employers should provide an induction or training on any key business updates that occurred during their absence and conduct welfare checks to assess any support the employee may need.
Flexible working requests should be carefully considered, and if there are any changes to employment terms—whether temporary or permanent—these must be confirmed in writing to ensure clarity and compliance with workplace laws and industrial instruments.
If you need help understanding whether you are complying with the parental leave obligations under the Act and industrial instrument, preparing a parental leave policy, or responding to a parental leave-related enquiry, please give us a call. We are here to help.