Published 2 July 2015
The Federal Circuit Court has awarded an employee almost $170,000 in unpaid wages and redundancy pay after his employer applied a workplace policy that made parental leave available only to a ‘primary care giver’, finding that the policy was contrary to the National Employment Standards.
In early 2011, Mr Scullin, a project manager at Coffey Projects, discovered that his wife was pregnant and expecting twins. Mr Scullin approached his manager and requested to take parental leave after the birth of his children. His manager sought advice from Coffey’s HR manager. The HR manager referred to Coffey’s Parental Leave Policy, which stated that an employee was only able to take unpaid parental leave if they were the “primary care giver” of a child. The manager acted upon this advice and informed Mr Scullin that as he was not the primary care giver of his children, he was not permitted to take parental leave.
Mr Scullin then took 12 months leave from work which was comprised of two weeks paid paternity leave, long service leave, annual leave and unpaid leave.
Upon return to work after the 12 months leave, Mr Scullin was only offered part time work on the basis of 18.5 hours per week. As he had not taken parental leave in accordance with Coffey’s policy, Mr Scullin believed that he did not have the right to request full time work or to be returned to his previous position.
Approximately 12 months later, his position was made redundant and he received redundancy pay on the basis that he was a part time employee.
Mr Scullin commenced proceedings against Coffey in the Federal Circuit Court claiming that it had:
- Contravened the National Employment Standards (NES) which permits an employee to take 12 months unpaid parental leave if they have a responsibility for the care of the child and after that time be returned to the same or substantially similar position;
- Breached his contract of employment by failing to pay him his salary as a full time employee and failed to apply all minimum statutory entitlements, namely unpaid parental leave under the Fair Work Act 2009 (Cth);
- Knowingly or recklessly made a false or misleading statement about his workplace rights.
The Court found that under the NES, an employee need not be the ‘primary care giver’ of a child and only need to have ‘a responsibility for the care of the child’ in order to be entitled to take parental leave. Coffey’s Parental Leave Policy therefore contravened the NES and was misleading about the workplace rights of Mr Scullin to take parental leave.
However, whilst misleading, Coffey did not make the statements knowingly or recklessly. The Court said:
“when a Manager obtains advice from an employee, who is employed as an expert in the area required about, it cannot be said that the Manager acted recklessly in relying on the advice. A Manager is entitled to act on the advice of an HR adviser who is employed by their employer to give such advice.”
The Court found that reducing Mr Scullin’s hours to 18.5 per week and reducing his remuneration from $202,202 to $99,663 was a breach of contract.
The Court awarded Mr Scullin:
- $109,070.35 being the difference between the remuneration he received as a part time employee and what he should have received as a full time employee;
- $9,155.10 being the loss that he suffered as a result of not accruing annual leave as a full time employee;
- $51,129.79 representing the difference between the redundancy pay he received as a part time employee and what he should have received as a full time employee.