Made Redundant While on Maternity Leave — Your Rights
It IS possible for a genuine redundancy to occur during maternity leave, but your employer must prove it is genuine. Learn about presumption of adverse action, how to challenge, and your entitlements.
Can you be made redundant on maternity leave?
Yes, it is legally possible for an employer to make a position redundant while the employee is on maternity or parental leave — but only if the redundancy is genuine. The Fair Work Act does not create an absolute prohibition on redundancy during parental leave. However, the practical reality is that redundancies during parental leave face intense scrutiny and are very difficult for employers to defend. This is because sections 340-351 of the Fair Work Act (general protections) prohibit adverse action taken because an employee exercised a workplace right — and taking parental leave is a workplace right. If an employee is made redundant while on parental leave, the presumption under section 361 is that the redundancy was motivated by the parental leave unless the employer can prove otherwise. The timing alone creates a strong inference of unlawful motivation. Employers making positions redundant during an employee's parental leave should expect to have their decision closely examined.
What makes a redundancy 'genuine' during parental leave?
For a redundancy to be genuine under section 389 of the Fair Work Act, the employer must demonstrate three things: the job is no longer required to be performed by anyone (the role itself is genuinely eliminated, not just vacant while the employee is on leave), the employer has complied with any consultation obligations in the applicable Modern Award or enterprise agreement, and there is no reasonable opportunity for redeployment within the employer's business or an associated entity. During parental leave, the third requirement — redeployment — takes on particular importance. The employer must actively consider whether the employee can be redeployed to any available position that is suitable given their skills, qualifications, and experience. This includes positions that may become available in the near future. Simply saying 'we restructured while you were away' is not enough. The employer must show that the restructure genuinely eliminated the role, that it was not a pretext for removing someone on parental leave, and that no suitable alternative position exists anywhere in the business.
The presumption of adverse action
The general protections provisions create a powerful presumption in favour of the employee. Under section 361, if an employee who has exercised a workplace right (such as taking parental leave) is dismissed, the employer bears the onus of proving that the workplace right was not a reason for the dismissal. This reverse onus means the employee does not need to prove that the redundancy was motivated by their parental leave — the employer must prove that it was not. In practice, this means the employer needs to produce compelling evidence that the redundancy decision was made for genuine operational reasons entirely unrelated to the employee's parental leave. Evidence that strengthens the employer's case includes documentation of the business restructure, evidence that the restructure was planned before the employee went on leave, evidence that other employees not on parental leave were also made redundant, and proof that consultation and redeployment processes were followed. Conversely, factors that weaken the employer's case include the timing of the redundancy, failure to consult with the employee, hiring someone new for a similar role shortly after the redundancy, and not offering redeployment opportunities.
Your entitlements if the redundancy is genuine
If the redundancy is genuinely legitimate, you are entitled to the same redundancy pay and entitlements as any other employee. This includes redundancy pay under the NES scale (4-16 weeks based on years of service), payment in lieu of your notice period (1-5 weeks based on years of service, noting that employees on parental leave are still entitled to notice), payout of all accrued annual leave (including leave that continued to accrue during paid parental leave), long service leave payout if you have reached the threshold in your state, and any other entitlements under your award, EA, or contract. Importantly, your period of service includes the time spent on parental leave — it does not reset or pause. Parental leave is continuous service for all purposes including redundancy pay calculations. If you were receiving employer-funded paid parental leave at the time of redundancy, you should receive the remainder of any contractual parental leave payment as well, depending on the terms of your employer's policy.
How to challenge a suspicious redundancy
If you believe your redundancy is not genuine — that it is motivated by your pregnancy, parental leave, or family responsibilities — you have several options for challenging it. You must act quickly: the time limit for filing a general protections (involving dismissal) application with the Fair Work Commission is 21 calendar days from the date the termination takes effect. You can also file an unfair dismissal application within the same 21-day period if you meet the eligibility criteria (minimum service period and income threshold). Filing both applications preserves your options. For a general protections claim, you benefit from the reverse onus of proof — your employer must prove the redundancy was not motivated by your parental leave. Red flags that suggest the redundancy may not be genuine include: you were not consulted about the restructure, your role was replaced by someone else (even with a different title), the restructure was announced shortly after you commenced parental leave, you were not offered redeployment opportunities, or colleagues in similar roles were not affected.
The right to return to your pre-parental leave position
Under section 84 of the Fair Work Act, when you return from parental leave, you have the right to return to the position you held before starting leave. If that position no longer exists, you are entitled to an available position for which you are qualified and suited, nearest in status and pay to your pre-leave position. This 'return to work guarantee' is a key protection. If your employer cannot offer you your pre-leave position or a comparable one, and terminates your employment instead, this may constitute a redundancy — triggering all of the requirements for genuine redundancy discussed above. Some employers attempt to restructure roles during an employee's parental leave, creating a 'new' position with a different title but substantially similar duties, and then claiming the original role was made redundant. This is a well-known tactic that the Fair Work Commission and courts have seen through in numerous cases. If the 'new' role involves substantially the same duties as your old role, the redundancy may not be genuine.
Seeking help and next steps
If you are facing redundancy while on parental leave, seek advice immediately. Contact the Fair Work Ombudsman on 13 13 94 for free initial advice. Consider consulting an employment lawyer — many offer free initial consultations for parental leave redundancy cases, as they are often strong claims. Your union (if you are a member) can provide representation and advice at no additional cost. Document everything: save all emails and letters from your employer, take notes of any conversations about the redundancy (including dates, times, and what was said), and keep copies of your employment contract, payslips, and any restructure announcements. Do not sign anything (such as a deed of release or settlement agreement) without obtaining independent legal advice first. If you sign a release, you may waive your right to bring a claim. Remember the 21-day time limit for Fair Work Commission applications — if in doubt, file the application to preserve your rights. You can always withdraw it later if the matter resolves.
Try these free tools
Official resources
General information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.
Related articles
Calculate your redundancy pay entitlements in Australia. NES redundancy pay ranges from 4 to 16 weeks based on years of service. Use our free calculator.
Notice Period Australia: How Much Notice Do You Have to Give?Understand notice periods in Australia. NES minimum notice ranges from 1 to 5 weeks based on service and age. Learn about employer and employee obligations.
Unfair Dismissal in Australia: How to Know If You Have a CaseWas your dismissal unfair? Learn the eligibility rules, 21-day deadline, high income threshold ($175,000), remedies, and how to apply to the Fair Work Commission.