Parental leave can only be taken by employees who have worked for your company for a certain period of time. However, if a pregnant employee does not meet this requirement, what are the consequences of denying them parental leave? A recent case in the Australian Federal Circuit and Family Court addressed this issue.

The Court addressed a case called Sayabath vs Willowdale Nominees (2023), in which an employee filed a complaint despite not meeting the criteria for receiving unpaid parental leave specified in the Fair Work Act 2009 (Cth) (FW Act) or their employer’s parental leave policy. In response to the employee’s request for a year-long parental leave without pay, the employer denied it on the grounds that the employee plays a critical role in the company’s daily operations. Consequently, the employee chose to quit their job. The worker claimed they had been forced to quit their job by the actions of their employer, and that these actions had negative consequences due to the worker’s pregnancy, which is against section 351(1) of the FW Act.

 An employer’s refusal to grant parental leave led to the employee’s resignation, which did not constitute adverse action, since the employer was not required to grant the request and was not otherwise seeking to terminate the employee’s employment. Resignation was an option, as was remaining in her job or proposing an alternative arrangement. An employee can seek access to legal rights or other leave for having a baby if she chooses to remain at work. It is also possible for an employee to propose an alternative arrangement, which the employer may accept or reject. It is also important for the employer not to influence the employee’s choice of the most appropriate course of action.

It was noted by the court that the employee did not attempt to find any other solutions to keep her job. She resigned because she was unable to fulfill her duties, not because her employer denied her leave. Ultimately, it was the employee’s decision to quit because she was unable to fulfill her role, not because of the employer’s conduct.