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Early return from parental leave: can employer refuse request?

Or does an employer have to allow the early return to work?
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Early return from parental leave: can employer refuse request?

Early return from parental leave: can employer refuse request?

7 April 2021

What happens if an employee wants to return early from unpaid parental leave but someone is working in their position? Does an employer have to allow the early return to work?
 
Q  We have an employee who is on unpaid parental leave. At the time she applied for leave, she indicated she would be taking the full 12 months parental leave. However, the employee has now contacted us stating she wishes to return to work after six months, as the household is under some financial pressure.
 
We hired a replacement employee in her role, indicating at her interview that the position was a 12-month placement while the incumbent was taking maternity leave. If our permanent employee is allowed to return to work, we would then have two employees in the same position for six months.
 
We are not sure what to do: do we have to allow our employee to return to work earlier than we originally agreed?
 
A  There is no provision in the Fair Work Act (FWAct) which gives a unilateral right to an employee to return to work earlier than originally agreed. In this case, if the employee wishes to return to work from parental leave six months early, this can only be done with your agreement. An employer would need to discuss the matter with the replacement employee before coming to a final view, taking into account the terms of the replacement employee’s contract of employment.
 

Other related parental leave issues include:

Direction by the employer to return early
 
An employer can only require an employee to come back to work early if they no longer have responsibility for care of a child. If this is the case, the employer needs to give the employee four weeks’ written notice. A mother who has given birth cannot be required to return to work earlier then six weeks after the date of birth.
 
Extending parental leave
 
Once an employee’s request for unpaid parental leave has been granted, the FWAct provides that an employee can extend the leave once, without approval from their employer. To extend the leave, an employee is required to notify their employer in writing at least four weeks before due to return to work. This notification must include the new date for a return to work. The new date cannot be more than 12 months from the date the parental leave commenced.
 
Any further requests to extend unpaid parental leave must be agreed between the employer and the employee.

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