My role was removed during parental leave: how do I distinguish redundancy from unlawful treatment?

Parental leave is not a lawful reason for dismissal

Under Australian national-system law, an employer cannot dismiss an employee because of pregnancy, parental leave, or caring responsibilities. This means that if your role is removed while you are on parental leave, the removal must be based on a genuine redundancy, not on your leave status. A genuine redundancy occurs when the employer no longer needs the job to be performed by anyone, the employer has complied with any applicable consultation obligations, and reasonable redeployment within the business or an associated entity was not available. The fact that the redundancy happens during your leave does not, by itself, prove that the dismissal is unlawful, nor does it prove that it is genuine. You need to examine the actual reason and the process followed.

Record both your leave and the change

Keep all documents related to your parental leave, such as the leave approval, your planned return date, and any correspondence about your return. Also keep your current role description, any business announcement about the restructure, and all termination communications. Note the date the employer became aware of your leave and the date the change was proposed. Record the explanation given for the redundancy and any opportunity you had to discuss its effect on you. Separate what you personally observed from assumptions you might make about another employee's situation or the company's finances.

Ask about work and payment separately

When you seek information, ask specifically about the reason for the role change, the consultation process that was followed, any alternative positions that were considered, and how your continuous service is recognised. Separately, ask about your entitlements to notice, any accrued leave, and redundancy pay. If you are given a resignation form, check whether you are actually choosing to resign or whether the employer is terminating your role. Do not sign a document that inaccurately describes the situation merely because it is presented as an administrative requirement. On unpaid parental leave, the employer must take reasonable steps to give information and an opportunity to discuss significant changes affecting your job’s status, pay or location as the decision is made, rather than wait until your return.

Check the correct legal route without delay

If your employment has ended, seek advice promptly about the available legal routes, such as an unfair dismissal claim, a general protections claim, or a discrimination claim. Each route has different eligibility criteria and time limits. Do not wait for a future return date if your employment has already ended. This article cannot determine whether a prohibited motive exists, approve a redundancy, or choose a claim for you. It helps you organise the evidence you need for individual advice. The Commission’s unfair-dismissal and general-protections dismissal applications both have a 21-day filing period after dismissal takes effect, subject to their separate coverage and eligibility rules. Get advice on the appropriate route promptly rather than lodging competing dismissal applications.

Illustrative example: how to compare the facts

Imagine you are on unpaid parental leave and your employer announces a restructure. Your role is abolished, and you are told the redundancy is genuine. You have records showing that the employer knew about your leave before the restructure was announced, and that no alternative role was offered to you. You also note that a colleague with similar duties was retained. In this situation, you would need to ask: Was the decision made because the business no longer needed the role, or because you were on leave? To answer that, you would compare the employer's explanation with the timing, the consultation, and the treatment of similar roles. This comparison helps you decide which legal route to pursue, but it does not by itself prove unlawful treatment.

Next steps if the issue remains unresolved

If you have gathered the records and asked the questions above, but you still cannot determine whether the redundancy is genuine or whether your dismissal was unlawful, you should seek professional advice. Bring your documents and a written summary of the timeline to an employment lawyer or a community legal centre. Ask specifically: 'Based on these facts, which legal claim is most appropriate, and what are the time limits?' Do not delay, because time limits for claims are strict.

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