Ms Hanina Rind v Australian Institute of Superannuation Trustees  FWC 3144 (31 May 2013)
When a full time employee’s request to return to work part time after her parental leave expired was refused by her employer, she resigned, but not before claiming constructive dismissal. And Fair Work agreed with her.
The employee had a return to work plan of a gradual build-up from one day a week to three but beyond that, she was unwilling to return to her regular full time role. There were numerous alternatives put by the employer all of which were refused.
The employee eventually resigned citing the refusal as leaving her no alternative. The company argued that she resigned but the employee argued she had been constructively dismissed.
Fair Work decided the threshold issue in the employee’s favour and a major part of the reason to do so was founded in the fact that the company had made no attempt to actually fill her position while she was on leave, or since, with a full time person. The company’s behaviour appeared to be at odds with its argument that it needed a full time person. In fact, at all times when the company was arguing that a full time position was the only answer, the position (and the work) was being performed on a part time basis.
Further the company’s enterprise agreement had important provisions in it making policy commitments to do what the employee was asking for – to allow part time conversions for returning new parents.
The lesson here is twofold; first, if companies do not want third parties to decide their management processes for them, then they should either refrain from, or be very circumspect about, putting motherhood statements in their enterprise agreements, and second, never enter an argument without clean hands. The company could hardly expect its position to be respected if it had not produced any evidence or explanation why it had not filled the position with a full time person, and therefore be consistent.