Well this is kind of a long story, so I will try to abbreviate.
I was with my employer 2 weeks short of 1 year when I went on maternity leave. Worked until 4 days before my son was born. The pregnancy was unplanned and I spoke to my employer on numerous occasions to see if I was going to have a job when I wanted to come back. I received many assurances that they would always need a customer service supervisor and yes I would still have a job.
They let me go on leave, and they have been paying my government maternity leave for the last 3 months. So now technically I have been employed by them for over 12 months.
As it turns out, the company has really liked the person that I hired to fill my role under a 4 month contract. Last week they called and said that they were going to offer me a 6 month contract working on SAP as this is my specialty but they need someone more customer service focused since the SAP integration is done now.
i am meant to go back the first week of April and the they have called me to tell me that they no longer have a job for me. They are going to be keeping my replacement on. But they have not told me how they are letting me go and I am super confused not to mention gutted.... I worked so many hours of unpaid overtime for these people and did EVERYTHING they asked an then some, but that's another story I suppose.
My questions are, if anyone can help...
if I have never been spoken to about poor performance, can they "fire" me without warning while I am on mat leave?
am I technically employed for 12 month even if I was on leave for the last month, meaning that if they want to make me redundant am I entitled to a payout?
Can they make me redundant and keep my contract replacement on full time but simply retitle the role to customer service manager if the functions are the same?
thanks for reading if you have made it this far. I would really appreciate any information people can offer if they have been in a similar situation.
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13-03-2013 21:10 #1
Is this even legal...? Being let go while on mat leave
13-03-2013 21:12 #2Senior Member
- Join Date
- Jan 2013
I don't really know but I think you would AT LEAST be entitled to a pay our
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13-03-2013 21:14 #3
No they can't keep your replacement, they need to give you your job back - the law is quite clear on This. Which state do you live in?
Last edited by ExcuseMyFrench; 13-03-2013 at 21:16.
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13-03-2013 21:15 #4
13-03-2013 21:17 #5
Check the link I just give you and give them a call. What your company is doing is clearly illegal.
13-03-2013 21:17 #6Senior Member
- Join Date
- Jan 2013
I guess the thing is do u have anything in writing saying they agreed to give you mat leave? Cos if not technically on mat leave it is prob a bit different. I sit think they could just let u go with no payout tho etc
13-03-2013 21:18 #7
A replacement employee is the person who’s hired to replace another employee while they’re on unpaid parental leave.
Employers have to tell replacement employees:
that their engagement is temporary
the rights of the person who is on unpaid parental leave, including their right to return to work
the rights of the employer to cancel the parental leave in some circumstances (e.g. Still birth or infant death).
Making these things clear from the beginning ensures that the person who replaces the person on leave isn’t disappointed later on.
13-03-2013 21:48 #8
If I am not on maternity leave, what kind of leave am I on? I'm so confused :-(
13-03-2013 21:50 #9
They can't fire you for poor performance if it has never been discussed but it doesn't sound like they are firing you for performance issues?
Re: redundancy, again this depends on the 12 months service. Unpaid leave may not çount as service but it is a grey area. Fair Work may look favourably on you for this if it is only a 2 week difference. But on the other hand there does have to be a cut off.
You can't get a redundancy and then be hired again on a contract. Unless you want a big tax bill! Most employers know this.
When you went on leave did you get any sort of confirmation letter? Were you paid out your leave entitlements or do you still have any accrued annual leave?
With regards to your replacements functions and duties being exactly the same, it sounds like this might not be the case? Even if int is, you can be sure your employer will have a job description to "prove" that isn't the case.
TBH it sounds like they have not really considered you as an employee on leave (which if less than 12 months service they are not required to do) but are simply "re-hiring" you, iykwim....
You absolutely have to call Fair Work though, even if you have less than 12 months service. It is worth a shot, although there is no guarantee you would be successful
ETA: it's fairly new so largely untested but your employer paying your government PPL doesn't make you an employee necessarily. The money is not from the employer, and there is no obligation for you to return to work. But again, another grey area and something to discuss with FWA.
Last edited by kw123; 13-03-2013 at 21:52.
13-03-2013 21:55 #10
I mentioned above that I don't think them paying your PPL is relevant. They are just a third party who administer the payment.
You could just be on unpaid leave. Or you could not actually be employed. If they paid out your accrued leave on your last day then this would be a giveaway of that.
Have you spoken to HR??
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