Return to Work Guarantee –Merit Based Reviews

Pursuant to s 83 of the Fair Work Act 2009 (Cth) (the Act), if an employee is on unpaid parental leave and an employer intends to make a decision which will have a significant effect on the status, pay or location of the employee’s pre-parental leave position, the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.

Furthermore, pursuant to s 84 of the Act, upon the ending of unpaid parental leave, an employee is entitled to return to the employee’s pre-parental leave position, or, if that position no longer exists, an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.

It is well established law that an employer should not use a woman’s pregnancy as a convenient reason to decide which employee to make redundant and that the criteria for redundancy should be fair and merit-based, with pregnancy not being one of those criterions.


  • If you are an employer, you should ensure you have performed an adequate merit-based review of all staff prior to making an individual on parental leave redundant.
  • If you are an employee who has been made redundant whilst on parental leave, you should ask your employer for a copy of the merit-based review which resulted in your termination of employment.

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This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.