Thinking | 16 August 2016

Dismissal for requesting flexible working arrangements

The recent decision in Heraud v Roy Morgan Research Pty Ltd1 reinforces that employers must comply with their obligations under the Fair Work Act 2009 (Cth) (Act) regarding parental leave and related entitlements or risk pecuniary penalties and orders for compensation.

Ms Heraud was employed with Roy Morgan Research (RMR) as the National Customised Operations Director when she commenced a period of 39 weeks parental leave. During her leave, RMR decided to restructure its business to respond to the loss of some major clients and the emergence of a new competitor in their core field of business.

Shortly before she was due to return to work Ms Heraud was advised that her role was being made redundant, and she was offered several redeployment options.

Ms Heraud then made a request for flexible working arrangements for when she returned to work.

Following this request, RMR brought forward the redundancy of Ms Heraud’s role (terminating her employment), withdrew the offers of the redeployment positions, and formally declined her request for flexible working arrangements.

The Court found that RMR had subjected Ms Heraud to adverse action in breach of the general provisions in the Act by failing to return Ms Heraud to her pre-parental leave position until it was no longer required, refusing her request for flexible working arrangements, withdrawing the redeployment options, and terminating her employment because she had exercised her workplace right to make a request for flexible working arrangements and because she had exercised her workplace right to take parental leave.

RMR did not call the person who made the relevant decisions with regard to Ms Heraud’s employment to give evidence to explain their decisions. This meant that RMR failed to discharge the onus to show it had not terminated Ms Heraud’s employment because of her parental leave and/or request for flexible working arrangements.

In a subsequent decision2, the Court ordered RMR to pay Ms Heraud $20,000 for loss of enjoyment, loss of reputation and distress, as well as $52,000 in pecuniary penalties for the three breaches. The case is set down for a further hearing on compensation for financial loss in September 2016.


1[2016] FCCA 185
2Heraud v Roy Morgan Research Ltd (No 2) [2016] 1797

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