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employment

Returning to work after parental leave: Job protection

Key Takeaway

In New Zealand, employees returning from parental leave generally have a right to return to their former job or a comparable position. This protection is primarily governed by the Parental Leave and Employment Protection Act 1987, ensuring job security while on leave, provided certain conditions regarding service and notice are met.

Returning to Work After Parental Leave: Job Protection in New Zealand

Employees in New Zealand who take parental leave generally have a right to return to their job once their leave ends. This job protection is a key component of New Zealand's parental leave legislation, primarily outlined in the Parental Leave and Employment Protection Act 1987 (PLEPA).

Eligibility for Job Protection

To be eligible for job protection, an employee must meet certain criteria regarding their length of service with the employer. An employee's position is protected if they meet the parental leave eligibility criteria [Source: Parental Leave and Employment Protection Act 1987, s 30]. Generally, this means:

  • Continuous Service: The employee must have been employed by the same employer for at least an average of 10 hours a week over the immediately preceding 6 months to qualify for unpaid parental leave, or for at least an average of 10 hours a week over the immediately preceding 12 months to qualify for paid parental leave and extended leave [Source: Parental Leave and Employment Protection Act 1987, s 2(1), s 7B].
  • Notice Requirements: The employee must give their employer written notice of their intention to take parental leave and their expected return date [Source: Parental Leave and Employment Protection Act 1987, s 31]. This notice specifies the type of leave, the date the leave will begin, and its duration [Source: Parental Leave and Employment Protection Act 1987, s 31(a)-(c)].

Right to Return to Former Position

Unless an exception applies, an employee is entitled to return to their former position [Source: Parental Leave and Employment Protection Act 1987, s 36(1)]. The term "former position" refers to the position held by the employee immediately before commencing parental leave [Source: Parental Leave and Employment Protection Act 1987, s 2(1)]. This means the employee returns to the same job, with the same terms and conditions of employment.

When the Former Position No Longer Exists

There are specific situations where an employer is not required to return an employee to their former position [Source: Parental Leave and Employment Protection Act 1987, s 41]. These include:

  • Redundancy or Restructuring: If the employee's position is no longer required due to genuine redundancy or changes in the employer's undertaking, and the employer can prove that the position cannot be refilled by another employee [Source: Parental Leave and Employment Protection Act 1987, s 41(1)(a)(i)].
  • Inability to Perform Work: If the employer can prove that the employee cannot perform the work of their former position [Source: Parental Leave and Employment Protection Act 1987, s 41(1)(a)(ii)].

If the former position is no longer available due to genuine reasons, the employer must offer the employee a suitable alternative position [Source: Parental Leave and Employment Protection Act 1987, s 41(1)(b)]. A suitable alternative position is defined as one that is vacant and is substantially similar to the employee's former position in terms of status, duties, and pay [Source: Parental Leave and Employment Protection Act 1987, s 41(2)]. The employee must be capable of performing the work of this alternative position [Source: Parental Leave and Employment Protection Act 1987, s 41(2)].

Obligations on the Employee

An employee also has obligations to ensure their job protection rights are upheld:

  • Confirmation of Return: The employee must give their employer at least 21 days' notice of their intention to return to work, or a later date if the employer agrees [Source: Parental Leave and Employment Protection Act 1987, s 33(a), s 34(1)(a)]. If the parental leave is reduced, the employee must give notice of the new return date [Source: Parental Leave and Employment Protection Act 1987, s 33(b), s 34(1)(b)].

Enforcement and Disputes

If an employee believes their rights under the Parental Leave and Employment Protection Act 1987 have been breached, they may raise a grievance with their employer. If the issue cannot be resolved directly, the employee may take a personal grievance to the Employment Relations Authority (ERA) [Source: Employment Relations Act 2000, s 103(1)(c), s 104(1)(c)]. The ERA is an independent body that investigates and resolves employment relationship problems. Remedies may include reinstatement, compensation for loss of wages, or penalties against the employer [Source: Parental Leave and Employment Protection Act 1987, s 58, s 59, s 60].

Parental Leave Payments

While job protection ensures an employee can return to work, parental leave payments are a separate entitlement administered by Inland Revenue. These payments are generally available for primary carers who have been employed for at least 6 or 12 months, depending on the leave type, for an average of 10 hours a week [Source: Parental Leave and Employment Protection Act 1987, Part 2, ss 8-15].

When to Seek Independent Legal Advice

Navigating employment law can be complex, especially concerning specific situations like redundancy during parental leave or disputes over suitable alternative positions. It is recommended that individuals seek independent legal advice if they have questions about their specific entitlements or obligations, suspect a breach of their rights, or are involved in an employment dispute. This can be obtained from private lawyers, unions, or organisations such as the Community Law Centres at https://communitylaw.org.nz/.

Key Resources