Parental Leave and Employment Protection Act 1987
Part 6 Protection Of Employment

Section 49 Dismissal by reason of pregnancy or parental leave prohibited

(1) No employer shall terminate the employment of any employee

(a) By reason of, in the case of a female employee,

(i) Her pregnancy; or

(ii) Her state of health during her pregnancy, unless her state of health during her pregnancy is materially affected by causes not related to her pregnancy; or

(b) By reason of, in the case of any employee,

(i) The employee indicating that the employee wishes to take parental leave under this Act or rights and benefits in the nature of parental leave under any provision other than this Act; or

(ii) The employee assuming, with a view to adoption by the employee or by the employee and the employee's spouse jointly, the care of a child; or

(c) During the employee's absence on parental leave or during the period of 26 weeks beginning with the day after the date on which any period of parental leave ends.

(2) It shall not be a contravention of subsection (1) of this section for an employer to terminate the employment of an employee

(a) With the employee's consent; or

(b) Where solely on account of

(i) The pregnancy of a female employee or the employee's spouse; or

(ii) The employee assuming, with a view to adoption, the care of a child,

the employee absents himself or herself from work (other than with the agreement of the employee's employer or in accordance with section 13 or section 14 of this Act) for any period which the employee is not entitled to take as leave by reason of any provision of this Act or any entitlement to parental leave contained in any provision other than this Act.

Section 50 Special defences relating to dismissal

Where

(a) It is alleged in any proceedings under this Act that an employer has, in contravention of section 49(1) of this Act, terminated the employment of an employee; and

(b) It is proved in those proceedings that the employer terminated the employee's employment either

(i) During the employee's absence on parental leave; or

(ii) During the period of 26 weeks beginning with the day after the date on which any period of the employee's parental leave ended,—

the defences set out in sections 51 and 52 of this Act shall be available to the employer.

Section 51 Special defences relating to dismissal during parental leave

Where the termination is proved to have taken place during the employee's absence on parental leave, it shall be a defence for the employer to prove

(a) That

(i) In the case of a period of parental leave to which section 40(1) of this Act applies, on the ground of the occurrence of a redundancy situation that occurred in the employer's business after the employer gave the employee notice in terms of section 36(1)(c)(i) of this Act, the employer was unable to keep the employee's position open; or

(ii) In the case of other periods of parental leave, on the ground of circumstances (of the type referred to in section 41 of this Act) that occurred in the employer's business after the employer gave the employee notice in terms of section 36(1)(c)(i) of this Act, the employer was unable to keep the employee's position open; and

(b) That the employer terminated the employee's employment on account of a redundancy situation of such nature that there was no prospect of the employer being able to appoint the employee to a position which was vacant and which was substantially similar to the position held by the employee at the beginning of the employee's parental leave; and

(c) That the employer had not, in the period commencing with the beginning of the employee's parental leave and ending with the termination of the employee's employment, prejudicially affected either the employee's seniority or the employee's superannuation rights.

Section 52 Special defence relating to dismissal during the 26 weeks following parental leave

Where the termination of employment is proved to have taken place during the period of 26 weeks beginning with the day after the date on which any period of the employee's parental leave ended, it shall be a defence for the employer to prove

(a) The matters set out in paragraphs (b) and (c) of section 51 of this Act; and

(b) That, during the period between the end of the period of the employee's parental leave and the termination of the employee's employment, the employer had (despite being prepared to accord the employee preference over other applicants) been unable to appoint the employee to a position which was vacant and which was substantially similar to the position held by the employee at the beginning of the employee's period of parental leave.

Section 53 Redundancy payments not affected

Nothing in this Act shall affect any redundancy payment payable pursuant to the provisions of any Act or of any [order] or [employment agreement].

Section 54 Dismissal for cause not affected

Nothing in this Act shall affect any right of an employer to dismiss an employee for a substantial reason not related to

(a) The employee's or the employee's spouse's pregnancy; or

(b) The employee assuming, with a view to adoption by the employee or by the employee and the employee's spouse jointly, the care of a child; or

(c) The employee's rights under this Act.

End of Part 6