Returning to work after maternity leave when my boss doesn't want me to.

January 20, 2013 3:03 PM

Returning to work after maternity leave when my boss doesn't want me to.

After working full time for the same small professional firm for nearly three years, I recently had a baby and took maternity leave. I told my boss early in my pregnancy that I intended to take six months leave and he seemed a bit shocked, asking who was going to care for my baby (um, there's this thing called daycare) but I didn't think about it too much while he is an older gentleman with a traditional and sexist perspective, we've always had a very good and close working relationship. I ended up being hospitalised at 28 weeks until the birth and therefore left work with no notice but while there, I reaffirmed in writing that I intended to be back at work six months after the baby was born. I heard from coworkers that to replace me he had hired two women - one working three days a week, the other three and a half. It's now January and I have daycare arranged for March, so I went into work last week to talk to my boss about coming back and to give him a start date. My intention is to return for three days initially and then move back into full time within two months and while he accepted that (legally, he has to) he again seemed shocked that I would put my daughter into childcare and insinuated that having a job was really just a hobby for me. He complained about there not being enough room in the office for everyone and the troubles he would have fitting me in and finding me a desk. The impression I got was that I would be splitting my time between sitting next to the photocopier in a hallway and sharing a desk in the admin pool. Before I left I had my own office next to his.

I didn't really say much during the meeting but I left angry and stressed about returning to work, whereas previously I had been looking forward to it. I am very, very good at my job and their reluctance to give it back to me and instead sideline me into a minor admin role stings. He has never had a staff member go on maternity leave before and obviously believed that I would change my mind, hiring permanent staff to replace me. So my question is, am I entitled, as I believe, to return to a identical position and office to which I left and how do I approach this without creating more drama and bad feelings? I am terrible at confrontation and speaking up for myself in the work place and would really appreciate help with a plan of attack and confirming my rights. I am in Melbourne, Australia.

posted by Wantok to work & money (14 answers total)

What is fair and what you are legally entitled to are two different things, and the latter if very dependent on the laws in your locality. I would look for a local working parents advocacy group or similar government office for guidance. I'm in the US, so I know nothing, but maybe some Aussie mefites can point you in the right direction.

Regardless of what you are entitled to, you might start thinking about looking for another place to work. Caring for a child will mean you need a different kind of work/life balance and flexibility when the expected happens. It sounds like this boss will make that difficult. Regardless of what the law requires or allows, life is MUCH easier if your boss is reasonable and willing to work with you on work/life balance stuff.
posted by jeoc at 3:12 PM on January 20

I'd suggest calling the Fair Work Ombudsman for advice - there is a helpline at 13 13 94.

You're legally entitled to be able to go back to your previous job (or something as close as possible to it if your job doesn't exist anymore) after returning to work from maternity leave. Just because someone else has been hired to do your job, it doesn't mean that the job doesn't exist anymore.

Your boss was legally obliged to tell your replacement employees that they may only be temporary - if he hasn't done this, he's in breach of the law.
posted by RubyScarlet at 3:16 PM on January 20 [13 favorites]

This is probably a good time to become familiar with Individual Flexibility Arrangements as well. Fairwork.gov.au is indeed an excellent first instance resource!
posted by Trivia Newton John at 3:30 PM on January 20

Sounds mighty like sex discrimination to me. Have a chat with the Human Rights Commission folks or your local Community Legal Centre to find out your options. Sometimes, even if you don't want to change anything, it still helps to know that you're in the right and you could take action.
posted by gingerest at 3:43 PM on January 20 [2 favorites]

Two thoughts:

1. It's unclear to me what your problem with your employer is. So far as I read your question, your employer has not denied you your position and, in fact, has already accepted your right to work. You have only had the "impression" you would be given space next to a photocopier. You have no evidence so far that you have been demoted in any way. It seems like you are preemptively assuming the worst.
2. You're somewhat asking the wrong question here: So my question is, am I entitled, as I believe, to return to a identical position and office to which I left and how do I approach this without creating more drama and bad feelings? The thing about legal requirements is that they are not self-enforcing. It doesn't really matter what you are entitled to, it matters how much you are willing to assert yourself against your employer. Even if you are entitled to an identical position and office (I have no idea whether that is true or not), if your employer denies you that position/office, the only avenue you have is either government enforcement of the law or a lawsuit against your employer. Either of those cannot possibly achieve what you want without drama and bad feelings. In other words, the question you should be asking yourself is, "do I want this office/job enough to force my employer to give it to me?" I'm certainly not saying the answer to that question is "no", just that asking questions about legal requirements without considering that the law is a blunt instrument is going to lead you astray.

posted by saeculorum at 4:29 PM on January 20

PPL has been fairly recently introduced in Australia, so an employee taking parental leave from a small company and returning to full time duties could be seen as unexpected because there is little precedent for taking leave when a child has come into a family. There is a tendency for working women to accept (sometimes asking for, other times not fighting for more) reduced wages, work hours, duties, and promotion opportunities after having a child -- recent literature on parental leaves in the UK, US, and Canada confirms this behaviour as prominent though not universal.

he is an older gentleman with a traditional and sexist perspective

Your boss's age and perspective would lead me to expect him to plan for you to "do the traditional/right thing" and not return to work after parental leave even though you indicated and reaffirmed that you would.

Since you work for a small firm, your satisfaction with work will depend strongly on how you and your boss handle this transition. In your position, I would plan to return to full time hours as soon as feasible and firmly, repeatedly, assert my expectation of resuming my position, duties, office, and perqs. The occasional comment about my partner taking an equal share of household duties would also find its way into casual conversation as a reminder that times have changed in the past 50 years.

You may want to see what other positions in your field are open at organizations with more progressive leadership, even if you choose to remain with this firm.
posted by thatdawnperson at 6:02 PM on January 20

Sounds mighty like sex discrimination to me.

That would be a difficult charge to sustain where a woman was replaced by two women.
posted by Tanizaki at 6:10 PM on January 20

Why not clearly explain your views to your boss, instead of operating on assumption? Ask him direct questions about your position, office, and anything else you want to know.
posted by twblalock at 7:18 PM on January 20

Actually, Tanizaki, if you go look at the definition of sex discrimination at the link I provided, no, it's not. Pregnancy discrimination is a special case of sex discrimination in Australia, and all direct pregnancy discrimination requires is that "a woman is treated less favourably than another person because she is pregnant or because she may become pregnant." Has nothing to do with the sex of the worker who replaces her.
posted by gingerest at 7:52 PM on January 20 [13 favorites]

Business Victoria has info and advice on flexible working arrangements for small business employees/employers.
They also provide guidance on Maternity and Paid Parental leave
I would put in writing what you require from your boss and how you propose to return... Some people respond better to written info.
posted by sconbie at 7:59 PM on January 20

PPL has been fairly recently introduced in Australia, so an employee taking parental leave from a small company and returning to full time duties could be seen as unexpected

While paid parental leave is recent, 12 months of unpaid maternity leave has been available and widely used in Australia for a long time. This is not a remotely uncommon or unexpected occurrence in this country.
posted by markr at 9:45 PM on January 20 [2 favorites]

Further to that, Googling tells me that the right to unpaid maternity leave was introduced here in 1979, so employers have had over 30 years to get used to the idea of mothers being entitled to return to their jobs.
posted by markr at 9:48 PM on January 20 [2 favorites]

Fair Work Ombudsman should be your first port of call, absolutely. Even if you've been given a position, marginalisation at your workplace because you have had a baby is absolutely discrimination, and is against state and federal laws (relevant gov website).

The size of the business might be relevant, as sometimes small businesses have exemptions from complying with legislation like parental leave. So maybe make sure you have that info when you contact the Ombudsman.
posted by chiquitita at 12:31 AM on January 21 [1 favorite]

Quite certain you get 12 months unpaid maternity leave and can return into your same position on same pay (or nearest to if that position became redundant during your leave).

Unpaid Parental leave entitlements see human services link here.

Good luck! So much variation across different employers for paid & unpaid maternity leave in Australia.... I sometimes wish I'd gone into a government or university job to take advantage of their attractive maternity entitlements!
posted by Under the Sea at 3:02 AM on January 21