Returning to work after parental leave

by The Findlaw Team

In New Zealand, the Parental Leave and Employment Protection Act 1987 covers notice requirements for employees returning to work after a period of parental leave, such as maternity leave or extended leave.

Notice

The employee is required to give their employer 21 days’ written notice before the period of leave ends, advising whether or not they will be returning to work.

Where it is important to know the employee’s intention in this respect, it may be advisable to contact the employee 28 days before the leave ends to remind them and/or ask for their decision.

If the employee chooses not to return to work or fails, without good cause, to return to work after the end of the period of parental leave, their employment is treated as having terminated on the day on which the leave began.

Early ending of leave

An employee may choose to end parental leave early (either to return to work or to begin a period of preference for employment) where:

  • The child miscarries, is stillborn, or dies;
  • Consent is given to adoption and the child is cared for by another person;
  • The employer consents; or
  • The employee ceases to have care of the child.

In each case, 21 days’ notice of intention to return to work must be provided.


Where an employee wishes to end maternity leave and return to work on an earlier date, the employee must obtain her employer’s consent, which may be made conditional upon the provision of a certificate of fitness from a registered medical practitioner.

Request for part-time work on return

The Parental Leave and Employment Protection Act 1987 requires the employer to keep the employee’s position open while they are on leave under the Act. It is relatively common for an employee returning to work from parental leave to want to work part-time, or in some way vary their hours or place of work to make it possible to continue in their job and care for their child or children.

Under Part 6AA of the Employment Relations Act 2000, if an employee has been employed by their employer for the preceding 6 months or more, and has the care of any person (such as a child), they have a statutory right to request a variation of their working arrangements.

Employers can only refuse such a request on certain grounds. “Working arrangements” means hours of work days of work and/or place of work (for example, at home or within the employee’s workplace).

The request must be in writing and must:

  • State:
    - the employee’s name;
    - the date on which the request is made; and
    - that the request is made under Part 6AA of the Act.
  • Specify the variation of the working arrangements requested and whether the variation is permanent or for a period of time.
  • Specify the date on which the employee proposes that the variation take effect and, if the variation is for a period of time, the date on which the variation is to end.
  • Explain, in the employee’s view, how the variation will enable the employee to provide better care for the person concerned.
  • Explain, in the employee’s view, what changes, if any, the employer may need to make to the employer’s arrangements if the employee’s request is approved. On receiving a request, the employer must deal with a request as soon as possible but not later than 3 months after receiving it.
    The employer must:
    • Notify the employee whether the request has been approved or refused;
    • If the request is refused, notify the employee that the request is refused because they are not eligible to make the request and/or the request has been refused on one of the permitted grounds for refusal; and
    • If the request has been refused on one of the permitted grounds, notify the employee on which ground the request has been refused and give the employee an explanation of the reasons for that ground.
  • The grounds on which an employer can refuse a request to vary the employee’s working arrangements are:
    • Inability to reorganise work among existing staff;
    • Inability to recruit additional staff;
    • Detrimental impact on quality;
    • Detrimental impact on performance;
    • Insufficiency of work during the periods the employee proposes to work;
    • Planned structural changes;
    • Burden of additional costs; or
    • Detrimental effect on ability to meet customer demand.

An employer must refuse a request if the employee is bound by a collective agreement, the request relates to working arrangements to which the collective agreement applies, and the new working arrangements would be inconsistent with the collective agreement.

Continuity of service

Where the employee resumes employment with the same employer at the end of a period of parental leave or during the period of preference in employment, the employment is treated as having been continuous in relation to any benefits or entitlements that are conditional on unbroken service.

Annual leave entitlement on failure to return to work

There is no consideration for annual leave during the period of leave. However, there would be an entitlement for the period from the date on which the employee last became entitled to annual leave to the date on which the employment is deemed to have terminated (ie the date on which they commenced parental leave).

This would be calculated at 8% of gross earnings during that period, less any annual leave taken in advance, or plus any outstanding annual leave from a previous entitlement.

Calculation of holidays on return to work

Under the Parental Leave and Employment Protection Act 1987, the average weekly earnings during the 12 months prior to the end of the last pay period before the annual leave is taken should be used when calculating pay for annual leave that the employee becomes entitled to:

  • During any period of parental leave;
  • During the period of preference in employment; or
  • In the last 12 months from the date on which the employee returns to work after a period of leave or a period of preference in employment.

This applies to all parental leave taken under the Act.

Holiday pay is calculated and paid at average weekly earnings only for this annual leave. There is no requirement to bring this amount up to the value of ordinary weekly pay at the time that the leave is taken.



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