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Parental leave

How you’re protected while pregnant or on parental leave

Protection from being dismissed

Parental Leave and Employment Protection Act 1987, s 49

Your employer can’t fire you for being pregnant, for applying for parental leave, or for being on parental leave.

What if my pregnancy prevents me doing my job?

Parental Leave and Employment Protection Act 1987, ss 9, 14, 16, 26, 49

If your pregnancy prevents you doing your job properly or adequately, your employer can transfer you temporarily to another job. You can’t be fired for being pregnant.

If no other suitable work is found, your employer can require you to start your parental leave early. Even if this is more than six weeks before your baby’s expected due date, you’ll still be entitled to 12 weeks’ primary carer’s leave after your baby is born, and your entitlement to extended parental leave also won’t be reduced.

What happens to my job if I’m on parental leave?

Parental Leave and Employment Protection Act 1987, ss 40, 41

This depends on how long you’re on leave for:

  • Leave for four weeks or less – If you’re taking parental leave for four weeks or less, and it’s the first period of leave you’ve taken for this particular child, the law assumes your employer is able to keep your job open, unless the employer can prove that your position has become redundant (for redundancies, see “Leaving or losing your job” in the chapter “Starting and leaving a job”).
  • Leave for more than four weeks – If you’re taking parental leave for more than four weeks, the law assumes your employer is able to keep your job open, unless they can prove:
    • that it’s not reasonable to get a temporary replacement because you occupied a key position in your employer’s business, or
    • that your position has become redundant.

Parental Leave and Employment Protection Act 1987, s 48

Note: When an employee is on parental leave, a replacement employee can be hired on a temporary basis. They must be told that the position is temporary.

What if I decide not to go back to work?

Parental Leave and Employment Protection Act 1987, s 46

If your job has been kept open but at the end of the leave period you don’t return to work, the law treats your employment as having ended at the start of the leave period.

What happens if my employer can’t keep my job open?

Parental Leave and Employment Protection Act 1987, s 36

If your employer notifies you that your job can’t be kept open during your parental leave, they must give you a preference for re-employment after the parental leave finishes. This means that during the six months (26 weeks) after your leave they must give you preference over other applicants for any position that’s vacant and that’s substantially similar to your old position.

Can I be made redundant while I’m on parental leave?

Parental Leave and Employment Protection Act 1987, ss 40, 41, 51, 52

Yes. However, if you challenge the decision the employer must prove that the redundancy situation arose after they notified you (in response to your original parental leave notice) that your position could be kept open (see “Notifying your employer that you want to take parental leave” above). Your employer must also prove that there was no prospect they could appoint you to a vacant position that was substantially similar to your old job.

Your employer will also have to meet the usual requirements for any redundancy – that is, the decision and the decision-making process must have been fair and reasonable. The requirements for a fair process include, for example, consulting with you and giving you a chance to have input into the decision. For redundancies, see “Leaving or losing your job” in the chapter “Starting and leaving a job”.

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Employment conditions and protections

Where to go for more support

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide free initial legal advice and, depending on your situation, may also be able to provide ongoing support.

“Pregnancy Rights: Your legal options during and after pregnancy” (booklet)

This booklet contains practical answers to questions about pregnancy and the law, and includes information on sexual health and consent, options after a positive pregnancy test, healthcare, education, housing and more.

Order hard copies from:

Community Law Wellington and Hutt Valley

Phone (04) 499 2928

Email: publications@wclc.org.nz or visit www.communitylaw.org.nz to buy a copy or access free online

Ministry of Business, Innovation & Employment

www.employment.govt.nz

Free phone 0800 20 90 20, for general enquiries about employment relations, pay and holidays.

The Employment website of the Ministry of Business, Innovation & Employment publishes a range of publications on employment relations and minimum rights at work.

Labour inspectors

Labour inspectors monitor and enforce minimum employment conditions. To refer a problem to a labour inspector, you contact the Ministry of Business, Innovation & Employment on:

Free phone 0800 20 90 20

Worksafe New Zealand, Mahi Haumaru Aotearoa

www.worksafe.govt.nz

Free phone: 0800 030 040

Worksafe New Zealand’s website has a range of information and publications on workplace health and safety issues.

Parental leave payments

www.ird.govt.nz/topics/paid-parental-leave

The Inland Revenue website has information on parental leave payments.

Whistle-blowing (“Protected disclosures” by employees)

www.ombudsman.govt.nz

Free phone: 0800 802 602
Email: info@ombudsman.parliament.nz

The Office of the Ombudsman provides information and guidance to employees about making a protected disclosure.

New Zealand Council of Trade Unions, Te Kauae Kaimahi

www.union.org.nz

Phone: (04) 385 1334
Email: info@nzctu.org.nz

The NZCTU is the umbrella body for affiliated unions covering every job and industry in New Zealand. It can provide information about which union may cover the type of work you do.

Also available as a book

The Community Law Manual

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