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Parental Leave and Employment Protection Act 1987

Rights and obligations after commencement of parental leave

41: Presumption that employee's position can be kept open in the case of other periods of parental leave

You could also call this:

“Your job should usually be kept open when you take parental leave”

When you take parental leave, your employer should try to keep your job open for you until you come back. This applies to all types of parental leave except the ones mentioned in section 40. Your employer is expected to do this unless they can prove it’s not possible.

There are two reasons why your employer might not be able to keep your job open. First, if your job is very important (a key position) and it’s not practical to find someone to replace you temporarily. Second, if your job no longer exists because of redundancy.

To decide if your job is a key position, your employer can think about how big their business is and how much training or special skills your job needs.

When we talk about your job, we mean the job you usually do. If you were moved to a different job temporarily because of your pregnancy (as mentioned in section 16), we’re not talking about that temporary job.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM120698.

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40: Presumption that employee's position can be kept open in the case of first period of parental leave not exceeding 4 weeks, or

“Your job should be kept for you if you take up to 4 weeks of parental leave for the first time”

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42: Employer's obligations in respect of remuneration and holiday pay, or

“Your pay and holiday pay when you take time off to have a baby”

Part 5 Rights and obligations after commencement of parental leave

41Presumption that employee's position can be kept open in the case of other periods of parental leave

  1. Where an employee takes a period of parental leave (other than a period of parental leave referred to in section 40) the employer shall be presumed in any proceedings under this Act, to be able to keep open for the employee, until the end of the employee's parental leave, the employee's position in the employment of the employer unless the employer proves that the employee's position cannot be kept open—

  2. because a temporary replacement is not reasonably practicable due to the key position occupied within the employer's enterprise by the employee; or
    1. because of the occurrence of a redundancy situation.

      1. In determining whether or not a position is a key position for the purposes of subsection (1)(a), regard may be had, among other things, to—

      2. the size of the employer's enterprise; and
        1. the training period or skills required in the job.

          1. The reference in subsection (1) to the employee's position in the employment of the employer shall be a reference to the position ordinarily held by the employee, and shall not include any position to which the employee was temporarily transferred under section 16.

          Compare
          • 1980 No 162 s 16