51Special defences relating to dismissal during parental leave

1. 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—

2. that,—
   1. in the case of a period of parental leave to which section 40(1) 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), the employer was unable to keep the employee's position open; or
   2. in the case of other periods of parental leave, on the ground of circumstances (of the type referred to in section 41) that occurred in the employer's business after the employer gave the employee notice in terms of section 36(1)(c)(i), the employer was unable to keep the employee's position open; and
3. 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
4. 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.

Compare

• 1980 No 162 s 29