Employment Agreement

Written by Calum Woods and Lindsay Carroll, NRA Legal

In a recent application for relief from unfair dismissal, Commissioner Cribb considered circumstances where an employee requested changes to her working arrangements, and then resigned her employment when the employer was unable to accommodate those changes.

The employee argued that she was forced to resign her employment as a result of the employer’s conduct, or alternatively, because the employer’s proposal reduced her working hours and responsibilities, she had been constructively dismissed.

The Commissioner found that the employee was no longer able to perform her role on certain days that were reasonably required by the business, and resigned her employment during ongoing discussions with the employer.

The Commissioner held that the employee had not been forced to resign her employment, and as such she was not entitled to protection from unfair dismissal.  Furthermore, the Commissioner held that because the employee initiated the changes to her working arrangements, she had not been demoted by the employer and had not been constructively dismissed.

Julie v Bromley-Hoult v Belgravia Health & Leisure Group Pty Ltd T/A Ascot Vale Leisure Centre [2018] FWC 4979

The Facts:

Ms Julie Bromley-Hoult was employed by Belgravia in the position of Customer Service Operation and had two main areas of responsibility: Program Coordinator (classified at a higher level) and Customer Service.

On Friday, 19 January 2018 Ms Bromley-Hoult enrolled in a Bachelor of Nursing and on Monday, 22 January 2018, she informed Ms Aylie Spence, the Centre Manager, that she had been accepted into the program. The following day, Ms Bromley-Hoult provided Ms Spence with a proposed roster of hours she was able to work.

There was some dispute regarding the discussions between Ms Bromley-Hoult and Ms Spence.

It is relevant to note that Ms Bromley-Hoult was notified that she could not maintain her position as Program Coordinator as it required her to work on certain days, and these could not be changed as they involved working with sensitive individuals.

Following these discussions, Ms Bromley-Hoult resigned her employment and subsequently made an application for unfair dismissal to the Fair Work Commission (FWC).

Ms Bromley-Hoult’s application was based on two contentions.

  1. The removal of her Program Coordinator Role and reducing her rostered hours was intended to or had the probable result of, bringing her employment to an end; and
  2. Alternatively, she was demoted, involving a significant reduction in her duties and remuneration, and this represented a reputation of her employment contract.

Forced resignation or constructive dismissal?

Did Ms Bromley-Hoult resign on her own behalf or was it the conduct of Belgravia that initiated and forced her resignation? Did the reduction in her duties represent a constructive dismissal?

In considering whether a resignation is “forced”, the Commission will consider all of the relevant circumstances giving rise to the resignation, and not just the conduct of the employer.

Commissioner Cribb was not satisfied by either of Ms Bromley-Hoult’s contentions.

Firstly, the Commissioner held that Belgravia’s reasonable refusal of Ms Bromley-Hoult request to change her working arrangements did not “force” her to resign her employment.

The inability of Belgravia to accommodate Ms Bromley-Hoult’s university commitments was reasonable based on the needs of the business, and in particular as her duties could not be performed on alternative days as she had proposed.

The Commissioner also noted Belgravia’s offer to accommodate the changes by offering her additional hours in an alternative role. This may be contrasted to a situation where the removal of the Program Coordinator role and reduction of hours was initiated by Belgravia.

Secondly, Commissioner Cribb was not persuaded Ms Bromley-Hoult’s second contention that Belgravia had reduced her duties and responsibilities, and this represented a demotion and repudiated her employment contract.

The Commissioner held that it was Ms Bromley-Hoult herself who was no longer able to perform her duties, and that the proposed changes in her working arrangements were brought about on her own initiative.

Commissioner Cribb concluded that a reduction in hours and removal of Ms Bromley-Hoult’s role as Program Coordinator did not result in a constructive dismissal.

What does this mean for employers?

Where an employee’s availability changes due to something such as university commitments, it is reasonable for employers to accommodate this insofar as their business allows.

In certain circumstances, where a business cannot reasonably accommodate these changes and the employee resigned their employment, the employee may not be entitled to protection from unfair dismissal.

Where an employee is unable to perform the inherent requirements of their role (such as no longer being able to work on certain days), this may provide grounds to terminate their employment. However, unlike in circumstances where an employee decides to leave the business on their own initiative, there are strict legal requirements that must be observed.

Employers should be wary of reducing hours and changing employees work responsibilities where the change in availability is not initiated by the employee. Implementing such changes can be fraught with risk.

To speak to one of our workplace advisors about managing changes to rosters, call the NRA today on 1800 RETAIL (738 245).