One of the logistical challenges often faced by employers is the management of rosters and employee working hours. There are a number of factors to take into consideration when it comes to this, such as an employee’s availability, changing circumstances and the particular needs of the business.
It can be difficult for employers to balance these interests but a recent decision of the Fair Work Commission (FWC) has shown support for employers who make reasonable attempts to accommodate any changes in an employee’s availability – even if they are unable to accommodate all changes exactly as the employee requests.
In Bromley-Hoult v Belgravia Health & Leisure Group T/A Ascot Value Leisure Centre  FWC 4979, the FWC considered an employee’s claim that she was forced to resign from her role as a Customer Service Operator at a leisure centre because her employer did not accept her request to vary her working hours after she enrolled in university.
The employee worked in two roles from Mondays to Fridays – 15 hours per week as a Program Coordinator and 18.25 hours per week in Customer Service.
In January 2018, the employee advised her employer that she had enrolled in university and could no longer work on Mondays, Tuesdays and Wednesdays. The employee proposed an alternate arrangement in which she would work Wednesday evenings, Thursdays and Fridays, with the majority of her work to be performed in the more senior (and higher paid) Program Coordinator role.
The employer instead offered to maintain the employee’s current Customer Service hours as well as provide her with additional hours in that Customer Service role. The reason for doing so was that the programs that required coordination only operated on the days on which the employee was now unavailable. It would therefore be pointless for the employee to be coordinating programs when there were no participants to coordinate.
The employee subsequently resigned from her employment and, in her claim for unfair dismissal, argued that she had been forced to resign because her employer had refused to allow her to continue to work as a Program Coordinator.
The employer argued that it had not dismissed the employee, rather she had voluntarily resigned.
The FWC agreed with the employer. It found that the situation arose as a result of the employee unilaterally seeking to vary her contracted hours and the days on which she performed those hours. The employer’s refusal to accept the variation was reasonable because the change in the employee’s availability meant that she could no longer fulfil the role of a Program Coordinator.
The FWC considered that the employment relationship came to an end because the employee was dissatisfied with the employer’s response to her variation request and the employer had not forced the employee to resign.
Accordingly, because the employee resigned from her employment and it was not a forced resignation, the employee was not entitled to make a claim for unfair dismissal.
Lessons for employers
When an employee approaches their employer to advise of a change in their availability for work, it is important for the employer to consider a range of factors before making any decision to vary the employee’s hours of work. Factors to consider should include the reasons for the change, the employer’s ability to accommodate the change and the particular needs of the business. However, employers are not compelled to agree to vary working hours where there are legitimate reasons to decline the variation.
The reasons for an employer’s decision either way should be communicated to the employee clearly and without delay to minimise any risk of misunderstanding.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog
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