Meet me halfway? FWC criticises employer’s inflexible refusal of Pilates

In commentary that is particularly fitting for the story behind it, the FWC has found an employer was unreasonably inflexible when it dismissed an employee who had requested to finish work 15 minutes early to attend prepaid Pilates classes.

In Khutson v Chesson Pty Ltd T/A Pay Per Click [2018] FWC 2080, the employee argued that her dismissal was unfair because she refused to sign a revised employment contract that, amongst other things, had sought to change her working hours such that she would be unable to attend Pilates classes that she had already paid for.

The employer sought to change the employee’s ordinary hours from 9:00am – 5:00pm (with a half hour break) to 9:00am – 5:30pm (with an hour break). The employee was happy to adjust to the later finish time, however, advised her employer that she had prepaid Pilates classes on Mondays and Wednesdays. The employee asked if she could finish at 5:15pm on those days, with a correspondingly shorter lunch break.

The employer refused this arrangement and stated that the business’ clients required a high level of service (meaning later finishing times) and that the business needed staff who were flexible and responsive to the adjusted working hours. The employee was put on notice that if she could not or refused to sign the revised contract, the employer “need[ed] to find staff that will support the business as it grows and continually changes”.

The employee refused to sign the contract and accordingly her employment was terminated.

Ultimately, the FWC found that there was no satisfactory explanation of any business or commercial requirement for such a rigid approach to the later finish times. The employer’s reason for the dismissal was therefore not sound, defensible or well-founded.

In finding the dismissal unfair, the FWC criticised the employer for adopting an inflexible position on the matter, despite the employee providing a reasonable explanation for the arrangement and agreeing to work later every other day. The FWC found it regrettable that the employer did not pursue any further compromise even if for a fixed period of time which might have coincided with the prepaid Pilates classes.

The FWC considered that what appeared to be an almost trivial matter had now become an “issue” demonstrating the employer’s dissatisfaction that the employee had challenged various terms of the revised contract”.

The FWC also criticised the employer for:

  • Refusing to pay the employee personal leave after she submitted a medical certificate during the notice period, which rendered her dismissal a summary dismissal; and
  • Notifying the employee of her termination by email – an act it described as “unnecessarily callous” given the seriousness of the subject matter and despite the employer being a small business which permitted some degree of informality.

The employer was ordered to pay compensation to the employee to the value of $22,882.00.

Lessons for employers
When seeking to implement changes that will affect employees’ working arrangements, it is imperative that employers ensure:

  • Any proposed changes are made for legitimate business reasons; and
  • Careful consideration is given to any genuine personal circumstances that might be raised by affected employees.

Taking these steps will reduce the risk of employee resistance to any operational changes and potential loss of valuable employees. Obviously, employees also need to be reasonable in understanding that from time to time changes may need to be made to business operations and be supportive of those changes.


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.

02 9256 7500 | sydney@workplacelaw.com.au

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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