Sacking for refusing to accept changes unfair

An employer was ordered to pay compensation of $22,882 to a former employee after the Fair Work Commission (Commission) determined that she was unfairly dismissed.

The employer sought to vary the employee’s hours of work from 9.00am - 5.00pm (with a half hour lunch break) to 9.00am - 5.30pm (with a one hour lunch break) but the employee refused to accept the proposed changes to her hours of work because it would preclude her attendance at pre-paid pilates classes on certain days. 

The employee proposed that on Mondays and Wednesdays she would work until 5.15pm rather than 5.30pm, with a correspondingly shortened lunch break on those two days.

The employer said the business requires staff to be flexible and in particular the business needs to be responsive to clients' demands between the hours of 9.00am to 5.30pm and if the employee cannot accept that, the employer will need to find staff that will support the business as it grows.

The employee refused to sign the amended contract and the employer terminated her employment.

The Commission determined that “the reason for dismissal was not sound, defensible or well-founded” and in particular, there was no satisfactory explanation for the employer’s rigid approach regarding the proposed changes to the hours of works and refusal to accommodate the employee’s pre-paid commitment.  The Commissioner stated there was “not a valid reason for the dismissal”. 

The Commission observed that employers may not unilaterally make changes to an employee’s terms and conditions and employees are entitled to contest changes being introduced.  The Commission found that there was no satisfactory explanation of any particular business requirement for such a rigid approach. 

The Commission found the notification of the dismissal by email was “unnecessarily callous”.

The lesson for employers is to be careful when introducing changes to the workplace that directly affect the terms and conditions of employment. An attempt to unilaterally vary the employment contract without consent may expose the employer to risk of constructive / unfair dismissal claims.

[Knutson v Chesson Pty Ltd (2018) FWC 2080]

Disclaimer: the short guidelines above are not legal advice and for more information on variations to employee terms and conditions call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email necalegalwa@ecawa.org.au.