Reduction of Casual Employee’s Shifts Results in Unfair DismissalSeptember 21, 2017
The Fair Work Commission (’the FWC’) in Roxana Balgowan v City of Sydney RSL & Community Club Ltd  FWC 3798 recently ordered the employer to pay $13,566.00, the equivalent of 16 weeks pay, as compensation to a casual employee after finding it had unfairly dismissed her by significantly reducing her shifts.
Roxana Balgowan (‘the Applicant’) was a casual employee that commenced employment on 26 October 2015 as a Customer Service Attendant at the City of Sydney RSL & Community Club Ltd (‘the Respondent’).
The Applicant was engaged on a regular and systematic basis for an average of approximately 30 hours per week performing a variety of general hospitality duties as well as cash handling duties.
In December 2016, the Applicant was given a warning about a poor cash handling incident that occurred on 20 December 2016 while working in the ‘change box’ involving a float shortfall of $188.75.
On 5 April 2017, there was a further cash discrepancy while the Applicant was working in the ‘change box’ involving a $100 float shortfall. On 10 April 2017, the HR Manager had a meeting with the Applicant whereby the Applicant was told she would be removed from rostered ‘change box’ shifts and required to undergo training before being provided with any further ‘change box’ shifts.
The Applicant and the HR Manager then gave conflicting testimony of the outcome of the meeting whereby the Applicant contended that she did not resign whereas the HR Manager contended that she did. The Applicant claimed unfair dismissal and the Respondent raised a jurisdictional objection that the Applicant was not dismissed.
The FWC decided that the relevant question for determination was whether the Applicant was entitled to reject the altered employment conditions imposed by the HR Manager at the 10 April 2017 meeting and therefore resign on the basis of those changes to the employment. If so, the FWC was of the view that these circumstances would constitute a constructive dismissal whereby it was the actions of the Respondent that essentially compelled the Applicant to resign.
While the FWC noted the Respondent’s reason for the Applicant’s removal from the ‘change box’ was the second cash handling discrepancy and the need to undergo training, an important consequence of this change was the reduction of at least 75% of the Applicant’s remuneration. Further, the reduction in remuneration as recorded by the notes of the HR Manager was for a period of “up to 3 months.”
On this basis the FWC found the changes imposed on the Applicant’s employment by the Respondent were so exceptional that this constituted a repudiation of the employment thereby entitling the Applicant to treat the employment to be at an end. Consequently, it was found that the actions of the Respondent had brought the employment to an end and the Applicant was constructively dismissed.
The FWC subsequently ordered the Respondent to pay the Applicant 16 weeks compensation of $13,566.00 based on the Applicant’s remuneration of approximately $847.89 per week.
Lessons for Employers
Employers need to be aware that a significant reduction in the hours of work offered to a casual employee with regular and systematic hours who is eligible to claim unfair dismissal may actually amount to a dismissal under the FW Act.
If an employer is considering significantly reducing the hours of an eligible casual employee with regular and systematic hours due to performance reasons, it would be prudent to first undertake a performance management process.
If you have any questions about the dismissal of casual employees, please contact a Livingstones Consultant on (07) 3833 1200 or email us at firstname.lastname@example.org.
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