By Lauren Drummond

An employer conducting an online digital marketing business has been ordered to pay compensation of $22,882 to a former employee after the Fair Work Commission (FWC) determined that she was unfairly dismissed.

The dismissal arose following a dispute about changes to the employee’s hours of work. The employer sought to vary the employee’s span of hours of work from 5 pm until 5.30 pm. The employee raised concerns about the extension to her hours of work because it would preclude her attendance at pre-paid pilates classes on Mondays and Wednesdays.

The employee proposed that on Mondays and Wednesdays she would work until 5:15 pm rather than 5:30pm, with a correspondingly shortened 45-minute lunch break on those two days.

In response, the employer sent the employee an email, which said:

“The business requires staff to be flexible and in particular the business needs to be responsive to client’s [sic] between the hours of 9 to 5.30, with a 1-hour lunch break.

[…]

If you still feel, you cannot and do not wish to sign, I need to find staff that will support the business as it grows and continually changes.”

The employee told the employer she was unable to sign the new contract. The employer’s director advised her in a further email that she was now on notice and that she would then no longer be employed by the business.

Previously, the employment relationship had been positive and included several pay increases to the employee’s salary, which resulted in the salary being raised from $50k to $70k during the employment period.

Personal leave

A further dispute arose during the notice period regarding the employee’s personal leave. The employee provided a medical certificate on the day following her dismissal to say that she was unfit to attend work. She had previously indicated to the employer that the dispute about the new employment contract had impacted upon her “stress levels”.

The employer refused to pay personal leave and alleged the employee’s actions were inconsistent with the medical certificate because she had attended work for a few days during the period the medical certificate had covered her absence and that she had been active on social media.

The Commissioner found the refusal to pay the employee’s personal leave resulted in her only being paid up to the date she was notified of the dismissal and effectively, resulted in the employee being summarily dismissed without notice.

The FWC stated there was no justification for the employer doing so, which had been provided with further medical evidence from her doctor clarifying the reason the certificate was back-dated and that he had advised the employee to rest and take some time away with friends to improve her health (which it seems she took as evidenced by the social media photos).

Decision

The FWC determined that there was no valid reason for the dismissal relating to the employee’s capacity or conduct. Further, the Commissioner stated that the reason for dismissal was not “sound, defensible or well-founded”.

In particular, there was no justification for the employer’s inflexible position regarding the proposed changes to the hours of works and refusal to accommodate the employee’s pre-paid commitment.

It was also noted that there was no satisfactory explanation of any particular business or commercial requirement for such a rigid approach. The FWC observed that employees are entitled to contest changes being introduced to the terms and conditions of their employment.

Furthermore, the FWC found:

• the notification of the dismissal by email communication was unnecessarily callous;
• the email stating: “I need to find staff that support the business” was an ambiguous statement and did not constitute the employer giving the employee an opportunity to respond to the reason for dismissal; and
• there was unreasonable refusal of a support person given the absence of any procedure involving discussion with the employee.

Lessons for employers

Employers should 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 result in constructive dismissal and expose the employer to risk of an unfair dismissal claim.

Employees are more likely to consent to changes to the employment contract in circumstances where there is also a pay rise or promotion on offer. Otherwise, if the change is resisted (and unless there is another legal source permitting the change such as an award or enterprise agreement), employers will need to find a way to negotiate an outcome that is satisfactory for both parties.

Employers cannot refuse to pay employees’ personal leave because they disagree with the medical certificate. If an employee is suspected of fabricating the certificate or there is evidence to suggest the certificate is inaccurate, it is important to conduct a separate investigation into the matter, such as gathering further information from the medical practitioner or directing an employee to attend an independent medical examination.