Does your employee have the right to dictate their conditions ?

A recent Fair Work Commission decision illustrates the importance of responding reasonably to the radically altered situation of an employee. Does your employee have the right to dictate their conditions ?

When a staff member is faced with drastic changes in their personal life, it’s important that as an employer you respond with kindness and empathy, but does your employee have the right to dictate their conditions ?  In a recent case the Fair Work Commissioner found that the employer had made a clear attempt to negotiate with the employee and that when a suitable arrangement could not be found, the employer had not been unreasonable in its refusal to meet the employees requested hours and leave arrangements.

Phillips v Integrated Medical Solutions Group (IMS) – https://bit.ly/2n1KBVh

Ms Phillips, a 24-year-old medical receptionist, alleged she had been unfairly dismissed when her employment ceased due to the inability of her employer to accommodate her request for a change in hours.

Phillips was a full-time employee when her mother became ill and then passed away, leaving Phillips as carer to her 11-year-old sister. Phillips began a period of unpaid leave and claimed that during a meeting with HR she was told that she would “always have a job to return to”, and upon her return to work, she could work from 10:00am-2pm, Monday-Friday, instead of her usual hours of 8-6pm. The head of HR disputed this ‘promise’ claiming she advised Phillips the request would be subject to the approval of the practice owner.

Three months after her mother’s death, Phillips advised the head of HR that she was prepared to return to work under the condition that her hours would be changed (as above), to allow her to drop off and collect her sister from school, and that she would need to take one week off work each school holidays to care for her sister, and three weeks off over summer – stating that she had suggested she could take these holidays as unpaid leave. Countering this, the head of HR told the Commission that Phillips had informed her she would require all of the school holidays off work, and had not offered to take this as unpaid leave. Ms Phillips was advised that the employer could not accommodate her requests but could offer her alternative reasonable hours from 8:30am to 2:30pm, Monday to Friday, and she would be required to apply for annual leave, as per policy, for the school holiday periods. Alternative, Phillips was offered “casual employment on the standard terms.” She was also informed that she could return to work in her usual, full-time role. Phillips still wasn’t happy with these options and kept claiming the verbal ‘promise’ made by the head of HR when her mother first became ill. The head of HR, who was sympathetic to Phillip’s situation, outlined that there clearly was a position for Phillips, in fact she’d been given three different options, they just couldn’t operate around Phillip’s proposed hours. If Phillips was unable to take on one of these options, the head of HR said IMS would assume that Phillips “did not intend to return to work”.

On 2 May, Phillips was given until May 8 to respond if she wished to return to work however the employee refused to compromise. The head of HR prepared a separation certificate at Phillips’ request, recording the reason for the separation as, “employee ceased work voluntarily” however Ms Phillips did not agree and argued that she had been dismissed at the employers initiative and not resigned.

The decision.

Commissioner Hunt noted the many emails sent by Phillips stipulated that she was available to work between 10:00am and 2:00pm only. Hunt found that the practice had, “repeatedly, reasonably and professionally corresponded” with Phillips about the reduced working hours it could accommodate, and, alternatively, “invited Ms Phillips to return as a casual employee.” As a result, the Commissioner found that there was no conduct on IMS’s part that amounted to a dismissal on IMS’s initiative. Phillips, it was found, “had a substantive job to return to and she chose not to accept the respondent’s reasonable and accommodating hours of work given her personal circumstances.”

Ultimately, Commissioner Hunt felt that the practice had not been unreasonable in its refusal to meet Phillips’ requested hours and leave arrangements, and had responded appropriately to Phillips’ requests.

Lessons for employers

Phillips’ case is illustrative of the importance of employers taking reasonable steps to try to accommodate an employee’s changed circumstances, but that they are allowed to factor in the business’s operational needs. Perhaps most importantly, this case demonstrates that the best approach is always to engage in frank and open dialogue with an affected employee, as well as:

• Offering alternative working arrangements that are reasonable for both parties.

• Affording the employee an opportunity to discuss suitable working arrangements.

• Advising the employee of decisions regarding their employment and affording them an opportunity to respond.

The case also emphasis once again the importance of keeping a record of all HR related conversations with staff members either by writing memo’s or in a confirmation email.

 

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at kim@bailiwicklegal.com.au

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The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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