Here’s an example of how not to handle a roster change. An employee who had childcare responsibilities was found to have been unfairly dismissed after the Fair Work Commission said demands by the employer were contrary to the General Retail Industry Award 2010.

Here’s an example of how not to handle a roster change. An employee who had childcare responsibilities was found to have been unfairly dismissed after the Fair Work Commission said demands by the employer were contrary to the General Retail Industry Award 2010.

The employee commenced as a casual shop assistant in February 2012 and became a full-time employee in May 2013. During the course of his employment he was entrusted with additional responsibilities – he opened and closed the business, was given the keys to the safe and had seniority over the casual sales assistants. The applicant enjoyed his work and got on well with the owner and the store manager.

The applicant was divorced, and had access to his three children every second weekend. In the period leading up to March 9, 2015, the applicant worked a set roster of Wednesday to Saturday inclusive.

In late February 2015, the store manager showed the applicant a draft roster for the period March 2, to May 3, 2015 (the new roster). The first week of the roster reflected the applicant’s standard Wednesday to Saturday shifts. In the next eight weeks of the roster the applicant was rostered to work six Sundays.

The change in roster was to enable the store manager to work Saturdays. More staff were rostered on Saturdays than any other day, and the manager believed this roster would help boost productivity.

A disputed conversation took place on April 20, 2015. The employee said his boss would not change the roster and that he was forced to resign so he could spend time with his children. The boss, however, said the employee threatened to resign and go to another job if the roster was not changed.

The Commission doubted aspects of both the employer’s and employee’s version of events. Ultimately, the commission found the employee’s statement, “I don’t want to give two weeks’ notice” amounted to a threat to resign in the event the employer did not change the roster. The employer called his bluff.

The employee’s conduct and statements before, during and after the exchange on April 20, 2015, support a finding he effectively tendered his resignation giving two weeks’ notice. He was not required to work out the notice period and was paid the value of two weeks’ wages for this period.

Did the applicant resign because he was forced?

An important consideration as to whether the employer’s conduct forced the resignation of the employee was the employer’s failure to abide by clause 8 of the General Retail Industry Award 2010. That clause relevantly provides:

8. Consultation

8.1 Consultation regarding major workplace change

8.2 Consultation about changes to rosters or hours of work

(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.

(b) The employer must:

(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or childcare responsibilities); and

(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.

(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.”

The Commission said, “The impact of the roster change on the applicant’s ability to spend time with his children is precisely the sort of matter contemplated by sub-clause 8.2, and is exactly what is meant by “family and caring responsibilities”.

In addition, sub-clause 28.9 of the Retail Award provides the roster period cannot exceed four weeks – which the employer did not comply with. In the Commission’s view the actions and inactions of the respondent represent a course of conduct that left the applicant with no choice but to resign.

Where roster changes are proposed, the relevant award clauses must be consulted to ensure proper consultation is undertaken. Roster changes can affect employees’ family responsibilities, sometimes with unforeseen consequences, as this employer discovered.