Employer claims changes well-intended due to worker's health issues
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a disability support worker and her former employer, a disability and health care services provider in Western Australia.
The worker claimed that she was forced to resign from her position due to her employer's conduct of changing her contract terms, which left her with no real choice but to leave her job.
In this case, the FWC had to determine whether the worker's resignation was a dismissal initiated by the employer and if so, whether the dismissal was harsh, unjust, or unreasonable.
Background of the case
The worker had been employed as a disability support worker since May 2015. Following two heart attacks in 2019 and 2022, the employer proposed changes to her working arrangements upon her return to work in January 2023.
The worker lodged a grievance about her treatment and working hours on 7 March 2023, and her doctor informed the employer of her workers' compensation claim on 10 March 2023.
From this point on, the worker was absent from work due to certified unfitness. On 1 May 2023, she resigned from her employment, effective immediately.
Unilateral changes in worker’s contract
The worker contended that the employer terminated her employment on its own initiative by unilaterally varying her contract, reducing her working hours from 76 to 60 hours per fortnight without her agreement.
She argued that this constituted a repudiation of the employment contract, and combined with other factors such as being removed from her preferred night shift roster, rostered at a different work site, and the employer's failure to address her grievance, she was left with no real choice but to resign.
The employer maintained that the worker had resigned freely and that the proposed changes to her working arrangements were part of a consultation process to address her safety concerns, domestic responsibilities, and health issues.
The employer accepted that it did not respond to the worker's grievance but explained that this was due to advice from its workers' compensation insurer. It argued that between January and May 2023, it had not done anything to give rise to the worker's view that she had no option but to resign.
FWC’s consideration
The FWC found that the employer's proposal to reduce the worker's hours was not communicated as part of a consultation process, and it was reasonable for her to proceed on the basis that the employer intended to unilaterally reduce her contract hours.
The FWC also found that the employer's actions, such as moving the worker from her preferred night shift and changing her work site, contributed to the distress she experienced and her decision to resign.
The case reminded employers that unilateral changes to an employee's working conditions, even if unintended, can lead to a finding of constructive dismissal.
Employers must be mindful of the way they communicate proposed changes and ensure that genuine consultation occurs. The decision also highlighted the importance of addressing employee grievances promptly and fairly, as a failure to do so can contribute to a finding that an employee was forced to resign.
"The cumulation of these matters caused [the worker] distress and forced her resignation. Despite a lack of any ill intent on the part of [the employer], the changes to hours of work on its own would likely sustain a finding of forced resignation, but when taken with [the employer's] treatment of [the worker] over her grievance, her workers' compensation claim and her working arrangements, these factors forced [the worker] to resign," the decision said.
The FWC determined that the worker's dismissal was unjust because, through no fault of her own, she had no option other than to resign. It found that reinstatement was not appropriate and ordered the employer to pay the worker compensation.
The employer’s appeal
The employer appealed the decision, advancing several grounds of appeal. The employer challenged various factual findings and argued that the FWC had misapplied legal principles in determining whether the worker had been dismissed and whether reinstatement was appropriate.
However, the Full Bench of the FWC found no arguable case for appealable error in the original decision.
It concluded that the correct legal principles had been applied and that the findings were based on a balanced consideration of the evidence.
The Full Bench also found that the appeal did not attract the public interest, as it did not raise issues of importance or general application, and the decision did not manifest an injustice.
