Australia: Changing The Working Hours Of Employees With Family Responsibilities: What Not To Do

The Australian Industrial Relations Commission has recently determined, in Samantha Jane Hurley v Rosemary Gallagher & Associates Pty Ltd [2007] AIRC 184, that an employee's unlawful termination application was within the Commission's jurisdiction in circumstances where the employee was forced to resign (or constructively dismissed) as a result of the conduct of the employer.

In making this decision, the Commission focused on the employee's family responsibilities, the previous accommodations that had been made by the employer with respect to the employee's family responsibilities and the employer's subsequent conduct which ignored or disregarded these accommodations.

Background

From January 1997 until her resignation in December 2006, Ms Samantha Hurley was employed as a physiotherapist by Rosemary Gallagher & Associates. At the time of her resignation, Ms Hurley worked two days per week, from approximately 9am until 5pm each day. Working during these hours allowed Ms Hurley to collect her five year old son from after school care and her three year old daughter from childcare, both of which closed at 6pm each evening. The principal of the physiotherapy practice, Ms Rosemary Gallagher, had previously agreed to allow Ms Hurley to work these hours, as she was aware of Ms Hurley's family responsibilities and the resulting restrictions on her availability.

Events leading to the resignation

On 18 December 2006, Ms Gallagher rang Ms Hurley to arrange a meeting to discuss Ms Hurley's working arrangements for the following year. Ms Gallagher subsequently cancelled this meeting, however at approximately 8pm that evening, Ms Gallagher arrived at Ms Hurley's home. Ms Hurley and Ms Gallagher's account of this evening meeting differed, however the Commission found Ms Gallagher said words to Ms Hurley with the effect of:

Ms Hurley told Ms Gallagher that she was not able to continue her employment under these terms and resigned.

The allegation

Ms Hurley alleged that Ms Gallagher's conduct, in insisting that she work extended hours after the childcare facilities closed, constituted unlawful termination in accordance with section 659 of the Workplace Relations Act 1996 (Cth). Ms Hurley relied on section 642(4) of the Act, which provides that an employee's resignation is taken to be at the initiative of the employer if the employee was forced to resign because of conduct engaged in by the employer, in this case the requirement that Ms Hurley work until 7pm.

Ms Hurley claimed that Ms Gallagher had previously agreed to allow Ms Hurley to work hours which allowed her to collect her children from their respective childcare facilities. Her husband travelled and it was not viable for the children's grandparents to collect her children every evening from childcare, as they lived in different suburbs and had other family responsibilities. Additionally, Ms Hurley submitted that it was not financially viable for her to hire someone to collect her children for her.

In response to Ms Hurley's unlawful termination application, Rosemary Gallagher & Associates lodged a motion to dismiss the application for want of jurisdiction, on the basis that the Ms Hurley had not been terminated, but resigned from her employment and was therefore excluded from making an application under section 659 of the Workplace Relations Act. Ms Gallagher submitted in support of this motion that she and Ms Hurley had discussed Ms Hurley's working arrangement for 2007 and Ms Hurley had decided to resign from her position because she did not want to work until 7pm.

The decision

The Commission found that Ms Gallagher's direction to Ms Hurley that her working hours for 2007 were to be extended until 7pm was conduct which had the effect of forcing Ms Hurley to resign. Prior to the commencement of the Work Choices legislation on 27 March 2006, constructive dismissal was a common law concept that required the employee to demonstrate conduct on the employer's part that was more than conduct which the employee found to be uncongenial or undesirable. Arguably the Commission's findings here is a diminution of the circumstances which may ultimately trigger constructive dismissal.

The Commission accepted that Ms Hurley had family responsibilities and no viable alternative with respect to the children's childcare arrangements and therefore, her resignation amounted to termination under section 642 of the Workplace Relations Act. The Commission therefore has the jurisdiction to conciliate Ms Hurley's unlawful termination application.

Interestingly, the company did not seek to rely on other exemptions under the Act, which would have the effect of barring Ms Hurley from proceeding with her claim. It is arguably that the action taken by the company falls within the operational requirements exemption under the Act.

Implications

This case emphasises that employee family responsibilities, and any accommodations previously provided by an employer with respect to these responsibilities, should be taken into account by employers when seeking to adjust employment arrangements of existing employees.

If an employer has previously acknowledged the restrictions placed on employee availability due to family responsibilities and has accommodated these restrictions, the Commission will look unfavourably upon moves to arbitrarily seek to adjust the employment conditions which result in the employee being unable to fulfil the requirements of the position, with resignation the only option for the employee.

An employer should consult and negotiate with employees before seeking to introduce changes to the terms and conditions of employment that may have the effect of impacting on an employee's family responsibilities. These consultations and negotiations should be carefully documented as a means of enabling the employer to demonstrate the steps taken by the company and that may be relied on by the employer, should the employee dispute the changes imposed.