A digital marketing agency in Sydney has been ordered to pay a former employee $23,882 after it dismissed her when she refused to sign a new work contract that changed her hours by half an hour each day because this clashed with her pre-paid pilates classes.
The Fair Work Commission heard this month that the online campaign manager at digital agency Pay Per Click was fired after three years with the business in November 2017, after she refused to sign a contract that changed the company’s standard operating hours from 9:00am to 5:00pm with a half-hour lunch break, to 9:00am to 5:30pm with a one hour lunch break.
The reason for the worker’s objection was she had pre-paid for pilates classes on Mondays and Wednesdays and the extended hours would clash with these classes. She suggested to the employer she finish at 5:15pm on those days and have a 45 minute lunch break, in order to be able to make the classes in time.
The worker said she would not be able to sign the new contract unless an accommodation was made on this front. However, the employer rejected the offer of a compromise and on November 6, sent an email to the worker saying she had been dismissed and was to work out her notice period.
In bringing unfair dismissal proceedings, the employee argued she should not have been fired because her dismissal had nothing to do with conduct or performance but instead centred around changes to her employment conditions, despite her having put forward a compromise option.
Pay Per Click argued it had genuine operational reasons for requesting staff to change their hours, given they were required to be able to respond to client queries until 5:30pm to receive “excellent customer service”.
The Fair Work Commission was critical of the business, and said it was unfortunate that the employment relationship had broken down because of a dispute over whether the worker could leave 15 minutes early on two days of the week. Fair Work Commissioner Ian Cambridge said in his decision it was regrettable the business didn’t pursue a compromise, such as allowing the worker leave early on those days up until the date that her pre-paid pilates classes had finished.
“Essentially, the employer had expectations of more unquestioning compliance from the applicant,” the commissioner said of the company’s approach to the new hours.
“There was no defensible explanation for why the employer’s business could not accommodate the applicant leaving work 15 minutes earlier on two days of the week, particularly if such an arrangement might have some fixed period of operation.”
Finding the dismissal unfair, the commission ordered the business to pay $22,882 in compensation. SmartCompany contacted Pay Per Click but the business declined to comment on the case. It’s understood the company is appealing to Commission’s decision.
Time and consultation key
Cases like this one are a reminder for employers they must make it clear when they are seeking to balance operational needs with reasonable requests from employees, says managing director of Workplace Law, Athena Koelmeyer.
“In my experience, these problems are usually always fixed with time, by giving people enough notices of the changes,” she says.
However, it also falls to employers to ensure they listen to and document responses to employees when they raise concerns over a change in hours. For example, workers have a right to discuss changes in full-time work hours if these changes clash with things like childcare commitments, she says.
“You are not necessarily able to unilaterally declare hours of work are changing. That’s where consultation elements are critical,” says Koelmeyer.
From the moment they bring on a first staff member, employers must keep in mind that they have a responsibility to work with employees when discussing significant changes, she says. Changes to ordinary hours will almost always have some impact on staff, meaning businesses must engage with their workers before making a final decision.
“Unfortunately, the moment you engage your first employee, these things become a conversation,” she says.
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