Lawful, reasonable roster changes did not force resignation: FWC

An early childhood educator has failed to convince the Fair Work Commission she was constructively dismissed when she resigned in the face of proposed changes to her hours which would have been “an inconvenience” to her, with Deputy President Bell instead finding she ceased work voluntarily in response to roster changes which were “well-founded and reasonable” and permitted by the prevailing enterprise agreement.

The educator tendered her resignation “with a heavy heart” on 1 May 2023, on the back of a long-winded negotiation process which had commenced in late-2022, regarding proposed roster changes. The desired changes, which were to be implemented for 2023, applied centre-wide and impacted all staff members to some extent. In reference to the educator, the intended change would have altered her typical working day (for 2022) of 9.00am – 3.00pm or, 9.15am – 3.15pm, to 10.10am – 4.10pm; an adjustment the educator insisted “would make school care for her children difficult” and was being orchestrated “deliberately” because of “personal grudges”.

The educator maintained her position that she could not comply with the proposed change to her hours of work because of her carer’s responsibilities to her children and remained steadfast in her belief that the amended roster had been devised for some improper purpose, vaguely linked to events in mid-2022, wherein concerns regarding the educator’s performance were raised with her. Various accommodations were made for the educator in January 2023, which meant she was not expected to adhere to the amended roster until early-February, by which time discussions broke down to the point that the educator requested paid and unpaid leave which extended through to her resignation in May. Communication continued during the educator’s leave, which included the employee escalating her concerns regarding her perceived unfavourable treatment to the CEO and lodging a worker’s compensation claim (which was unsuccessful).

The claims made to the CEO, which Deputy President Bell described as, “unhelpful at best and counterproductive at worst”, were not substantiated and resulted in a mediation meeting, which the educator participated in but it “did not arrive at any outcome satisfactory” to her given the “critical issue” of concern was the new roster. The educator repeatedly rejected solutions proposed by the employer, including her working shorter five-hour shifts, with the employee rigidly wanting to adhere to receiving daily six-hour shifts, generally scheduled as 9.00am – 3.00pm. After having been absent on approved leave from 7 February to 28 April, the educator’s resignation was tendered when it was made clear the employer would “commence an unsatisfactory work performance process on the basis of non-attendance without approved leave” if she failed to attend to work the amended roster on 1 May. The educator did not seek to retract her resignation at any time.

In upholding the employer’s jurisdictional objection to the educator’s general protections dismissal application and finding her resignation was not solicited, Deputy President Bell rejected the educator’s claim that the desired roster changes were pursued “for any improper purpose, or for a personal grudge, or for any other reason than the changes were needed to better ensure the desired coverage of children and for sound operational reasons”.

Deputy President Bell accepted that the educator had “more legitimate” reasons for wanting to stay on her start and finish times from 2022, “being after-school activities for her children”, and that she had “exaggerated the reasons” for not being able to comply with the amended roster for 2023. The Deputy President assessed the employer’s reasons for proposing changes to the roster for 2023 to be “soundly based and not affected by any of the improper motives that [the educator] alleged”. Deputy President Bell went further to observe, “the employer was entitled to change [the educator’s] rosters, both under her contract of employment and the enterprise agreement” adding, “there was no design or purpose by the employer to effect a resignation and it was acting lawfully and reasonably by its implementation of the roster changes”.

Having determined that the termination of the educator’s employment was not “forced”, or at the initiative of the employer, Deputy President Bell dismissed the application.

De Silva v Ku Children’s Services [2023] FWC 1835 (14 August 2023)