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Employer wins right to have case reheard regarding proposed reduction of casual’s shifts

March 01, 2018

By Lindsay Carroll, Director and Sid Sidhu, Workplace Relations Advisor, NRA Legal

Earlier in 2017, the Fair Work Commission (‘FWC’) determined that the City of Sydney RSL and Community Club had constructively dismissed a casual employee, when it denied the employee from working further “change box” shifts and reduced her average weekly hours by 75 per cent as a result of a second cash discrepancy.

Although there was no written contract, Commissioner Cambridge held that the casual’s “employment conditions”, namely working an average of 30 hours per week and performing cash handling duties from time to time, were ongoing terms of the employment contract.

Consequently, by imposing a change in the employment conditions, the employer repudiated the contract and gave the employee no reasonable choice but to resign. On that basis, the FWC upheld the employee’s unfair dismissal claim and awarded the employee $13,566 compensation.

However, the employer was subsequently granted permission to appeal in October 2017, arguing that as a casual employee had no entitlement to work 30 hours per week or “change box” shifts. That appeal has now been decided.

The decision on appeal

The earlier decision of the FWC was quashed by the Full Bench on the basis that the assumption made by Commissioner Cambridge (that the employee had a contractual entitlement to work 30 hours per week, amongst other things) was deemed erroneous and inconsistent with the fundamental nature of casual employment.

Acknowledging the changing landscape and practices of employers, the Full Bench held that “casual employees now frequently work for a single employer on regular hours over extended periods.”

Despite this, the Full Bench maintained the common law position that casuals engaged for an extended period of time will be engaged under a series of separate contracts of employment for each shift.

“The number of shifts that the casual employee might in the future be requested to work, the location at which that work would be undertaken and the duties to be performed in undertaking that work in the future, were matters of expectation, but not terms of the contract of employment…”

Importantly, the employee was rostered to work an average of 30 hours per week but this would fluctuate according to the needs of the business.

On that basis, the Full Bench held that it was not open to the Commissioner to conclude that the proposed alteration to the employee’s shifts amounted to a repudiation of the contract.

The matter has now been remitted to Commissioner Saunders for determination.

What does this mean for employers?

The Full Bench’s decision in this matter confirms that even in cases of extended periods of engagement, employment conditions such as the hours of work, location of work and duties to be performed will not necessarily be implied into a contract of employment.

However, there is still a need to exercise caution in this space. Rostering changes may be necessary from time to time due to operational requirements in an employer’s business however, to avoid the risk of legal claims, employers should ensure that a robust business case supports any such changes (and that any significant change is made in accordance with any consultation obligations of the employer).

You can read the full decision here.

NRA Legal knows the ins and outs of managing employee exits, and can help you achieve this by reducing the risk of legal claims.

To find out more, call our Workplace Advisors on 1800 RETAIL (738 245).

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