Requirement to change hours could be a forced resignation

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Requirement to change hours could be a forced resignation

The Australian Industrial Relations Commission has ruled that a woman who was told that she would have to change her working hours could lodge a claim of unlawful termination of employment due to family responsibilities.

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2/4/07

The Australian Industrial Relations Commission has ruled that a woman who was told that she would have to change her working hours could lodge a claim of unlawful termination of employment due to family responsibilities.

The woman had worked for almost 10 years as a physiotherapist in a medical practice, working for two days per week from 9am to 5pm. The employer knew that her children's childcare arrangements were only available until 6pm — the standard closing time for most childcare centres. However, the employer insisted that she would have to change her finishing time to 7pm each day.

Unlawful termination claim

Because it was not possible for the employee to make economically viable childcare arrangements that catered for the 7pm work finish time, she left her employment and lodged a claim of unlawful termination on the ground of family responsibilities. The employer argued that she had simply resigned from the job, which meant that the Commission did not have jurisdiction to deal with her claim.

The Commission rejected that submission, finding that the employer's demand left the employee with no option but to resign because of her family responsibilities, in which case the Commission did have jurisdiction over her claim.

Should the claim have to be arbitrated, it will go before the Federal Court rather than the Commission, as it concerns dismissal for a prohibited reason, rather than unfair dismissal.

Samantha Jane Hurley v Rosemary Gallagher and Associates Pty Ltd [2007] AIRC 184 (13 March 2007)

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