Roster cuts amounted to constructive dismissal

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Roster cuts amounted to constructive dismissal

Drastically cutting an employee's work hours amounted to a constructive dismissal, the Fair Work Commission has ruled.

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A Sydney RSL that slashed a worker's shifts had repudiated the employment contract, the Fair Work Commission has ruled.

It rejected the employer's argument the worker had resigned after the shift cuts, instead finding the woman had been constructively dismissed.

Background


Roxana Balgowan was employed as a casual customer service attendant at the City of Sydney RSL & Community Club. She was engaged on a regular and systematic basis for about 30 hours per week. As part of her role, she often performed cash handling duties.

In December 2016, she was given a warning regarding a cash handling discrepancy. After completing a shift in the "change box", her float had a shortfall of $188.75. 

Ms Balgowan believed the discrepancy was caused by her failure to properly record a member's gaming pay-out on the computer system, which resulted in the amount being paid twice.

In early 2017 Ms Balgowan became aware she was pregnant and decided she would leave her employment at the end of July.

Second discrepancy


In April 2017 Ms Balgowan recorded another discrepancy after working a shift in the "change box". She reported it to a manager but was unable to explain the $100 shortfall. The matter was referred to the HR manager, Ms Faaui.

Following an investigation, Ms Faaui determined the shortfall was a result of Ms Balgowan's poor cash handling procedure. She then advised Ms Balgowan she was not required to attend her shift on April 8; instead she was to attend a meeting on April 10. 

At that meeting Ms Balgowan's offer to pay the missing $100 was rejected. Ms Faaui advised her that she would be removed from her rostered "change box" shifts and would be required to undergo training. This meant she was left with only one shift to work.

Ms Balgowan told Ms Faaui the reduction in rostered shifts was unfair and that she would go home. Ms Faaui claimed she had then verbally resigned, however Ms Balgowan steadfastly rejected that she ever used the word 'resign'. She also said there had been no suggestion of retraining in money handling procedures.

Later that evening, Ms Balgowan sent an email to Ms Faaui requesting her termination notice. Ms Faaui responded with a letter saying that the employer had accepted Ms Balgowan's verbal resignation provided on April 10. The letter also advised she was not required to work out a notice period and that she would be paid in lieu of notice.

Ms Balgowan responded by email, saying she was "shocked" by the contents of the email and that "I want to make it extremely clear that at no point in time did I put forward a verbal resignation... by not providing me with the usual regular shifts I had received from day one you have effectively terminated my employment".

On 28 April Ms Balgowan send a further letter to Ms Faaui, which was headed "Involuntary resignation". It stressed that she believed she had been left with no other option but to resign.

Employer's argument


The RSL submitted it hadn't taken any action that would have led Ms Balgowan to conclude she had no option but to resign.

It further claimed it had done nothing intended to bring the employment relationship to an end. Rather, it said the circumstances involved a temporary removal of Ms Balgowan from shifts that involved cash handling.

The employer asserted it was not reasonable or viable for Ms Balgowan to continue to perform "change box" duties while she was awaiting her retraining.

Ruling


Commissioner Cambridge found there was considerable disagreement about exactly what was said at the meeting of 10 April.

However, he said whether or not the word "resign" was actually uttered by Ms Balgowan was not a question that required determination.

"The question that does require resolution is whether the applicant was entitled to reject the changed employment conditions imposed by Ms Faaui during the meeting," he said.

The Commissioner found that the changes would lead to a reduction of about 75 per cent in Ms Balgowan's remuneration.

"On any reasonable and objective contemplation, an indefinite reduction in remuneration of at least 75% would represent a repudiation of the employment which the applicant could properly reject. Consequently it was the actions of the employer which brought the employment to an end."

The Commissioner ruled Ms Balgowan had been constructively dismissed.

"Unfortunately the emoployer failed to appreciate that its decision to remove the applicant from all rostered engagements involving work in the "change box" involved such significant change to the employment as to amount to dismissal from employment," he said.

He also ruled that the dismissal had been harsh, unjust and unreasonable.

"The dismissal of the applicant was without valid reaon involving established misconduct or capacity inadequacy. Further, the dismissal was implemented by way of an unreasonable and unjust process."

Remedy


Ms Balgowan sought compensation for the three months of lost remuneration she had anticipated receiving before she planned to resign in July.

The Commission awarded 16 weeks' compensation, amounting to $13,566.

Roxana Balgowan v City of Sydney RSL & Community Club Ltd (U2017/4635) [2017] FWC 3798
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