'This is bullsh*t': worker tosses in the towel

Cases

'This is bullsh*t': worker tosses in the towel

The Fair Work Commission has dismissed a worker’s application for unfair dismissal after finding she resigned on her own terms.

The Fair Work Commission has dismissed a worker’s application for unfair dismissal after finding she resigned on her own terms. 

Facts and background


Ms Bromley-Hoult worked as a customer service operator at Ascot Vale Leisure Centre. On certain days she worked in a more senior role as program coordinator. 

Her hours were determined after discussions with management. 

In January 2018 she was accepted into a Bachelor of Nursing. She told her boss, Aylie Spence, that she could no longer work Mondays, Tuesdays and Wednesdays. 

Meetings were held  to discuss her work hours and it was decided Ms Bromley-Hoult would no longer be able to work as a program coordinator due to her limited availability. 

Ms Spence said she offered her a working week of about 24 hours, on the assumption Ms Bromley-Hoult would be willing to do a Wednesday close and a 10-hour Saturday shift. 

It was alleged that Ms Bromley-Hoult said she ‘wanted a life’ and didn’t want to spend her Saturday at work. Ms Bromley-Hoult denies saying this.

She said Ms Spence offered her eight hours' work in customer service and that she told her she would have to resign as she could not live on $160 a week. 

There was a misunderstanding between the pair as to whether Ms Bromley-Hoult was resigning only from her program coordinator role or the job entirely. 

Other staff members said Ms Bromley-Hoult told the work team she had resigned and was looking for another job.  

This was followed by a heated meeting between the pair a few days later, where Ms Bromley-Hoult was yelled and swore at Ms Spence for treating her poorly, saying it was ‘bullsh**t’ and ‘unfair’. 

She left the meeting distressed and unable to complete her shift saying she would be leaving the centre. 

Law


Under s385 of the Fair Work Act, a person has been dismissed unfairly if he/she was dismissed and it was harsh, unjust or unreasonable. A person is dismissed if he/she was forced to resign because of conduct by an employer.  

Arguments


Ms Bromley-Hoult argued that she was forced to resign because she was no longer allowed to work in the program coordinator’s role and that her 18-hour week was reduced to eight hours. In the alternative she argued that she was demoted without consent and this was a breach of contract. 

Her employer argued it did not dismiss Mr Bromley-Hoult and that she resigned at her own behest to pursue her nursing studies. Her employer said it was happy for Ms Bromley-Hoult to continue working, but that it needed to change her working hours and role based on her availability and the needs of the business. 

Question 


The question before the commission is whether Ms Bromley-Hoult resigned at her own behest or whether she was forced to resign because of the restrictive hours placed on her. 

Consideration


The Fair Work Commission considered that there were discrepancies between the two parties regarding the chronology of events.

Commissioner Cribb was not satisfied this was a case of forced resignation. She said it was reasonable for the employer to advise Ms Bromley-Hoult that, due to her drastic change of availability, it was unsuitable for her to continue in her current role, especially when it affected centre members.

The commission found the changes were initiated by the applicant, which supported the employer's argument that it was not a forced resignation.The commission also considered the fact her employer tried hard to accommodate her and give her suitable hours.  

Decision


The commissioner said: "I find that Ms Bromley-Hoult resigned and that Ms Bromley-Hoult’s resignation was not a forced resignation (as the result of the employer’s course of conduct or the likely result of a course of conduct). Neither was Ms Bromley-Hoult demoted in the sense that [her employer] repudiated Ms Bromley-Hoult’s contract by not offering Ms Bromley-Hoult the program coordinator role. Rather, Ms Bromley-Hoult was no longer able to perform the program coordinator role on the days that the business required. There was not a dismissal at the initiative of the employer." 

The application was dismissed. 

Read the judgment


Julie Bromley-Hoult v Belgravia Health & Leisure Group Pty Ltd T/A Ascot Vale Leisure Centre [2018] FWC 4979 (27 August 2018)
 
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