Employer said it was 'within its rights' to put student-worker in new roster
The Fair Work Commission (FWC) recently dealt with the case of a student-worker who said his employer unjustly and unfairly changed their roster when he was overseas and on leave.
When the parties couldn’t resolve their roster dispute, the worker claimed he was dismissed, but the employer said that he resigned on his own.
Certis Security offers security and risk assessment services through its partnership with Business Risks International Pty Ltd. One of their clients is Westfield, also known as the Scentre Group.
One of their workers is an overseas student studying full-time at the University of South Australia. He initially joined as a casual security officer in December 2020 and later became a part-time employee in April 2022. His contract guarantees a minimum of 26 hours of work every fortnight.
While his primary location was at the "Scentre Group SA," the contract allows for potential redeployment to other sites. It also outlines the working hours and situations where adjustments can be made to the schedule.
Throughout his employment, the worker was stationed at the Westfield Tea Tree Plaza shopping centre in suburban Adelaide. Due to his tertiary studies, he typically wasn't available to work on weekdays, except during term breaks. As a result, he was regularly assigned two-night shifts over the weekends, starting on Friday and Saturday evenings.
In addition to his regular hours, he occasionally worked limited overtime, bringing his weekly total to around 20 hours. During term breaks, he would sometimes work up to 30 hours per week. However, outside of term breaks, he primarily focused on weekend night shifts.
This was how things were going at work until Gursharan Singh took an extended annual leave after finishing a shift on December 31, 2022/January 1, 2023.
Singh went on vacation (including approved leave) from January 4, 2023, to March 9, 2023, and traveled to India.
During his leave and right before that, Singh reported to Daniel Mykytyschyn. It was Mykytyschyn who approved his leave. While Singh was away, Mykytyschyn scheduled another security officer to cover the weekend night shifts that Singh used to work.
At the Tea Tree Plaza site, Mykytyschyn created schedules for security officers on a biweekly basis. He gave advance notice of the schedules, adjusted them to accommodate leave, and tried to consider specific availability, unavailability, and preferences.
Knowing that Singh was on leave in India but also considering the need to finalize the roster upon his return, Mr. Mykytyschyn contacted Singh through Facebook in mid-February 2023.
Mykytyschyn mentioned that he "wanted to make changes to the roster.” On 20 February, Mykytyschyn had the following conversation:
Mykytyschyn: “I’ve just thought of a plan that might also help with your study so your (sic) not overwhelmed and stressed. As mention (sic) you have placement coming up. I know some placements may take up weeks or most days of the week.”
“So what I thought of as I’ve been thinking since yesterday, we could put you on some shifts in the morning so it frees up your days.”
“As I know it’s your last semester of uni and it will be full on, I want you to do well and get everything completed for uni. The situation I face at the moment, Justin has requested night shifts as it suits his lifestyle better with his partner working during the day and he needs to look after the kids during the day. Hence why I am re-doing the roster.”
Singh: “I understand. But I can’t do till next 3 months. I requested number of times, not everytime got approved. I got refused even Thursday shift when requested. So, I’m happy to swap/drop after June. Weekend is best for me to work, there is no uni placement on weekend. Even I’m unsure if I will do any work on week days.”
On 23 February, Singh realized that Mykytyschyn was planning to schedule him for weekday shifts instead of weekend night shifts. This led to a disagreement between them.
Singh then said: “Sir, I need my normal core shifts, no compromise sorry. Or I will resign.”
Singh came back from his overseas trip on March 10th because his annual leave ended on March 9th. Unfortunately, he had to deal with an issue while he was still on leave, which caused him a lot of stress and made the last few days of his vacation “pretty unpleasant.”
He was scheduled to work right after returning, on March 10th, 11th, and 12th (Friday, Saturday, and Sunday), and then start a new roster on March 14th.
On March 6th, Singh texted Mykytyschyn, letting him know that he wouldn't be able to work the scheduled shifts until the rostering dispute was resolved.
According to Singh, he handed in his resignation on March 14, 2023, with an effective date of March 10, 2023.
He made this decision because his request to not work the new roster and return to his former weekend night shift roster was not accepted.
Furthermore, he claims that he was forced to resign due to Certis Security's conduct or actions, which qualifies as a dismissal under the FW Act.
“Mr. Singh threatened to resign but did not, in fact, resign. At its highest, the evidence establishes that Mr. Singh foreshadowed (and in that sense, threatened) to resign if the employer continued to press its demand that he work the new roster,” the Commission said in its decision.
“A threat to end one’s employment by resignation is different to conduct actually ending that employment. Mr. Singh neither by word nor deed brought his employment to an end. On 14 March 2023, he maintained his earlier threat (made to Mykytyschyn on 23 February 2023) to resign if the employer did not back down. He did not carry through with that threat,” it added.
The Commission said that the worker had gotten the wrong idea that he was "dismissed" because he was taken off a roster he had been working on before taking a leave.
“[His] case is based on an incorrect premise that he was ‘dismissed’ because he had been removed from a roster that he had worked prior to going on leave. He conflates the fact that he was removed from that roster with the proposition that this constituted a dismissal such that his refusal to work the new roster was a resignation,” the Commission said.
“A requirement that an employee work a new or different roster that is met with a refusal by the employee to do so is not a resignation. Singh’s conduct on or around 14 March 2023 was a refusal to work the new roster because of his circumstances and because performance concerns had not been plainly put and resolved. There was a standoff been he and his employer but it was not a resignation,” it added.
Thus, the Commission found that his employment was not terminated by the employer and dismissed his unfair dismissal application.
