Employer reduces shift from 19.5 to 6.5 hours per week: is it unfair?
The Fair Work Commission (FWC) recently decided on a worker’s claim that she was forced to resign after her employer reduced her working hours.
The company said it was a “mutual agreement” and that it had to lessen her workload due to financial problems, but the worker said it was done so she would have “no other choice” but to leave.
The worker started as a receptionist/support services worker at the employer's physiotherapy business in Sydney around July 2014, covered by the Health Professionals and Support Services Award 2020.
In March 2021, the worker's employment transitioned to part-time, with her working hours reduced to 19.5 hours per week. Subsequently, in July 2022, her working hours were further decreased, resulting in her working only 6.5 hours per week.
Their arrangement lasted until 19 June 2023, when the worker submitted a letter of resignation. She continued working for the employer until her employment officially ended on 5 July.
The worker argued her resignation on 19 June was not voluntary, saying she was "forced to resign" due to her employer's refusal to end what she believed to be only "a temporary reduction" in working hours.
She added this situation "resulted in overwhelming financial hardship that left her with no other option but to resign." The employer maintained that the reduced working hours were mutually agreed upon by both parties and that the worker's resignation was her decision.
According to records, the worker said that in June 2022, she had a conversation with Jerome Murphy, the employer's managing director.
During their discussion, the worker said that Murphy indicated that "he could no longer afford to keep the [worker]" and that "the business had no money to pay out the [worker’s] entitlements because of the downturn caused by the pandemic."
The worker also said that Murphy said” he could only afford to have [her] work one day per week." She said she agreed to work for one day a week in order to assist the [employer] but that "she only agreed on the basis that it would be for a trial period and not an indefinite arrangement."
Shortly after the conversation with Murphy, the latter gave her a copy of a document to sign acknowledging the reduction of her hours to 6.5 hours per week.
The worker said she refused to sign the document because it made no reference to the arrangement that it would only be for a trial period. She asked for it to be changed, but the employer did not do anything. The document remained unsigned.
On 11 July 2022, the worker continued working 6.5 hours per week as her sole source of paid employment, and this remained her employment status until her employment was terminated the following year.
Meanwhile, the employer said that the worker agreed to work for reduced hours and denied that it told the worker that it would only be on a "trial" basis. It also said it "had to make a decision about reducing the business’s operating costs."
The FWC noted that it had “no doubt” that the worker’s circumstances “created serious hardship for her.”
“She had agreed to an arrangement which she had understood would be temporary only and had done so for well-intentioned reasons, namely, to assist her employer to recover from losses incurred during the pandemic,” it said.
“In relation to the reduction of [her] work hours in mid-2022, she indicated at the time that she would work the reduced hours on a ‘trial’ basis. This version of events is supported by the fact that the document recording the arrangement was not signed by the [worker].”
“She raised her difficult economic circumstances with her employer on more than one occasion in an effort to obtain more work and by doing so, sought to bring any trial period to an end, [but] the [employer] appeared to be indifferent to her requests and ultimately did not offer her any more work,” it added.
It also said the worker was “a dedicated employee who gave 9 years of service to her employer” and “in those circumstances could not understand why her employment ended in the way it did.”
“However, looking at the circumstances overall,” the Commission said that it was “not satisfied that it was the conduct of the [employer] that brought the employment to an end or had that probable result.”
It said the employer’s conduct “up to the point of the [worker’s] resignation was equally consistent with that of an employer who was content for the existing arrangement to continue indefinitely, rather than an employer who was inactive in an effort to force [her] to resign,” it added.
Thus, it said the employer did not force the worker to resign and dismissed her application.
