Employer argues conversion wasn't dismissal
The Fair Work Commission (FWC) recently dealt with a worker’s claim that his employer left him no choice but to agree to a conversion from a permanent position to a casual one, adding that it constituted a “forced resignation.”
On the other hand, the employer said that it was merely a variation of his contract to accommodate his personal circumstances, and not a dismissal.
Background of the case
In July 2023, the worker, Danny Newton, filed a request with the FWC, alleging that his termination from employment with Australian Concert and Entertainment Security Pty Ltd (ACES) was unjust.
Newton claimed that his dismissal occurred when his employment shifted from a permanent full-time role to a casual one on July 7, 2023, following a meeting with the employer's HR coordinator, and services manager.
Newton started his employment on October 5, 2020, and his employment terms were covered by the ACES Group Enterprise Agreement 2020 and a contract dated September 24, 2020.
He worked as a security ranger in a permanent full-time capacity at the Barangaroo Visitor Services Security site and faced several health and personal challenges during his tenure at ACES.
Despite these, he sought flexible working arrangements on multiple occasions to manage his health and caregiving responsibilities.
However, these requests were met with discussions proposing alternative roles and converting to casual employment, culminating in a meeting on July 6, 2023, where Newton felt compelled to accept a casual position to avoid dismissal.
From permanent to casual employment
After the meeting, Newton signed an employee performance report acknowledging ongoing performance issues and his conversion to casual employment.
ACES said that Newton was provided with alternative options to address performance and attendance concerns. The worker, on the other hand, argued that he felt cornered into accepting the casual role.
Newton also alleged that the promised hours as a casual employee did not materialize, leading to his dissatisfaction. ACES rejected this by presenting a signed contract dated July 7, 2023, outlining the terms of casual employment, emphasising the inherent unpredictability and no obligation for ongoing work.
Worker’s contract variation
A series of emails was exchanged between Newton and the HR coordinator, which highlighted the lack of consultation regarding his change in employment status. ACES maintained that consultations occurred during prior meetings addressing performance issues and alleged unprofessional behaviour.
Since the said events, Newton has worked casual shifts for ACES, while rejecting or not responding to subsequent shift offers. The communication between Newton and ACES' HR revolved around rostering matters and the allocation of shifts based on availability and client requests.
ACES said that Newton’s employment was “varied from one of permanent full-time employment to casual employment. Therefore, Newton’s contract was not terminated.”
“Put more precisely, Newton’s employment contract was not discharged, it was varied consistent with the intention of the parties,” the employer said.
Was there forced resignation?
The FWC said that “the contract between Newton and ACES dated 24 September 2020 was terminated when the parties signed a new contract on 7 July 2023 notwithstanding the fact that the employment relationship continued.”
“This in effect resulted in Newton resigning from his permanent position effective from that date,” it added. However, it did not find that it was a forced resignation.
“If [he] was concerned about converting to a casual position after the meeting on 6 July 2023, it was open to him to not sign the contract the following day. Newton signed the contract on 7 July 2023 and did not raise any concerns about converting to the casual position until 11 July 2023.”
“The reason that Newton signed the contract and agreed to become a casual employee was because he was increasingly unable to meet the requirements of the role in relation to working regular night shifts because of his responsibilities towards his daughter and his own health issues,” the FWC said.
“These were very unfortunate circumstances and beyond Newton’s control. They were evidenced by his regular absences on unpaid leave and his three requests for flexible working hours.”
“Although [the HR] initiated the discussion about casual employment with Newton on 6 July 2023, [the employer’s] conduct did not force [him] to relinquish his permanent position. Rather, it was Newton’s personal circumstances which resulted in Newton signing the casual contract,” the FWC added. Thus, it said that there was no forced resignation and dismissed the application against the employer.
