Employer says it had 'right' to require worker to follow 'lawful' direction
The Fair Work Commission (FWC) recently addressed a worker’s claim that he was unfairly dismissed after refusing to follow his employer’s new roster.
On June 24, 2023, Gursharan Singh lodged a complaint against Certis Security Australia for unfair dismissal.
Singh, who was terminated on April 14, 2023, alleged that his dismissal was unjust and sought reinstatement or compensation as redress. Certis, on the other hand, contested the application.
Singh initially joined as a casual security officer in December 2020 and transitioned to a part-time employee in April 2022.
His contract guaranteed a minimum of 26 hours of work per fortnight at the "Scentre Group SA" location, with provisions for potential redeployment. The relevant modern award also applied to his employment.
Rostering dispute
Singh was routinely scheduled to work two-night shifts on weekends, typically amounting to about 20 hours per week, surpassing his contracted hours.
Occasionally, his workload extended to around 30 hours per week. However, his work mainly comprised weekend night shifts.
This pattern persisted until Singh went on extended annual leave from January 4, 2023, to March 9, 2023, during which he traveled to India.
During Singh's absence, another security officer was rostered to cover his weekend night shifts. The rostering manager communicated with Singh through Facebook to discuss potential changes to his roster, taking into account his upcoming academic commitments.
Upon Singh's return, he was informed of a new roster with reduced hours, citing generalized performance concerns without specifics.
Singh communicated to his employer on March 6, indicating his unavailability for rostered shifts until the dispute was resolved and requested a meeting with management before resuming work.
Discussions ensued between the parties, exploring alternatives, including the possibility of working at a different shopping center, which Singh declined, insisting on addressing the performance allegations before any changes to his rostered work.
In response to the impasse, a meeting was arranged for March 14, 2023, involving Singh, management members, and another Certis Security supervisor. Prior to the meeting, management engaged with Westfield Tea Tree Plaza about Singh.
Meeting’s outcome
During the meeting, Singh reiterated his stance, emphasizing the need to address the performance concerns before discussing the new roster.
However, he was informed that the meeting was specifically to discuss the roster, and the performance concerns were treated as a separate issue.
It was during this meeting that Singh was directly informed for the first time about the client's concerns regarding his performance on night shifts and their preference for him not to work those shifts.
Singh maintained his position, expressing his unwillingness to work the new roster until June 2023, when his studies concluded. He indicated a potential willingness to consider the new roster after June 2023 but not before. Conversely, the employer asserted its right to require Singh to adhere to the new roster.
Later, the employer advised Singh that he would be terminated for failing to comply with a lawful and reasonable direction.
Worker’s arguments
According to records, Singh contended that his dismissal was unfair, primarily due to the decision to remove him from the established roster of working weekend night shifts at Tea Tree Plaza. He asserted that the change was unjustified, citing various reasons, including lack of performance grounds, imposition while he was on approved leave, and favoritism towards another employee.
Additionally, Singh claimed that the change did not consider his personal circumstances, was discriminatory based on his ethnicity, and lacked procedural fairness.
Furthermore, Singh argued that the direction for the roster change in March 2023 was not lawful and reasonable, emphasizing the unresolved roster dispute, the distance of the new locations from his home, and the scheduling conflicts with his educational studies.
In response to his dismissal, Singh sought reinstatement to his former position and roster with back wages, or alternatively, maximum compensation for the financial loss and psychological distress endured.
Employer’s defense
Certis said that Singh's dismissal was justified as he failed to comply with a lawful and reasonable direction. They asserted that the direction for the roster change was consistent with their contractual rights and obligations and was based on genuine operational needs to provide security services at the designated locations.
The employer maintained that the direction was reasonable, considering the ongoing impasse with Singh's refusal to work the changed roster and the discussions held regarding the roster change. They argued that Singh was provided procedural fairness, given multiple opportunities to explain and warned of the potential consequences, including dismissal.
Certis also asserted that the client's concerns about Singh's performance were considered in making rostering decisions and that Singh's refusal to work the directed roster was the primary reason for his dismissal.
Was it unfair dismissal?
“Under his contract of employment, Singh was required to work the hours for which he was rostered, and was required to work at Westfield centres or at other locations reasonably required by the employer,” the FWC said.
“Having regard to the number of hours, location, shift types and days of the week, the direction was lawful,” it added.
The FWC also said that “Singh was given notification of the change of roster in accordance with law. Under the standing consent signed by Singh, variation of the roster was at the absolute discretion of Certis to suit operational requirements.”
“The direction was notified in advance. It required work of the type Singh was contracted to perform. There was no reasonable explanation for [him] not performing the work as directed.”
“His desire to have the performance concerns which had triggered the earlier roster change substantiated was understandable but in the face of his refusal to work any different roster (including the roster as directed) a valid reason existed,” the FWC said.
“His failure to attend for work as a security officer struck at the heart of Singh’s employment obligations. The failure was repeated and considered.”
Thus, the FWC said that the dismissal was not harsh or unreasonable. It then dismissed the worker’s claim against the employer.
