Was there unfair dismissal if she couldn't comply with work requirements?
Following shift schedules in the workplace is crucial to accommodate the employer’s needs and objectives.
Schedules help ensure sufficient staff members are available to meet customer needs, manage operational workflow and adhere to company policies.
In this case, the worker insisted that she should work on specific shifts that fit her schedule, but the employer denied it.
Background of the case
The employer operates a Personal Emergency Response Service (PERS), which provides operator support to primarily Australian elders who wear a wireless personal emergency alarm device or have access to a nurse call alarm button system in an aged care facility.
The service is called “Rosie,” and the employees are called Rosie Assistants or Rosie Operators. The service runs 24 hours, 365 days a year.
On speaking to the resident, the operator must follow a well-documented triage process and take steps to provide the necessary support.
The employee started her employment in April 2019 as a Rosie operator.
According to records, she is in her late 50s, suffers from migraines, and has a spinal disorder. The employer knew about her condition; she was issued a special chair and desk and worked from home. She is on a disability support pension and is required to meet work obligations.
The contract required her to work a minimum of three shifts per week:
- Shift 1: 7:00 am – 3:00 pm
- Shift 2: 3:00 pm – 11:00 pm
- Shift 3: 11:00 pm –7:00 am
The employer said she was “overwhelmingly working only on Shift 2 and rarely on Shift 1.” She said that “she would never be able to work Shift 3.”
Around November 2021, the employer sent her an email and said she had “significant performance failures,” including those caused by “health-related matters”:
“You noted that because you had a “headache” and were “tired” you couldn’t correct and re-send the work … you MUST take the day off if you are not fit to work and can’t meet the expectations. If your work quality is affected by any health conditions, we need to be aware of it, and you should not be working.”
In the same email, the employer said it would accommodate a request to lessen her shifts:
“As per your request, I will reduce your shifts to two per week from the next roster onward. As you know this is not aligned with what is stated in your contract (min-3 shifts a week), however, we are more than happy to support you with this request for as long as practical.”
The evidence showed that the employee specifically doesn’t want to be put on the night shift for the following reasons:
- She has dogs awake during the day when she would otherwise be trying to sleep;
- She doesn’t wish to wake up her adult children while they sleep at night.
The employee denied requesting to minimise her work to two shifts.
Later, the employer did an organisation restructure and sent an email to the employee:
“[The restructure] would require that part-time Rosie staff work (as per the terms of the employment contract) a combination of overnight, afternoon and morning shifts and also ideally work minimum of 3 shifts per week.”
“Regrettably, this means that we have to terminate your employment; after speaking to you at the beginning of this review process, you confirmed that your circumstances have remained unchanged at that you won’t be able to work the minimum required shifts or working a combination of shifts (morning/afternoon and overnight). Although over the past few years, we have been able to accommodate the flexibility and exemption that you required, we will no longer be able to continue doing so due to the growing business with the growing need for staff availability and flexibility. This is to ensure that the risks to the business continuity are minimised.”
The employee claimed that her dismissal was “spiteful,” and that she was being bullied or harassed. She also argued a few co-workers “were permitted to work part-time, performing less than three shifts across all three shifts.”
In a recent case, a working mother tried to propose requests suitable for her needs to meet her responsibilities. The employer denied the requests, arguing it would encounter “operational difficulty.”
The FWC’s consideration
The Fair Work Commission (FWC) said the employee’s “insistence on working largely on Shift 2, and for only two shifts per week put the employer’s agenda to have a versatile and committed workforce at risk.”
The Commission noted the employer “was not interested in having employees pick their ideal shifts.”
Ultimately, the FWC said the employer’s circumstances meant that working three shifts per week, across all three shifts, constituted “the inherent requirements of the role.” Thus, the FWC said this requirement was lawful and reasonable.
“When the employee was unable to meet the ‘inherent requirements’ of the role and was dismissed from her employment, there was a valid reason for the dismissal due to her capacity.”
Thus, the FWC claimed there was no unfair dismissal.
As for “flexible work arrangements,” do employers have to accommodate WFH requests? HRD previously reported on an FWC decision that said employees could not insist on a remote working arrangement when the employer’s needs are reasonable to have them work on-site.
