Text messages and casual chats insufficient to discuss roster changes
Posted on February 04, 2016
The recent decision in Hocking v Tackle World Adelaide Metro [2015] FWC 6519 has emphasised that employers must take a formal, considered approach when consulting with employees covered by a modern Award.
In this case, the Applicant commenced employment with Tackle World in February 2012 as a casual Sales Assistant. He then became a full-time employee on 27 May 2013. Up until 9 March 2015, the Applicant had worked a set roster of Wednesday to Saturday. As the Applicant was divorced and had access to his children every second weekend, these working hours suited him perfectly.
In late February 2015, the Store Manager of Tackle World showed the Applicant a draft roster for the period of 2 March to 3 May 2015, under which the Applicant was to begin working on Sundays.
In response to the new roster, the Applicant sent a text message to the owner of Tackle World to raise his concerns, to which he received the response: “Please don’t stress mate. We’ll work it out. You will see your kids. Don’t think anymore of it.” The Applicant reported to the Store Manager that he had spoken to the owner and asked to discuss the matter further, reiterating that: “I just need to see my kids … they come first.”
In the weeks that followed, the Applicant made several attempts to meet with his employer, however no formal meeting occurred, save for a casual chat with the owner in the car park. Then, on 7 April 2015, the Applicant and the owner engaged in the following text message exchange:
Applicant: Hey Thomas ... just wondering if it’s possible to come in this arvo and have a chat about the roster…
Owner: Hey mate I’m leaving at midday so probably not. I can change one of the Saturdays to give you a day on the weekend off but can’t do much about the Sunday’s mate. We don’t have any options unfortunately. We’ll look again at it when I’m back but unfortunately my hands are tied.
On 20 April 2015, the Applicant approached the owner again to discuss the matter. While the parties’ versions of events differed, the result was that the Applicant’s concerns were not addressed and his employment with Tackle World ended. Consequently, the Applicant filed an unfair dismissal application in the Fair Work Commission (FWC).
As the Applicant was covered by the General Retail Industry Award 2010 (Award), his employer was obliged to consult with its employees in respect of changes to rosters or hours of work pursuant to clause 8 of the Award. The consultation clause is a common feature of modern Awards and requires employers to:
- provide any information about a proposed change to the employee(s) affected;
- invite the employee(s) to give their views about the proposed change; and
- give consideration to the employee’s views about the impact of the proposed changed.
In the current case, the FWC concluded that the text messages and informal conversation with the Applicant did not satisfy the employer’s consultation obligations. No final orders have been made by the FWC in this matter as it remains ongoing.
Most employees are covered by modern Awards, so it is crucial that employers adopt proper practices which comply with their consultation obligations. Consultation has long been explained by the FWC as a genuine opportunity to influence a decision-maker, which the Applicant in Hocking never got. Employers must also be mindful of the adverse action provisions of the Fair Work Act 2009 as well as anti-discrimination legislation which prohibit employers from discriminating against employees with family responsibilities (amongst other attributes).
Please contact a member of Lynch Meyer’s Workplace Relations team if you require assistance in implementing a workplace change.
