Overview of the facts 

The worker was employed by a small construction business to perform administration and reception duties on a full-time basis on site. Responsibilities included receiving goods, answering calls and dealing with visitors.  

Outside of work, the employee also provided care for her grandson, who had special needs. In the last six months before dismissal, she worked around 30 hours a week, often outside of business hours and at her own choosing. 

The business owner confirmed it had provided the employee a lot of leeway. They understood their family responsibilities and wanted to help. However, after a tough year, the business found itself in a strained financial position and had to ensure it was operating efficiently, including making sure orders were actioned, tracked and fulfilled quickly. 

The business owners met with the employee and explained the working arrangement wasn’t sustainable, asking her to consider committing to full-time hours again. Importantly, the employee was informed if they couldn’t, they would have to be let go. The business offered a month to return to full-time hours.  

Several emails were exchanged, including one that stated the employee could not work full-time. The business owner responded that they would consider the situation. Soon after, the employee requested four to six months’ unpaid leave, and then advised that she was on sick leave.  

The business owner concluded the employee was not able to work full-time and fulfill her contractual obligations, emailing her to confirm the dismissal. 

The Decision 

The Commission found that the dismissal was consistent with the Small Business Fair Dismissal Code. The employee was given adequate notice to discuss her employment, was warned about the business situation, and was provided a reason as to why she was at risk of being dismissed.  

Despite the employee arguing the reason for dismissal was her absence and request for an extended period of leave, the Commission was satisfied the dismissal was due to the employee not being able to commit to full-time hours and the business not being able to sustain the irregular working arrangement.  

The Commission found the requirement to work full-time hours a valid reason based on her capacity to fulfil her role. Although it was a difficult situation and the employee was trying to balance her competing demands, the business had been flexible and considerate given all the circumstances before the situation became untenable.  

Learnings for business 

In this case the business was described as “exceptionally flexible and considerate.” Businesses want to do the right thing and support their employees but having a clear agreement and position description can be a vital tool in setting expectations. 

In this case, the small business did the right thing; it tried to work with the employee, provided ample time to consider its proposal and gave fair warning of the likely outcome. 

When considering flexible arrangements, think about what will happen if it doesn’t work. When considering dismissal, regardless of the reason, adopting a fair process is key. If you intend to rely on the Small Business Fair Dismissal Code, seek advice early on to ensure you are covered and understand its requirements.  

How we can assist 

Dismissals can be difficult. Before you take any action, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222 to discuss your obligations and processes. Our experienced Workplace Relations Consultants can also provide you with practical support and guidance. 

[2021] FWC 5994