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A recent decision by Deputy President Bartel of the Fair Work Commission (FWC) in Jaymon Hocking v Tackle World Adelaide Metro [2015] FWC 6519 (Hocking’s Case) provides yet another valuable lesson for employers in relation to Modern Award compliance.

In Hocking’s Case, Mr Hocking had been employed since 2012 as a sales assistant who worked regular days and hours. Mr Hocking was divorced and had access to his three children every second weekend.

Mr Hocking was given a new eight week roster which required him to work six out of the eight Sundays. Mr Hocking requested that the roster be changed so that he was able to see his children two Sundays a month stating that if this could not occur, then he would need to resign. Mr Hocking requested conversations with his manager and there were some exchanges via text message about Mr Hocking’s concerns, however, his manager denied his requests for a formal meeting and for changes to the new roster.

The Deputy President noted that in some circumstances a resignation can be deemed to be a dismissal for the purposes of the Fair Work Act 2009 (Cth) (FW Act). If the resignation was seen to be forced (i.e. a constructive dismissal) the employee will be able to have their application for unfair dismissal heard before the FWC.

The Deputy President concluded that the reason for Mr Hocking’s resignation was the rostering arrangements and that he had put his family first. In these circumstances, the Employer’s conduct surrounding the termination became relevant.

Mr Hocking was covered by the General Retail Award 2010 (Retail Award). The Retail Award has specific consultation provisions relating to changes to rosters or hours of work. The consultation clause requires employers to provide employees (or their representatives) with:

• information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

• invite the employee or employees affected to give their views about the impact of the proposed changes (including family and caring responsibilities); and

• give consideration to any views about the impact of the proposed change that given by the employee or employees concerned and/or their representatives.

(The consultation provisions do not apply where an employee has irregular, sporadic or unpredictable working hours).

The Deputy President concluded that based on the submissions, Mr Hocking’s manager did not comply with the obligations under the Retail Award as text messages and the informal conversations were not enough to satisfy the consultation requirements under the Retail Award to give consideration to Mr Hocking’s position – particularly given that family responsibilities were specifically contemplated by the consultation clause as being relevant consideration and were the basis of his concerns about the roster change.

In addition to this, the Deputy President pointed out that the Retail Award specifies that a rostering period cannot exceed four weeks. As a result, the Employer had failed to comply with the requirements of the Retail Award.

The Deputy President made it quite clear that compliance with the Retail Award was not the only factor to be considered.

In the Deputy President’s separate decision in Jaymon Hocking v Tackle World Adelaide Metro [2015] Mr Hocking was found to be “dismissed” for the purpose of the FW Act as the conduct of the Employer in the circumstances caused Mr Hocking to be unfairly dismissed. As a result, Mr Hocking received compensation for lost wages plus annual leave he would have accrued (with annual leave loading).

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