A woman who worked as a sales executive with Helloworld (trading as Qantas Holidays and Viva Holidays Ltd) has failed in a claim for unfair dismissal. Helloworld had given the woman, a mother with young children who sought flexible working arrangements, the option of taking a full-time position or resigning.
Hearing the claim in Sydney, the Fair Work Commission’s primary concern was to decide whether the applicant, Catarina Reale, had been dismissed or had resigned. The Fair Work Commission (FWC) is Australia’s national workplace relations tribunal.
The hearing, before FWC Senior Deputy President Hamberger, heard that Reale had worked for Helloworld’s predecessor since 2000 and in 2008 had taken up the position of Sales Executive NSW (now called Business Development Manager) as a full-time employee.
She held this position until she took maternity leave in 2011. Reale then took several back-to-back periods of maternity leave and planned to return to work in June 2015. At that point she had three young children ranging from three years to two months old.
In April 2015 Reale indicated to Helloworld’s Ms Dalton (Manager National Industry Sales) that she was not able “to commit to full-time work at the present time.”
“I would ideally like an opportunity to trial a temporary part-time role, in my current position or alternatively (if this is impossible) I would like to have the opportunity to find another role within the company with a goal to return to full-time work within a year.”
Dalton responded that “regrettably, despite our best endeavours, we have been unable to source any part-time positions within wholesale at this time to offer you for consideration”.
The reason for that, Dalton said, was that the size of the business had “reduced substantially” over the past five years and departments had also “reduced their headcount since you were working with us full time prior to 2011. Consequently the opportunity to offer part-time work roles has substantially decreased.”
In further exchanges, Reale pointed out that the enterprise agreement that covered her employment included a provision that encouraged employers to grant part-time parental leave.
Dalton again wrote to the applicant:
“Unfortunately the business is unable to accommodate this request in your current role, or in any alternate roles of comparable skill and salary.
“Please know we have considered your request carefully and the business is unable to facilitate your request for part-time work as we will be unable to maintain the necessary service standards and expectations within the Sales Division.
“I appreciate that you are a long-standing employee of the business and that you bring a wealth of knowledge to the team, however notwithstanding our efforts, no part-time roles of a similar level are currently available.
“I am able to confirm that your pre-parental leave role of Sales Executive, now renamed Business Development Executive, is available for you to re-commence in a full time capacity.
“Whilst I acknowledge that you have provided the business with adequate notice of your return from parental leave, we believe that we have given you sufficient time to consider your options on returning to the role on a full time basis.”
Reale was then asked formally to confirm her return to work. On 15 June 2015 Helloworld advised her that she had two options:
- accept the full-time position of Business Development Executive commencing on 22 June 2015; or
- resign from her position by providing written notice prior to close of business Wednesday, 17 June 2015.
During the hearing, Helloworld General Manager Human Resources, named on commission documents as Mr Hamilton, said the Business Development Executive provided support to a network of travel agents.
“Feedback had been given by travel agents that there was a need for the Business Development Executive to be available on a full time basis,” he said.
Faced with the alternative of either taking a full-time job or resigning, Reale wrote back to Helloworld: “I wish to inform you that I unwillingly resign from my position, as my request for flexible work arrangements has been rejected. I do not want to resign; I reiterate this is a decision that has been forced upon me.”
Under section 386 (1) (b) of the Fair Work Act a person has been dismissed if:
“the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”.
In considering the case, Hamberger drew on precedents and said he could “certainly sympathise with the applicant’s circumstances and I can readily appreciate that she felt she had no choice but to resign rather than return to work on a full time basis.
“However, given my finding that the respondent [Helloworld] had reasonable business grounds for its refusal to convert her employment to part time, I am not satisfied that it was the action of the respondent – rather than her personal circumstances – that forced her to resign.”
Hamberger thus found that Helloworld had not dismissed Reale and therefore Reale could not pursue her application for an unfair dismissal remedy.
Written by Peter Needham