TransGrid directed its Project Manager to relocate to another worksite in Wallgrove after he had already been reporting to the office at Ultimo since 2014. The employee was a project manager and involved in the management and procurement of design processes and feasibility studies. In this role, he regularly travelled to and from different sites while primarily assigned to the Ultimo worksite.
The Project Manager resisted the relocation because he and his family lived in Manly, he did not own a motor vehicle and travelled on bicycle and he had recently become a father. The relocation would impact his health and family life because distance between the new worksite and the employee’s residence required a commute by bicycle of about 5 hours daily. This resulted in the Project Manager being too fatigued by the commute to work and missing out on time spent with the family.
Even if the Project Manager could travel by public transport or purchase a motor vehicle, this would entail significant cost. The Project Manager then raised the issue that the direction to relocate to a different worksite constitutes “unreasonable hardship” on him and his family as it puts him under a significant health and safety risk.
The employer manages the high voltage transmission network in NSW and ACT and has restructured its Field Services Division and the Project Delivery Branch where the Project Manager worked. Because of the restructure, the Project Manager reported to different managers in different regions and worked in virtual project teams. He did not need to relocate as he could work anywhere as part of a virtual project team. More importantly, he was not consulted about the need and the reasons for the relocation prior to him being ordered to relocate to another worksite. Under TransGrid’s Fatigue Management Procedure, an employee cannot exceed 12 hours per shift ‘door to door’ meaning, the time from leaving home to commence work to arriving back home after work.
He had applied for and was granted an Individual Flexibility Agreement so he can work from home on Wednesdays. This IFA was modified, and he worked from home on Fridays. He was later advised that this new IFA was not signed but it will be signed if he agreed to relocate. He agreed to relocate and applied for a new IFA but was refused because his role required his presence on site and regular stakeholder interaction.
TransGrid asserted that in the contract of employment signed by the Project Manager, he agreed that when required by TransGrid’s business, he may be directed to perform work at other TransGrid locations on a temporary or permanent basis provided the direction to relocate will not impose an unreasonable hardship. Under the same employment contract, if TransGrid is unable to provide him with a suitable and acceptable alternative role, he is entitled to a voluntary redundancy.
The Fair Work Commission found that the direction to relocate was not unlawful. The only question remaining is whether the direction to relocate caused unreasonable hardship on the employee. There is no definition of “unreasonable hardship” in the law. Several cases had defined the term “unreasonable” to mean a lack of evidence and intelligible justification.
The Project Manager was given almost eight months’ notice of his relocation despite the Agreement notice requirement of only 3 months. His travel time is 5 hours only because he prefers to ride his bicycle. A car ride would only take 1 hour and 25 minutes’ travel. He was given a field allowance to cover the cost of toll fees, petrol and parking. Therefore the Commission concluded that the direction would not cause unreasonable hardship and the employer was able to compel the employee to work at the new location.
Association of Professional Engineers, Scientists and Managers, Australia v. NSW Electricity Networks Operations Pty Ltd t/a TransGrid [2018] FW 6335 (20 November 2018)
Read More
Contravening a modern award makes employer liable for payment of backpay to underpaid employees and civil penalties
Repeated instances of inappropriate, unprofessional conduct and neglect of duties found to be valid reasons for termination
Secretly recording disciplinary meetings with your manager is a valid cause for dismissal
Pecuniary penalty awarded to employee made to do unpaid “dips” before a shift
Refusing a pregnant employee’s return to work – an adverse action prejudicial to employment for which employer meted civil penalty
Coughing in co-employee’s face is a valid reason for dismissal
Pre-school teacher’s resignation upheld as constructive dismissal & wins her old job back after going for unfair dismissal
Farm Manager Forced to Resign Wins Unfair Dismissal Claim
It’s my wife or your job: Failing to please the boss’s wife is not a valid ground for dismissal
