She refused a flexibility deal, complained, and was sacked unlawfully

What happened

Ms Kanata started on Tyro's customer support phones on 31 March 2011. Tyro supplies payment terminals to businesses. By 2019 she was, in the Court's words, “the highest paid member of the Customer Support Team by a long way”, with no evidence of any earlier concern about her work.

Her husband died in 2016, leaving her the sole carer of their young daughter with no relatives in Australia. Night shifts, worked mostly from home, let her care for her child. Her 2011 contract paid a 40% loading for overnight shifts, and in 2018–19 she earned about $14,000 above her base pay.

In 2019 Tyro moved the team to fixed shifts and placed her, as she preferred, on the permanent night roster. Then came new standard contracts with a fixed salary and no shift loadings. She asked to see the promised “pay contract” first. The Court accepted that her manager told her not signing before the company's stock exchange listing would cause a problem for her and for Tyro. She signed on 28 November 2019. The judge said Tyro's changes had “a decided quality of ‘bait and switch’”.

The flexibility deal she refused

On 10 February 2020 Tyro offered her an individual flexibility arrangement, or IFA: an agreement, allowed by s 144 of the Fair Work Act 2009 (Cth) and the award, that changes how a modern award applies to one employee. It offered $78,234.88 plus superannuation with no loadings: less than she had earned working nights only occasionally. She would not sign, and questioned the figures.

Tyro's position was plain: sign, or move to Monday to Friday day shifts. In April it formally moved her off permanent nights, and on 4 June 2020 it rostered her permanently on day shift. Meanwhile she sent many emails complaining that she had been pressured into the new contract, and said she had no choice but to involve the Fair Work Commission.

Discipline followed. A formal warning, delivered on 15 April 2020, said she had not phoned in her absences. A final warning on 2 June 2020 concerned the number and tone of her complaint emails. On 30 June 2020 she was dismissed. Tyro's letter blamed her handling of two customer calls.

The legal test

Section 340(1) of the Fair Work Act stops an employer taking adverse action against an employee because the employee has, or has not, exercised a workplace right. Adverse action (s 342) includes dismissal and changing an employee's position to their prejudice. Workplace rights include being able to take part in making an IFA (ss 341(1)(b) and 341(2)(g)), and making a complaint or inquiry about one's employment (s 341(1)(c)(ii)).

The worker must prove the action and the workplace right. Then s 361 reverses the usual burden: the action is presumed to have been taken for the reason the worker alleges unless the employer proves otherwise. The employer must show the protected reason was not a “substantial and operative” reason, usually through the decision-maker's own evidence.

What the Court decided

Judge Doust found the shift changes, both warnings and the dismissal each contravened s 340(1). The manager said the shift change was about cost. The judge rejected that: Tyro had already removed the loading from her contract and could have paid the IFA salary without her signature, so “it was simply the applicant’s refusal to enter into the IFA that was the reason”.

On the first warning, the rule about phoning in absences “was not applied in practice”. Human resources had recommended only a verbal warning; that was dropped as her complaints about the manager escalated. Of the final warning, the judge said: “The very basis for the letter was the fact that the applicant was making complaints.” The judge found she was “repetitive and dogged” but “had good reason to be aggrieved”, and had given Tyro grounds for discipline, but Tyro could not prove that the manager's reasons did not include her complaints and her IFA refusal.

After hearing the call recordings, the judge found the reasons in the dismissal letter “confected, or at least significantly exaggerated”. In one call she passed a medical practice, whose terminal had been down for three working days, to the colleague already handling it. In the other she transferred a caller at the end of her shift because she had to pick up her child. She was dismissed because of her complaints; the judge was not satisfied the IFA refusal still played a part. The manager was found personally involved in each contravention under s 550.

What she did not win

The Court held that the “better off overall” test for an IFA compares it with the award, not with an employee's better contract, so her claims that the IFA involved undue pressure or a misleading statement failed. Tyro's emails offering the choice were not threats, and there was no coercion or undue influence. She was not dismissed because of her caring responsibilities, and the claim against the head of human resources failed.

What this means for you

If you are asked to sign an IFA, saying no is a protected choice, and so is asking questions or complaining about your pay and contract. If worse shifts, warnings or dismissal follow, keep the emails, rosters and messages: here the call recordings and records were central.

For employers: the decision-maker's real reasons are what count, and a court will test them against the documents. A general protections dismissal claim must be lodged with the Fair Work Commission within 21 days of the dismissal.