Told to move centres and change nappies, a teacher quit and won her job back

What happened

Ms Phair was a university-qualified early childhood teacher. She first worked for the employer, which ran early childhood centres at 15 locations around suburban Sydney, from 2014 to January 2019, when falling enrolments at her centre ended that job. A few months later she was re-employed to work in the preschool room at its Bondi centre.

When she was re-hired, she explained why she wanted to leave her other childcare job: she had been made to change nappies rather than teach the older children. Her new contract was part-time, 24 hours a week, eight hours a day over three days. The work went on without any incident or problem until December 2019.

On 19 December 2019 she was called to a meeting with two managers. She was told that a teacher who had held her role before her was returning from Ireland, so she was being transferred to the employer's Narwee centre on one week's notice. There she would work with children aged 0 to 3, change nappies, and work only two days a week, in 10-hour shifts.

The meeting and the ultimatum

Ms Phair became visibly upset. Her manager said words to the effect of "Don't tell me you don't want to do nappies the decision's been made". Ms Phair replied, "I'm not ready to retire." When she asked to go home, she was told to finish her shift. The transfer was, in substance, permanent.

Later that day, the employer's payroll manager asked her to sign an acceptance of the transfer and the new hours. On 24 December her manager emailed that if she did not reply that day, the employer would treat it as her "not accepting your transfer/position within our organisation". On 30 December her solicitors wrote that the transfer breached her contract and the award, and gave notice of her resignation as a constructive dismissal. The employer replied that she had agreed to the transfer, and that if she now wanted to resign, it would accept the resignation.

The legal test: when is a resignation a dismissal?

Only a person who has been "dismissed" can bring an unfair dismissal claim. Under s 386(1)(b) of the Fair Work Act 2009 (Cth), a person is dismissed if they resigned but were forced to do so because of conduct, or a course of conduct, of their employer. This is often called a constructive dismissal.

The employer objected that Ms Phair had simply chosen to leave. Commissioner Cambridge said the question is whether the employee had no other realistic option but to resign. An ultimatum of "resign or be dismissed" is the obvious case, but subtler conduct can have the same effect, so the whole sequence of events must be examined.

What the Commission decided

The Commission preferred Ms Phair's account of the meeting to her manager's, whose evidence it found inconsistent. It found the transfer was issued without any consultation, as a non-negotiable fait accompli, with fewer ordinary hours, longer days and work the employer knew she disliked. The 24 December email confirmed an ultimatum to accept the transfer or be dismissed, and the employer was comfortable with the resignation because that was the intended or likely result.

The contract did say she could be employed at Bondi "or elsewhere as reasonably directed". The Commission accepted that the move from Bondi to Narwee was not, by distance alone, unreasonable. But the contract also fixed her ordinary hours at 24 a week, changeable only by agreement, and the employer did not negotiate. The direction also breached the consultation and part-time employment provisions of the award. She had been forced to resign, so she was dismissed.

The Commission then applied the s 387 factors. There was no valid reason: she had no performance or conduct issues, and there was no discernible reason why the other teacher's return meant she had to be moved from Bondi to Narwee. She had no chance to respond and no support person, and the manager's approach showed "a manifest absence of compassion, respect, caring, dignity, or kindness". The dismissal was harsh, unjust and unreasonable.

Getting her job back

Ms Phair asked for reinstatement. The Commission found there had been no genuine loss of trust and confidence, she had worked harmoniously with the Bondi staff, and the employer gave no evidence that reinstatement would be inappropriate. It ordered her reinstatement, with continuity of service and her lost pay restored; the amount was left for the parties to agree, or for the Commission to decide.

What this means for you

If you are told to accept a major change to your hours, duties or workplace, it is worth checking what your contract and award actually allow before you decide what to do. Put your concerns in writing and keep copies of what you are told. A resignation is not automatically a dismissal: the question is whether the employer's conduct left you no realistic choice, so consider getting advice before you resign. A Fair Work unfair dismissal claim must be lodged within 21 days of the dismissal taking effect.