Part Timer Rostering Outside of Availbilities

Hi all,

I have been with a retail (sales) company for 3 years now, on a contract that stipulates a required 12 hours per week, and that we/I must be "flexible according to the company's needs".

I regularly work more than my 12 hours, despite a heavy Uni schedule, but have had no issues with this as it helps the store out. Additionally, whenever on Uni breaks, I take on extra work as required to, again, help out the store; often hitting 30-40 hours per week.

I have placement coming up which is a commitment of 4 days @ 8 hours per day, and additional weekly work which will consume another day (so effectively 5).
Now, the company has recently come up with this new "rule" that all Part Time workers must work a minimum of 3 shifts per week. I have told them that this will not be possible, and 2 days per week is my maximum - whether that's a total of 12 hours, or 2 full days (I don't mind), and which 2 of my 3 "non-placement" days are used also does not bother me.

My question is whether they have grounds to dismiss me if I do not meet their "rule" of 3 days per week minimum. I understand that I must work 12 hours (at least) which I can do, but the vagueness of the "flexibility according to the company's needs" is what I'm unsure of. On one hand, you cold argue that my 2 days per week equals inflexibility, but on the other hand, the fact that I regularly work extra shifts when required and am only restricted for 5-10 weeks at a time (due to placement) could meet the title of "flexible".

Advice would be appreciated, because if they don't have any grounds to dismiss me, I'll be digging my heels in and forcing them to keep me on, make me redundant, or fire me and file for unfair dismissal. I've done more than enough favours for the company with nothing in return, so I am looking after myself in this instance.

Thanks

closed Comments

  • Have a chat to your boss, explain your situation about placement and see what they say? I'm sure most workplaces would be fairly understanding.

    Alternatively, is it possible to do placement during the day and work at night for one day each week?

    • My Manager is on board with me; it's the area management that is pushing this.

  • +1

    Does your contract only stipulate 12 hours per week?
    Being a part time (permanent) contract, doesn't it also specify what days and times you work?

    • This

    • +1

      It doesn't specify anything other than the 12 hours per week, and the flexibility line that I quoted.

  • +4

    You've been there for 3 years. Surely you have enough rapport with your manager to talk to them about the new policy before asking advise from strangers on the internet

    • My Manager agrees with me but he has the screws put on him by higher ups.

      • +1

        In that case maybe you should leave now on a good note with the company…?

        That or be a causal contact for the days you can work.

        • +1

          The company doesn't have any casuals.

          Leaving on a "good note" could cost me literally thousands of dollars in payouts. As a Uni student whose issue is restricted work hours (as finding a job on these availabilities will be almost impossible) this money will make a huge difference.

        • +7

          @Drew22:

          No, I'm well aware of what the redundancy payout is within my industry (and more specifically, my company, as there were recent redundancies). That figure can potentially be usurped by fairwork-incited payouts, pending rulings.

          Do not embarrass yourself in a public space such as this; take your petulance elsewhere.

        • +9

          @Slippery Fish:

          "your definately" someone who didn't make it past the 10th grade.

        • -5

          @Strahany: if that's all you have my feelings are not hurt. Don't try to belittle others, that's why I hit reply in the first place, it's a shame uni couldn't teach you some respect.

        • +7

          @Slippery Fish: Pot, meet kettle.

          Respect is earned, not given. When my only interaction with you is the tripe you served up, then one can surmise that you've certainly not earned said respect.

        • -3

          @Strahany: well this got off topic, btw I was talking about your response to knick, where you lost mine first.

        • @Slippery Fish: where does it say therefore?

        • +4

          @Slippery Fish: Using the word 'therefore' is wankery…?

  • +1

    It probably depends on your contract (particularly if you're not on a fixed weekly roster), however it's pretty standard practise that casuals and part timers are required to have a minimum availability. All the retail places I have worked require full weekend availability plus an extra day (which would normally be whatever day late night trade is). They won't necessarily work you every weekend, but that is the requirement. I know of some workplaces that can be more flexible and go outside of that policy, but it normally depends on how good an employee you are.

    It's not their responsibility to work their business around you.
    Imagine if an employee said they could only work Monday and Tuesday. They're the quietest days of the week in retail and if they don't need you those days, rostering you for 12 hours is just wasting money. Even if you only work weekends, it could mean they have to roster thier best person on other days, when the weekends would make them more money. The reason they hire part timers for 12 hours is the ability to flex you up, but get a more reliable staff member than casual positions normally give you.

    Just like you need to allocate your time to what's important (your study), they need to allocate staff hours to the needs of the business. If you apply for other jobs, I don't think there's many retail positions that would hire someone available for 2 days a week. Maybe try hospitality and work nights.

    • My contract stipulates nothing about particular days.

      I understand the business must look after their interests. However, I find it rich that they pull this, yet I don't hear a peep from them when I was putting in 70 hour weeks (32 at Uni + 38 at work; this doesn't include study or assignments) on multiple occasions to do them a favour when other staff quit/went on leave.

      • +7

        Yes, but you get paid for those extra hours. So while it is very helpful to them, you're not doing it out of the goodness of your heart.

        Unfortunately that's part of business, and I don't think you have any recourse, as you are drastically changing your availability. If that new availability doesn't suit the business, then that's that. I can't think of anything in the award that covers you, but if you're in the retail union speak to them.

        • Oh, I've got no doubt that my temporary inability to work the extra shift that they require will not be something that the company and I can settle on.

          That's why I'm trying to determine the extent of their legal ability in this situation, since they will want to move me on, and I will try to achieve the best personal result out of this.

      • +1

        I would say giving some leeway to good workers so that they stick around, is looking after their interests. I think the problem here is that like most area managers, they just see numbers. They don't know how good a staff member you are so will happily take no interest in your needs.

        Are you able to take time of this job while you do placement?

        • +1

          Don't get me started about performance. This store has been perpetually underperforming for 24 months, whilst I've been the only one hitting (or getting close to) target. Plus they've had an influx of new staff due to people quitting, so one would think stability is key (and why my manager wants to keep me) but the company's logical capability is lacking somewhat, in this respect.

  • Use annual leave or go casual

    • Can't get approval for 10 weeks straight annual leave. And the company doesn't hire casuals; going casual would be forfeiting my position.

      • +1

        If you can do 2 days/week but they want 3 shifts minimum, can you work 2 days + 1 annual leave day each week?

        • I floated that idea, too. But they shut it down, which is fair, since weekly use of annual leave would make sense only in the case of not meeting my minimum hours. The sticking point, for them, is working extra days.

        • +4

          @Slippery Fish:

          Except my store isn't open nights; rather obtuse observation.

    • Or take leave without pay.

      • They didn't approve that. I believe in an attempt to push me to just quit.

        • -7

          Reading your whingeing, I am not surprised they're attempting to push you out.
          It doesn't sound like a specialist role that will cause the business to go under, should you choose to move on. I think Universities should teach more real life skills. ~ You are not a beautiful or unique snowflake.

  • +2

    Thanks for the replies so far, but a bulk of the comments are missing the crux of the situation.

    My question is whether or not they have the grounds to dismiss me without recourse. If they do, then I will resign to make it as smooth as possible. But if they don't, then I'm not going to forfeit almost 2 months in redundancy pay / fair work compensation to do them a favour (by quitting) when I've done nothing but help them over the years with nothing in return. I could go into details about our relationship, but there's no time to outline everything.

    Yes, they're a business. And, yes, they have to look after their own needs. I've no qualms with that. But I also have to look after my own needs which is what I'm seeking to do, if possible.

    • +4

      I've done nothing but help them over the years with nothing in return.

      If you haven't got favour with management (all the way up) and, as you said, they only care about sticking to their specifications, then they clearly don't care at all about you or your favours. That implies the only recourse you have is your legal standing; and the '12 hours per week availability'. If you can prove you have met your end of the contract by being available according to your contract, and you have a clean history AND a manager who can vouch for your merits, you seem to have a strong case for a FairWork hearing.

      That doesn't mean you WILL take it there, only that you are WILLING to take it there. If upper management gets a threat of a valid risk of liability of unfair dismissal, they may be willing to negotiate your hours with more flexibility in mind. You offer both a stick and a carrot (your loyalty, history & alternative shifts) to encourage talking.

      Of course, spreading out annual leave claims for shifts that you can't work, one a week, also seems a legitimate method of satisfying their criteria. Perhaps, depending on your contract, your available hours are reduced by the leave hours taken? So therefore you legitimately meet your two shifts availability on Sat & Sun for 8 hrs, and the remaining 4 are spent on your other shift.

      Avoiding a legal recourse is generally desirable, but not always unavoidable, so any loopholes your payroll manager can offer directly are usually the best solutions.

      • +1

        I've tried my best to open lines of discussion with higher ranking staff than my manager (i.e the ones that made this decision). However, any opportunity was never granted. Any attempt by my manager to discuss this with them was left with a flat no, with their reasoning being that "we can't let one person get away with working less than three shifts, because then everyone will want to". Apart from the fact that this is just a "slippery slope fallacy", it goes without saying that my working less than three shifts would be an advertised affair. And besides all the aforementioned, if it was so important to them, then they should write it into their contracts, rather than making arbitrary decisions and enforcing them as if they were contractual.

        I've done everything I can to do this smoothly or, for the lack of a better term, civilly. And this isn't the first time that I've had to remind them that there are laws in place to protect employees (not paying work meetings yet demanding compulsory attendance, not paying before/after shifts despite 30-60 minutes of unpaid work etc etc). I hate companies that flex their power over their employees, and I make a point of fighting back where my legal right is to do so. And that's where I find myself now. Other people were, should I say, "heavily coerced" into changing over to casual so that the company could stop rostering them without punishment. I'm not going to do them any such favour.

        • +1

          Speak to HR directly.

          They are the people who will have to prepare and attend your fair work hearing.

          HR really hate that stuff.

        • +5

          Perfect approach. Your tactic should above all be about being as fair reasonable as possible in order to get a mutually agreeable result. On face value, they should not be able to dismiss you without recourse. And understanding & doing the following sets you up nicely if they do try it on…

          So avoid taking sick leave or annual leave until resolved. Actions like these expose you to discipline or a perception you are not pulling your weight. Keep doing what you do, and what you have agreed with your manager. He is clearly on your side, don't jeopardise that. It is an asset.

          There are two incredibly important yet simple things to do in this situation. Both of which FWA will look very favourably on if it ever needs to go that far (and indirectly HR will be forced to have a similar view). They are keep a "contemporaneous record" or diary of your interactions with your manager and Area on this specific topic, all your suggestions and the negative outcomes. The other is to concisely follow up the key discussion points in writing and give these to your manager, keeping copies of course (Memos or emails). The aim is to build your own legal paper trail, and a paper trail within the company of all these refusals and reasons given, plus your willingness and the difficulties the policy changes create for you. These become wonderful legal documents which your FWA solicitor will love you for (HR less so). Use a style which makes you and your manager the good guys, but is neutral about the area manager.

          So where does HR really fit? HR's job is protect the company from legal action. So they will tend to shit themselves when you have a set of historical legal documents outlining the issues which kill off the usual "manager said, you said, area said" lies.

          I'd also consider not copying HR in on these Memo's or emails, because they will talk to the area manager. This also doesn't blindside your manager and keeps your manager onside, providing the ammunition he/she needs to look after you.

          There is another aspect. You have a employment contract that you should check to see if it mentions the number of shifts for your minimum 12 hours. If it does, you are in the clear. If it doesn't then it is not a contract matter but a policy matter. The company can change policy at any time. However, there is a general principle that employees should be no worse off under such changes. This is usually legally limited to pay matters. A solicitor can advise you better than I. This is why keeping a good working relationship with your manager is important at a pragmatic level.

          On the other hand neither FWA (or HR) like senior managers who construct situations (via policy or not) to force employees out. The term for this is "constructive dismissal". Look it up. And again this is why keeping a good working relationship with your manager is important at a pragmatic level. I'd ask your manager for a copy of the policy.

          Good luck!

        • @Musing Outloud:
          Thank you for your extended response. This has given me some good information to work with; I felt like I've been on the right path so far, but haven't been entirely sure.

    • dont quit.
      try and get your payout.
      no matter how much you help them out they wont appreciate it.
      they just look at it as you doing your job, regardless if you help them more than others.

    • +4

      Two months redundancy for three years? That seems like a lot?!
      People at my work didn't get that much for ten years

    • -1

      "…when I've done nothing but help them over the years with nothing in return".

      Were you not payed for your labour?

      • I don't think redundancy comes into it. Redundancy would be if they are doing staffing cuts and will not hire an employee to replace you. This case is about the employee not being able to work the required hours. Since they don't have a fixed 12 hour roster, and they have now announced their availability has cut down from 5 days a week (I assume) to 2 days a week, it no longer suits the business. They are entitled to give notice as long as they follow the minimum notice period.

        If anything it's a severance pay and I'd be very surprised if it's 2 months. According to this page by fair work after 3 years it's two weeks notice. FairworkDismissal

        Think of it this way, if you decided to leave the job how much notice would you have to give them? For most PT it's 2-4 weeks, for management it's often 1-6 months. And you don't even need a reason. I think it's fair that if there is no misconduct, harassment, unfair dismissal then that notice is by them is also reasonable (but as the link above says the longer you work the more notice you require).

        Fair work even describe unfair dismissal as "when an employee is dismissed from their job in a harsh, unjust or unreasonable manner." And the General Retail Award, just says termination is covered by the National Employment Standards (which goes to the link above). Honestly if they give you two weeks notice I don't think you have anything to force them.

  • +2

    It seems like you are already pretty clues up your situation. Based on what you have said you are most likely covered by an enterprise agreement as the Retail Award doesn't allow part timers to have such flexibility. Read your agreement and follow the steps in the dispute resolution section.

    If the company holds their ground then yes they could end your employment. Seems like you would be a good chance of a redundancy or success via unfair dismissal of it came to that.

    If you get along well with your manager then let them know you are going to dig your heels in and will go down swinging!

    • -1

      That's what I feel is the case. Honestly, I didn't want it to reach this point, but they've brought it on themselves with their conduct. I extremely doubt it will make them change their ways, but if it gives them difficulties then that's their own fault.

  • +3

    You've been there as a part time employee for 3 years.

    Just mention the magic words "union" "fair work" and watch your issue resolve itself.

    They might come back and ask you to work 12 hours in 2 shifts.

    • +4

      How has nobody else mentioned "unions". This is why unions exist.

    • I am not currently part of a union. I guess I should jump on board now, as the day of decision is close.

      • +4

        I don't think thats how unions work….you can't just join when the going gets tough. Its not fair to legitimate union members, and most unions would reject requests for help if the issue pre-dated membership.

        • +2

          Some unions allow new members to pay back-dues (say 3 or 6 months) if they have current issues that require assistance. They would also be expected to remain a member after their issue has been resolved.

        • +2

          You certainly can do this, but you have to pay dues from the start of the year.

          It's one of the ways they get new members.

  • -2

    call in sick, or use annual leave , seems they are unreasonable.

  • My understanding is that if they want to change your working conditions (and from what you have said, this ruling is doing that) they need to advise you all in writing of the alteration in your contract.

    As you have an actual contract, then this should be a letter addressed to you stating the 3 shift rule.

    An email or general bulletin Is insufficient as is just cHanging their policies.

    If this has not happened, get legal advice,

    Join that union. then contact them as they may be able to help with the legal advice and taking action. Unions are very good at playing heavy weight. There must be other employees who have the same issues.

    Placements are onerous and demanding but the higher management don't understand that as their degrees (if they even have one) wouldn't have required them.

  • +3

    The area management is not so much being a-holes as being plain dumb. Your boss should be the one making the decision for the company in this, not them, because your boss is far better placed than them to judge what's in the company's interests here, he being the one accountable for your results. It never ceases to amaze me just how abysmally managed so many Australian businesses are. Demotivating, and possibly losing, a loyal hard worker who knows the job - and one who may then spread the word what (profanity) they are to work for BTW - is gonna cost them far, far more than a little flexibility in their attendance rules.

    But as far as you are concerned I'd normally say to join a union and let them do the talking, except that the shoppies' union is notoriously corrupt and useless - far more concerned with stopping gay marriage and winning ALP senate preselection than fighting for their members. It's a pity you're not in construction - the CFMEU is a proper union (as you can tell by the business lobbies and their tame press screaming about "union thuggery").

    So I'd just take some sickies - if they sack you as a result well more fool them.

  • +1

    Check your award/contract. Being part time usually specifies not only hours, but days as well, otherwise you're a casual. They might be paying you permanent part-time but treating you as a casual which isn't allowed. However, as mentioned, you may be under an enterprise bargain agreement which could over-ride the award.

  • +4

    Join the union, talk to fair work, stick your heels in. Unless you have an agreement with them (personal or enterprise) with them it would be difficult for them to enforce the 3 shifts a week if it's just a policy. Also who said you can't take 10 weeks of one day a week annual leave if you have enough leave? Unless you have mandatory annual leave eg for a Christmas shutdown, it's your leave. Subject to business requirements you should be able to take it when you want. Good luck

  • Perhaps consider taking your annual leave for the weeks where you are on placement? Kind of sucks but hard to see how they could reject that

  • Hmm. I think there is more detail required.

    For example: if you currently work every Monday' and Tuesday as standard and your change in circumstance means you can now only work Saturday and Sunday (which the company doesn't require from you) then I think you'd be screwed. Just because you're permanent part time it doesn't give you the ability to demand a change in shift.

    Most area managers I've encountered like an easy life, so if your manager had been able to rejig the store roster to accommodate you with no extra hours spent then I'm sure this would have been agreed.

    Sounds to me like there'd be an additional cost to accommodate the request and in that case the area manager should say no. If you were a good employee then you'd hope reasonable effort would be put in to enable you to get some decent hours, but that might need you to be flexible (ie a different store nearby with a vacancy) until you can get back to your usual routine.

    • I've been plonked on every weekend for 3 years without change; it's always the weekend + weekday(s) XYZ. The only change is dropping the XYZ (or offering to move one weekday to a Friday as required).

      There is not set shifts with respect to any agreements or contracts.

      • Then the only 'reasonable' reason for the area manager to say no is if accommodating you costs the company unnecessary additional cost. If your manager has made it cost neutral then you should be fine when HR get involved.

        Of course accommodating you could still be a precedent vs their new policy of 3 shifts. I'd guess then their appetite to assist could be skewed by how highly they rate you. If they think you are a poor performer then they probably don't have much incentive to help you get to a workable solution.

  • Stop winging and move on !!!

    • Very insightful of you.

  • I had a clause like that during my part time. The only thing that saved me was my manager, which I can assure you is able to protect you in the case that they try to push you to quit. If your manager agrees with you, he should be able to compromise as a middleman between you and the upper management. Otherwise, they DO HAVE grounds to dismiss you. I hope that helps, however I would fight it out WITH your manager because it seems like you're getting the shit end of the stick. Best of luck.

    I was previously a permanent part time worker.

  • +1

    I've watched someone have the same argument and HR reasoned that as the minimum shift time is 4 hours long and you have a 12 hour contact, the company could reasonably expect you to be available for 3 days - you may fall into this bucket too.

  • Can you do a three hour shift during late night trade on a Thursday or Friday after placement? It would be a compromise if you could make it from placement on time.

  • Try contacting fairwork

  • Contact fair work and talk to them… If you tell them where you are working they can usually bring up the award or agreement for you and give some basic advice. FW does as much as possible to help employees where they can.

    I see you mentioned working 70 hour weeks - including uni and work. I guess from an employer's perspective that is rather irrelevant unless other employment/responsibilities are impacting your ability to perform your role which might be a clause they can get you on.. however you might also find that fair work might also say if you have regularly been working same duties/hours for X (I think it's 6) months then that becomes your permanent role.

    There's a lot of ifs and buts! Goodluck employment law sucks sometimes!

  • +1

    Macca's won't be worse off just leave

  • So you say you've spoken to your manager and he is on your side? Well if that's the case he can accommodate for your situation. If he is using the "my hands are tied, it's area managements directive" excuse then he doesn't care about you at all and your just another cog in the machine.

    Do you like working there? If not, leave and find a new job. Staying in a job you don't like because of potential redundancy payouts is incredibly immature. Pro tip from someone with 20 years experience across a variety of industries - companies rarely make individuals redundant. They will make your life really, really shit at work until you quit on your own accord. They will manage you out of the business.

    If you like working there, state your situation to your manager and express how you love working there and you've been a loyal employee for over 3 years and that you can still meet the minimum hours required but can only work 2 days a week due to study requirements. If he can't accommodate to your needs, find a new job.

  • If you are a part timer, they have grounds to dismiss you for declining to take on more hours.

    You may be entitled to hold your ground for redundancy payout, but this will damage you in the long run. The employer can make your remaining shifts hell and whatever goodwill you worked hard for will not be reflected when you need a referee.

    You are in uni to gun at a better job. Don't let the current one be the best you will ever have.

  • Not sure what state you live in, but isn't it like $35 to be heard in VCAT (or another state equivalent?) for an unfair dismissal case and you can represent yourself? Just keep pushing back until they sack you and then file a claim in VCAT. Definitely look up what your options are, ie even if they sack you unfairly, maybe it will cost more to pursue/settle than is worth it, especially if you need legal representation.

    Just to tick that box, i'm guessing you're not part of a union eg SDA?

    • Fair work ombudsmen may help too

  • My daughter works for Coles, and is right now on her 6th uni placement (5 full days a week for 6 weeks at a time). She just applies for Leave without pay. It is never a problem and they always understand that uni students need time off for placement.

  • -1

    File a sexual harrassment or bullying complaint against an employee, or go on stress leave or some sort of other leave for a mental illness. That will give you leave (maybe with pay!!) for the duration of your placement! Easy..[Disclaimer - don't actually do this]

  • I could be wrong but after 6 months I was under the impression that you must be offerred a PPT job!

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