In a recent decision, Fair Work Commissioner Christopher Platt ordered compensation to an employee whose stand down, while legitimate, was considered unfair given the employer’s approach to preserve the hours of more diversely skilled employees to the detriment of the applicant who was less diversely skilled.

Background

The employee was a Customer Service Operator for airline service provider Menzies Aviation and worked part-time due to child caring duties.

He was trained to work on one airline and in the mishandled luggage portion of the business, however due to a wrist injury he was unable to complete the required tasks for this part of the business.

The customer service operator  worked part-time with his rostered hours being between 8.00pm and 2:00am. He had flexible work arrangements with restricted hours due to his child caring responsibilities.

Menzies had initiated a number of stand downs since the start of the COVID-19 pandemic in March 2020. The employee was included in the third round of stand downs between 30 March 2021 to 3 May 2021.

During the second shutdown, the employer provided all employees the opportunity to upskill on different airlines, however the employee did not express interest in or complete any additional training.

Instead, the employee contended he was still able to perform arrivals work, as well as work for other airline providers,   one of which had ceased scheduling flights from July 2020. The customer service officer made this claim despite the airline that he was trained to work for only having one flight during the second and third stand down periods.

The third stand down period ended on 3 May 2021. In an email sent to the employee on 2 May 2021, he was advised that he had been ‘stood up’ and was given several shifts in the coming weeks. However, he did not attend any of those shifts and submitted his resignation  on 13 May 2021.

The employee subsequently made an application for the Fair Work Commission to deal with the dispute, claiming that the stand down was selective, targeted and without legal merit.

Findings and legal principles applied

Commissioner Platt was satisfied that the stoppage of work was legitimate, and the employer could not have reasonably been held responsible.

However, Commissioner Platt was most concerned with the employer’s considerations of fairness between the parties as required by s 526(4) of the Fair Work Act 2009.

“The evidence was that  the employer issued rosters that preserved the hours of more diversely skilled employees to the detriment of employees in the position of the applicant (those less diversely skilled),” Commissioner Platt said.

The Commissioner also noted it was evident there was work available that fell within the stood down employee’s skills.

“Whilst I can understand Menzies seeking to retain its more valued employees, Menzies’ decision not to provide any work to the Applicant imposed an unfair burden upon him and did not result in a fair outcome,” he said.

Decision / outcome

When taking into account the fairness between the parties, Commissioner Platt conclude the stand down would have been considered fair if Menzies had rostered the employee to perform 20 percent of the hours required by his contract during the third stand down.

While Commissioner Platt accepted that the work available to the customer service operator, which met the requirements of his flexible work arrangements, was reduced,  the evidence confirmed that there was work available that fell within his skills.

In making the orders, Commissioner Platt considered the operational demands on the company, the work available that the employee could have performed and the limits on his capacity to work. The employee was awarded about 20 percent of his wages during the period of the stand down.

Implications for employers 

Employers should be mindful of the principles of fairness, even when exercising legitimate stand down rights. It may be tempting – and seem correct – to prioritise the most highly skilled employees when apportioning available work, however, employers must consider all employees for all available shifts they can perform.

An interesting point that is mentioned, but not explored in the decision, is that while Menzies had an enterprise agreement, it did not contain a stand down provision.

There is room for speculation over whether this dispute could have been avoided had Menzies had a term addressing stand downs in its enterprise agreement.

For advice on any of the themes or matters issues within this decision, contact a workplace relations specialist at your local AMMA office.