The power and the passion - 'no dismissal jurisdiction' for council employee's passion for the exotic aerial arts of hoops, silks, bars and poles

Is it constructive dismissal to decline an employee request to decrease working hours so they can work more hours with a secondary employer?

In Moore v North Sydney Council [2018] NSWIRComm 1062, Darren Gardner, partner at Bartier Perry convinced the Industrial Relations Commission that there was no ‘dismissal’ when North Sydney Council declined a secondary employment variation request.

Isobel Moore was by day an Events Co-ordinator at North Sydney Council on a maximum-term maternity leave contract, and by night an instructor in the exotic aerial arts of Lyra; Silks and Trapeze. Ms Moore obtained secondary employment approval under s 353 of the Local Government Act 1993 (NSW), with her supervisor understanding she wished to leave early at 3pm on Thursdays to do her aerial instructing second job.

After several months, Ms Moore requested a reduction from her contracted 35 hours to 27 hours a week, so she could increase her hours of secondary work.

Because Council had a number of employees on, or soon to be on leave, and several projects that needed completing, it declined Ms Moore’s request. It also reasonably held some work, health and safety concerns about the total hours Ms Moore proposed working for Council and her secondary employer.

Following Council declining her request, Ms Moore then tendered her written resignation, claiming she had no choice if she was to pursue her ‘true passion’ of aerial instructing.

To the reasonable observer, this would seem to be a classic example of an employee voluntarily resigning to take up other preferred employment.

Remarkably though, Ms Moore claimed she had been ‘constructively dismissed’ because, in her opinion, and based on what she had been told by a solicitor, she had no choice but to resign.

After working out her notice period, Ms Moore filed an unfair dismissal claim.

After hearing all the evidence, the Commission disagreed with Ms Moore’s subjective construction of events and much preferred Council’s version.

In assessing any given case, the Commission considers whether the resignation:

• was given freely and without undue pressure

• was in response to a desire of the employer for the employment relationship to terminate.

During cross examination, it was also established that Ms Moore was also indulging her passion in her own business and at other non-disclosed workplaces, including in the semi-aerial pole dancing arts.

The Commission found that the only effective initiator of the termination was Ms Moore. It was her decision to prioritise her passion for her secondary (and tertiary) employers when the proposed new hours were declined.

The Commission accordingly found that it did not have jurisdiction to hear the matter because Ms Moore was not ‘dismissed’.

What does this mean for Councils?

There are situations where Councils may be obliged to consider the reasonable request of employees to reduce or change work hours. Such situations include carer’s responsibilities, disability or illness. But a request to take up or extend secondary employment is generally not included.

If the reduction in primary work hours is small or can be reasonably accommodated, it should be considered. Ultimately, though, you do not have to accept secondary employment variations if they do not suit business requirements. You can reasonably require the employee to continue working contracted hours as agreed, especially if the variation may result in total hours raising work fatigue issues, or if it would be detrimental to the workload of other employees in a team.

Authors: Darren Gardner and Andrew Yahl