Can inflexibility get you dismissed?
Workplace flexibility in recent times has become synonymous with things like working from home and flexible hours. However, past Fair Work Commission decisions in unfair dismissal cases have shown us that workplace flexibility is a two-way street. Employees, too, need to be flexible when it comes to changes in the workplace that they may not necessarily agree with.
In this article, we explore two such cases where the employee was dismissed for their inflexible attitude to change. These cases provide a key lesson; that sometimes you need to be flexible at work. They also prove that resistance to change can be a serious obstacle for many employees. And that employers can sometimes rely upon a worker’s attitude as a reason to dismiss them or make them redundant.
Teacher who resisted change dragged through 7 years of litigation, left ‘depressed’
Sometimes, it may be more beneficial for an employee to accept and adapt to reasonable changes to their job, rather than resist and fight their employer through the courts. Litigation can often lead to financial compensation. However, it can just as easily turn out unfavourably for an employee in the long run, taking a huge toll on their mental health.
One example of this is the recent Australian Federal Circuit Court case Yu v ACT Education Directorate [2024]. In this case, a former public school teacher was left with depression and anxiety following over seven years of litigation. She had taken the ACT Education Directorate to court alleging her employer had unlawfully dismissed her, breaching its agreement’s job security terms.
While the teacher was awarded $10,500 in damages, she was left with “no confidence in almost anyone or anything,” according to the judge. He also described her ordeal and largely failed litigation as a “very sad and sorry state of affairs.”
Teacher refused to be flexible when faced with redundancy
The teacher, Jing Yu, commenced as a full-time Mandarin teacher at Canberra’s Hawker College in 2010. In 2013, the school had experienced a “significant contraction” in enrollments and was compelled to adjust its staffing levels.
The Directorate told the court that priority was given to “retaining staff who could teach multiple subjects.” As Ms Yu worked full-time teaching only Mandarin, she was informed by the school that her position was to be made redundant. “When asked or directed to teach other subjects, she resisted,” the court said of Ms Yu, adding that she also did not comply with “relatively standard procedures.”
Teacher argued her redundant position was filled
Due to reduced enrolments, in 2014 the school combined beginner, intermediate and advanced Mandarin into a single class. It was taught by a temporary teacher who had been selected to fill a maths position at the school. The school argued that it had not filled Ms Yu’s role. Rather, it said that the Mandarin class was taught on a temporary basis by the maths teacher.
Ms Yu had been transferred to another school where she was not required to teach. She told the court that “she was worried and became sick and unfit for work for three weeks.” The employee also said that she “became anxious, depressed, had difficulty eating or sleeping, felt constant pain, lost self-esteem and enjoyment, and experienced depressive symptoms.”
She was transferred to another school in 2015 to do some relief teaching. But Ms Yu said she “found it difficult to cope when the management asked her to visit classes to learn from other teachers or to perform the duties of a teacher’s aide.” Ms Yu was ultimately transferred to Canberra High School in 2016 and was subsequently dismissed.
Dismissed teacher sought over $180K in damages
Ms Yu subsequently launched legal action against the ACT Education Directorate. The Fair Work Act 2009 states that an employer must not contravene a term of an enterprise agreement. Ms Yu alleged the Directorate breached multiple clauses of its enterprise agreement.
Among the breaches, she alleged that her employer violated a clause that states it will “endeavour to minimise the use of temporary and casual employment.” Ms Yu alleged the Directorate breached this clause by removing her Mandrin teaching position. And then by subsequently filling her position with a temporary teacher.
She also contended that the Directorate also breached the enterprise agreement by advertising a Mandarin teaching position when the position ought first to have been offered to her.
Ms Yu sought $180,000 in compensation for the “distress” she claimed was caused by the Directorate’s breaches of the enterprise agreement. She also sought compensation for the Directorate “misusing its public resource.” That is, by dragging out court proceedings and failing to pay compensation for a justified claim.
Dismissed teacher loses bid for damages
In 2021, the Federal Circuit Court ruled that the Directorate had not violated the enterprise agreement. However, in 2022 the Federal Court overturned this decision. In February 2024, the Federal and Family Court had to decide if Ms Yu was deserving of damages for the distress she suffered due to the Directorate’s breaches.
The court ruled that the distress she had experienced was not caused by the Directorate. But rather, it was caused by her placements at other schools following the abolition of her original Mandarin teaching role. “… [her] evidence indicates a failure by her to grasp that the role that was abolished at Hawker College was not the same as the one that was created and filled by the temporary teacher,” the Federal and Family Court said.
The court also ruled that Ms Yu had not adequately outlined her claim for damages. Also, that the Directorate had not intentionally violated the enterprise agreement. “I have also found that the contraventions have not been shown to have caused psychological injury and were not, themselves, the cause of any compensable emotional or psychological distress suffered by [her],” the court said.
“Very unfortunate”: Court hands teacher pyrrhic victory
Despite finding the Directorate did not intentionally breach the enterprise agreement, the court decided to award Ms Yu damages. It said this was needed “to demonstrate that even well-intentioned public sector bodies will be penalised if they fail in their obligations.”
The court therefore ordered the Directorate to pay Ms Yu $10,500. This was 10 per cent of the maximum damages that could have been awarded. The court noted that despite Ms Yu being awarded damages, her dismissal and legal ordeal was “a very unfortunate if not sad matter.”
“This is so because an experienced teacher. . . in more recent years found herself facing a decline in students (it seems) resulting in Mandarin no longer being taught at her school, or being taught to the same degree.” The court said that when Ms Yu was “asked or directed to teach other subjects, she resisted.” Noting that she now finds herself “depressed” and with “anxiety,” the court said that the whole affair was “a very sad and sorry state of affairs.”
“Stubborn” worker has unfair dismissal claim rejected
Another Fair Work Commission case where an employee’s inflexible attitude saw him fairly dismissed is Wardley v Australian Red Cross [2016]. Bruce Wardley began working for the Red Cross as a manager for communications and marketing in September 2008. He later moved into a Communications Advisor role in 2012.
Mr Wardley was an experienced journalist with decades of experience. He had been a journalist and TV presenter in regional Victoria. And he had been a producer, reporter and chief-of-staff at the ABC before moving into a corporate career. At the Red Cross, Mr Wardley had a positive track record apart from a single issue in April 2016 regarding his attendance and behaviour.
“Resistance to change”: Worker inflexible to changing workplace
In April 2016, the Red Cross initiated a budget-driven restructuring that resulted in 31 redundancies, including Mr Wardley’s position. A new part-time role was created that featured many of the same requirements of his redundant position. However, this role focussed on strategy, data analytics and social media.
Mr Wardley applied for the new role. He felt that the part-time hours would suit his lifestyle. During the interview, Mr Wardley was required to demonstrate his competency in digital media by preparing a Facebook post and tweet. It was with this task that things went south.
The manager who conducted the interview told the Fair Work Commission that when presented with this task, Mr Wardley “overemphasised the use of traditional media.” He also failed to show that he had experience in the use of Facebook and Twitter. Nor a motivation to “be agile and innovative in its use.”
“He was also concerned that Mr Wardley displayed a stubborn attitude and a resistance to change that would make productive collaboration with him in the workplace difficult,” Fair Work Commission records stated. The manager judged Mr Wardley’s performance in the exercise to be “adequate, if unspectacular.” He was subsequently not chosen for the role, with the Red Cross ultimately recruiting an external candidate.
Worker contests dismissal at Fair Work Commission
Following his failed interview, Mr Wardley pursued an unfair dismissal claim against the Red Cross. He argued to the Fair Work Commission that his sacking was unfair because he could have been redeployed into the new position. However, the Red Cross contended that Mr Wardley’s redundancy was genuine. It argued that he was not suitable for the new role due to his resistance to change and lack of requisite skills.
While the Red Cross emphasised that the new role would require new skills, Mr Wardley argued the opposite. He contended that “any differences in the position descriptions were merely a matter of semantics.” He also maintained that he had always utilised social media and measured its outcomes to an adequate degree.
Was dismissal a genuine redundancy?
The Fair Work Commission found that Mr Wardley’s inability to accept the new responsibilities and his resistance to change were significant factors. “Mr Wardley simply did not recognise that he would need to change anything in the way he had performed his work in the past,” the commission noted.
The Fair Work Commission also considered the potential for retraining Mr Wardley for the new role. It agreed with the Red Cross’ assessment that retraining would likely lead to conflict due to Mr Wardley’s inflexible attitude toward his job performance and adopting new methods.
The Red Cross argued that retraining Mr Wardley for the new role would not have been reasonable because social media skills needed to be acquired through experience, which Mr Wardley did not have. Also, that his negative and inflexible attitude towards the demands of the new role meant that retraining would likely be unsuccessful.
The Fair Work Commission also acknowledged that the Red Cross had provided Mr Wardley with opportunities to apply for other positions within the organisation. He was, however, unsuccessful in attaining any of these roles. The Red Cross’ efforts to find suitable redeployment for Mr Wardley were thus deemed reasonable. All these findings led the Fair Work Commission to rule that Mr Wardley had experienced a genuine redundancy. His unfair dismissal application was therefore rejected.
Conclusion to: Can you be terminated for resisting change?
If you have been unfairly dismissed or faced adverse action, harassment or discrimination, give A Whole New Approach a call. AWNA are not lawyers. We are Australia’s leading workplace advisors with over 20 years’ experience helping workers take action through the Fair Work Commission and other bodies.
We can provide the expert guidance you need to seek justice against your employer. However, you need to act fast. You have only 21 days from the date of your dismissal or redundancy to lodge a claim.
Call our expert team on 1800 333 666 for a no obligation, confidential conversation about how we can help you.
Articles similar to: Can you be terminated for resisting change?
What does it mean to disconnect from work
