The applicant filed a claim with the Commission seeking compensation against the respondent related to alleged contractual breaches including pay for reduced hours, unpaid overtime, notice period, redundancy, and annual leave entitlements.

The respondent denied the applicant was owed compensation, asserting that all entitlements were paid and that the applicant agreed to reduce her hours to part-time and a four-day working week, with notice and redundancy payments complying with the National Employment Standards.

The applicant initially held a full-time position as Director of Product Development and Customer Experience, as specified in her employment contract.  The contract explicitly stated the position was full-time but did not specify the exact hours constituting full-time work.

On 14 November 2022, the applicant and the respondent met to discuss reducing business expenditure, during which the applicant agreed to reduce her hours to four days per week (part-time, 30.4 hours) from full-time hours. The respondent sent a letter confirming this variation, requesting the applicant’s written agreement, which the applicant did not sign or return, though the respondent provided evidence it was sent via a digital communication platform.

The applicant contested the validity of the variation, arguing that any change to her contract must be in writing as per the original contract terms, and she did not provide written consent. However, the Commission found that the applicant’s oral agreement and conduct were sufficient to validate the change to part-time hours despite the absence of a signed written agreement.

 The applicant claimed payment for overtime and additional hours worked beyond her agreed part-time schedule, including 80.5 logged hours and 117 unlogged hours. The employment contract included clauses stating the applicant’s salary covered all hours worked, including overtime, and that working hours may vary as reasonably necessary for business requirements, averaged over a 12-month period.

The Commissioner noted that the employment contract’s remuneration was an all-inclusive salary covering overtime and that the policies concerning overtime were discretionary and not contractual. There was insufficient evidence to show that hours worked beyond the agreed schedule were unreasonable or required by the employer. Thus, the claim for additional payment for overtime or time off in lieu was not supported under the contract terms and was dismissed.

The applicant’s argument invoking unjust enrichment and quantum meruit principles was considered but found inapplicable because no contractual term entitled her to payment for additional hours beyond the all-inclusive salary. The Commission emphasised that any claim must be anchored in a contractual term, which was not established by the applicant. 

Commissioner Walkington concluded that the applicant’s employment contract was validly varied to part-time hours with a corresponding salary adjustment and therefore claims for a payment based on full time hours was dismissed. The applicant’s claims for additional hours and overtime were also dismissed, as the Commissioner found the employment contract included an "all-inclusive salary" clause covering all overtime and penalty rates, and required work hours to be averaged over 12 months without additional overtime.

However, the Commissioner ruled that the applicant was entitled to two additional weeks’ notice pay calculated on part-time hours, as the employment contract stipulated a four week notice for employees with one to three years of service.  The commission found the applicant was entitled to the full four weeks but had only received two weeks.  Accordingly, the respondent was ordered to pay the applicant two weeks’ salary amounting to $6,153.72 gross.

 

The decision can be read here.