Small Business

Fair Work Commission finds dad has right to flexibility to see kids

An Adelaide fishing shop has run into trouble from the Fair Work Commission after making roster changes without considering a father's family responsibilities.

Divorced dad Jaymon Hocking worked as a sales assistant at Tackle World Adelaide Metro and cared for his children every second weekend. 

His usual roster was Wednesday to Saturday but, after three years, Mr Hocking was shown a draft eight-week roster that scheduled him on for six of the next eight Sundays.

After Mr Hocking objected, Tackle World owner Tom Treloar texted him, saying, "Please don't stress mate. We'll work it out. You will see your kids. Don't think anymore of it." 

Mr Hocking replied, "It's all good, I love my job … always want to be there for it … I'm prepared to come in early have a coffee and chat about it with you and Jamie before work if you like."

In another text message he said, "I just need to see my kids … they come first." 

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Mr Hocking had several discussions with Mr Treloar and his managers at Tackle World about amending the roster so he could see his children.

He argued that, in the end, he requested two Sundays off a month but was denied this and dismissed by Tackle World, with Mr Treloar saying, "Give me back the keys, I'm very disappointed in you."

Tackle World denies this and claims Mr Hocking said, "I have the offer of two other jobs and if you won't agree to this now, I'm giving notice of my resignation now." 

The Fair Work Commission did not consider whether Mr Hocking's resignation was forced but found Tackle World breached the retail award by making roster changes without considering family responsibilities.

Deputy president Karen Bartel found Tackle World had not complied with its obligations under the retail award to consider its employee's position regarding changes to rosters or hours of work and the roster period exceeded the four weeks required by the award.  

Andrew Douglas, principal at law firm Macpherson Kelley, said employers needed to look to discrimination legislation and relevant awards when dealing with people with child and caring responsibilities. 

"This is a big thing for employers; nearly all employees are caught by awards below executive level," Mr Douglas said. "The awards generally require an obligation to consult for major changes like roster changes, that's not merely sending texts saying 'This is what we are thinking about doing' but it is sitting down with the employee involved."

Responsibility for caring for others is an attribute at law that is protected, it doesn't matter the gender.

Andrew Douglas

Mr Douglas said employers needed to be familiar with their employees' rights and entitlements under the relevant awards.  

"To simply institute an illegal roster and then to not consult properly is what made the commissioner find [Tackle World] clearly acted improperly," he said. 

Mr Douglas said it was a given that fathers as well as mothers had caring responsibilities. 

"Responsibility for caring for others is an attribute at law that is protected; it doesn't matter the gender," he said. 

Tackle World did not respond to a request for comment before publication and MySmallBusiness was unable to contact Mr Hocking. 

Note: The store involved in this case was the Tackle World Adelaide Metro. Tackle World is a marketing cooperative of 54 separate businesses around Australia, of which the Adelaide store involved is one.

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