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Looking for some feedback before we obtain formal employment law advice.
We are a small Victorian retail business (under 15 employees). We have a permanent part-time employee who has worked with us for approximately 2 years.
The role was originally advertised as "2–3 days per week".
The employee has generally worked 2 regular fixed days per week. However, throughout their employment there have been numerous periods where they worked 3 days per week for weeks or months at a time when required due to business needs, including owner travel, annual leave, staff absences and other operational requirements.
Examples of periods where they worked 3 days per week include multiple occasions across 2024, 2025 and 2026, ranging from a few weeks to several months.
The business has now grown to the point where we require ongoing flexibility and availability for a third day when operationally required.
The employee has recently advised us that they are only available for 2 days per week going forward and does not agree that they are required to work additional days except for what they describe as occasional emergencies.
We have responded in writing explaining:
We have also given them an opportunity to confirm whether they can meet the availability requirements moving forward.
Our current thinking is that this is not a misconduct issue. Rather, the business requirements have changed and we now require a level of flexibility and availability that the employee says they cannot provide.
The proposed basis for termination would be along the lines of:
"Following consultation regarding your availability and the operational requirements of the business, we have determined that the role requires a level of flexibility and availability beyond that which you are currently able to provide.
As discussed, the business requires regular capacity for additional shifts, including periods where three days per week coverage is necessary due to operational demands, staff absences, annual leave, and business travel.
You have advised that your availability is limited to two days per week and that you are unable to provide the additional availability required by the role.
After considering your response, we have concluded that we are unable to continue the employment arrangement as it no longer meets the operational requirements of the business."
Questions:
We will be obtaining legal advice before making any final decision, but would appreciate feedback from anyone with employment law, HR or small business experience.