Fair Work Australia (FWA) has considered the question of when refusal to work on a public holiday is reasonable, in a case which found the employer’s decision to terminate the employee’s employment for failure to work on Christmas and Boxing Day in 2010 to be unfair
Implications for employers
Where an employee refuses to work on a public holiday, employers should carefully consider the circumstances of the request and the refusal to determine whether each is reasonable. The employee should be required to provide reasons for any refusal to work. If no reasons are provided, it is more likely that the refusal will be considered unreasonable. However, before acting on that assumption to dismiss or discipline, employers need to consider the broader circumstances.
By way of summary, the facts of this case were as follows.
- The employer, Cleanaway, provides recycling and waste collection services. Those services are in many cases provided 7 days a week, 365 days a year.
- Mr Pietraszek was a truck driver for Cleanaway.
- On 10 December 2010, Mr Pietraszek was advised by his manager that he would have to work on Christmas Day and Boxing Day in 2010. This was reiterated to Mr Pietraszek by other senior staff.
- Mr Pietraszek indicated that he would not work on those public holidays and did not do so. He did not explain why. Mr Pietraszek did, however, work on New Year’s Day.
- Cleanaway met with Mr Pietraszek in early January. He provided no further explanation as to why he had refused to work on Christmas Day and Boxing Day.
- Cleanaway terminated Mr Pietraszek’s employment for serious misconduct.
Mr Pietraszek’s claim
Mr Pietraszek brought an unfair dismissal claim. At hearing, he submitted that there was no valid reason for termination of his employment and his refusal to work the public holidays was reasonable, having regard to the following:
- when he transferred to his new position in 2009, he was advised that he did not have to work public holidays and understood this to be the case;
- prior to January 2012 he had not in fact worked on a public holiday for 12 months;
- his wife had a medical condition which means she could not drive or be left alone for extended periods of time. He needed to be available to spend time with her and transport her on Christmas Day and Boxing Day;
- he had advised Cleanaway that he could not work on Christmas Day or Boxing Day; and
- Cleanaway had ample time to find another driver to work those days.
Essentially, Cleanaway submitted that:
- Mr Pietraszek was aware that Cleanaway operated on public holidays and that he was required to work public holidays in his role. The request for him to work Christmas Day and Boxing Day was reasonable;
- Mr Pietraszek had initially said he would work Christmas and Boxing Day and had subsequently refused, but provided no reason for the refusal despite being requested for reasons at the time and during the subsequent disciplinary proceedings;
- Cleanaway had warned Mr Pietraszek that a failure to perform work on Christmas Day and Boxing Day would lead to disciplinary action; and
- Mr Pietraszek’s failure to attend for work on Christmas and Boxing Day constituted a failure to comply with a reasonable and lawful direction and warranted summary dismissal.
Fair Work Australia’s findings
Commissioner Williams ultimately found that the dismissal was unfair, for the following reasons.
he noted that section 114 of the FW Act sets out relevant factors to be considered when determining whether a request or refusal to work on a public holiday is reasonable. Those factors include:
- the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
- the employee's personal circumstances, including family responsibilities;
- whether the employee could reasonably expect that the employer might request work on the public holiday;
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
- the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
- the amount of notice in advance of the public holiday given by the employer when making the request;
- in relation to the refusal of a request--the amount of notice in advance of the public holiday given by the employee when refusing the request; and
- any other relevant matter.
- Having regard to section 114, Cleanaway’s request for Mr Pietraszek to work on the public holidays was reasonable, having regard to the section 114 considerations, the nature of the business, Mr Pietraszek’s status as a full time employee, and the fact that Mr Pietraszek was given 3 weeks’ notice of the requirement.
- It was also clear, in the context of section 114, that Mr Pietraszek had family responsibilities and a genuinely held belief that he was not obliged to work public holidays.
- However, Mr Pietraszek did not notify Cleanaway of the reasons for his refusal and should have done so: Where an employee does have good reasons for refusing their employer’s request to work on a public holiday, but does not explain those reasons to the employer, I do not believe it can be said that the refusal by the employee to work the public holiday is reasonable.
Nevertheless, there were other relevant issues.
- Mr Pietraszek had told Cleanaway in November 2010, prior to the 10 December 2010 request that he work the public holidays, that he would not be able to do so.
- There appeared to be a misunderstanding between Mr Pietraszek and his manager about whether the matter would be further discussed at a meeting before a final decision was made as to whether Mr Pietraszek had to work the public holidays.
- Finally, while Cleanaway advised Mr Pietraszek that if he did not work as directed disciplinary action would occur, there was no evidence that he was warned that his employment might be terminated.
- While from Cleanaway’s perspective it may have appeared it had a valid reason to dismiss Mr Pietraszek, FWA’s assessment had to be based on all evidence available at the proceedings, not just on evidence available to Cleanaway at the time of termination.
- On consideration of available evidence, Mr Pietraszek did have a good reason to refuse to work the public holidays when requested and could not be validly terminated for that refusal. He had therefore not engaged in serious misconduct. Also relevant here was that Mr Pietraszek had in fact worked on New Year’s Day and had said he would be available for future public holiday work, subject to his family responsibilities.
- Mr Pietraszek, who had obtained other employment by the time of the hearing, was awarded compensation of $12,595.94 gross, representing approximately 9.5 weeks’ pay.
Pietraszek v Transpacific Industries Pty Ltd T/A Transpacific Cleanaway