The broad reach of the provisions in the Fair Work Act was again highlighted in a recent Federal Magistrates Court decision which found that an employer had breached the provisions by dismissing an employee for refusing to work regular rostered overtime. In making this finding, Federal Magistrate Jarrett held that the employee had exercised a workplace right by refusing to work overtime and ordered the employee be reinstated.
Mr Brown was employed at Premier Pet as a full-time fish keeper when, in July 2011, his employer decided to introduce a mandatory overtime roster, so that necessary maintenance work undertaken on weekends and public holidays was “fairly shared” amongst the staff. Previously, overtime had been on a voluntary basis. While Mr Brown did not object to working overtime occasionally, he refused to work the ordinary 38 hours per week plus additional overtime.
Mr Brown received a letter regarding the introduction of the mandatory overtime roster from Premier Pet, giving him 14 days’ notice of this change. There was limited consultation with Mr Brown about this.
Mr Brown’s employment was terminated because he refused to follow what the employer considered to be a proper direction to work reasonable additional hours. Mr Brown had only been employed for approximately 4 months when his employment was terminated.
Mr Brown brought a claim under the General Protection provisions in the Federal Magistrates’ Court arguing that his employer had unlawfully terminated his employment because he exercised a workplace right to refuse to work unreasonable overtime.
Federal Magistrate Jarrett found that Mr Brown was exercising a workplace right in refusing to work unreasonable overtime. As such, Premier Pet needed to prove that its request for Mr Brown to work rostered overtime was reasonable, which it could not do.
A key factor in the Magistrate’s findings was his view that the personal circumstances of an employee that need to be considered by an employer when requesting they work overtime are not limited to family responsibilities. In this case, Mr Brown’s other commitments, such as an online business which he operated and needed to devote time to, was a relevant consideration that should have been taken into account.
Lessons for Employers
Employers have the ability under the Fair Work Act to request employees perform reasonable overtime. However, it is important that proper consideration is given to a wide range of factors, including not only family responsibilities but also any hobbies or activities an employee may be involved in outside of work that may be impacted by working overtime.
This case is another example of how far reaching the General Protection provisions are, and demonstrates that employers must be mindful of workplace rights when implementing new work practices or policies. It is vital to actively consult and discuss the changes and any implications with the workforce.
Emily Haar, Law Clerk