The employer, a waste collection service operating every day of the year, asked an employee to work on Christmas Day and Boxing Day.  The employee was dismissed after failing to work on either days.

The employee had recently transferred positions so he would not have to work on weekends or public holidays.  The employee had requested the transfer because his wife had a medical condition, did not have a driver’s licence and could not be left alone for extended periods. 

FWA noted the relevance of the entitlement to be absent on a public holiday under the FW Act.  It held that:

  • the employer’s request for the employee to work on the public holidays was reasonable, taking into account the nature of the business and the employee’s full-time status;
  • the employee had reasonable grounds for refusing to work on those days because of his family responsibilities; but
  • the employee’s refusal was unreasonable because he did not properly explain his reasons to the employer. 

Nevertheless, FWA found there was no valid reason for the employee’s dismissal because he had good reasons for refusing to work, had previously advised the employer he would be unable to work on the public holidays and had not engaged in misconduct.  Accordingly, the dismissal was unfair. 

Mr Steven Pietraszek v Transpacific Industries Pty Ltd T/A Transpacific Cleanaway [2011] FWA 3698