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The Fair Work Commission recently found that a business trading as ‘Perfect Coat Painting’ unfairly dismissed an apprentice after he refused to work a Sunday shift (Mr Troy Currie v The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting [2019] FWC 7462).

A few days prior to the shift in question, the apprentice requested to have the Sunday off as he wanted to attend a family function on the Saturday night and wanted Sunday “for a rest up”.

In response to the request, Perfect Coat Painting told the apprentice via text:

Nah mate, I need you to work Sunday to get this job done, you have a four-day long weekend next weekend you will be fine.”

Perfect Coat Painting submitted that asking the apprentice to work the Sunday shift was reasonable even though he had worked the preceding six days and would not receive (and had never received) penalty or over-time rates. Perfect Coat Painting also submitted that it would be subject to monetary penalties if it could not meet the job deadline, and that this had influenced its decision to deny the apprentice’s request.

After the apprentice failed to show for the Sunday shift, the employer sent him a text that said:

You can find another job mate, you are sacked. I told you [that] you were working today and yet you have ignored me once again. I hope your night out on the p**s was worth losing your job over.”

Commissioner Hunt acknowledged the frustration Perfect Coat Painting had with the apprentice, which included prior issues with the apprentice not arriving at work on time and embellishing start times. Despite acknowledging Perfect Coat Painting were ‘fed up’ with the apprentice, the Commissioner found that:

the request of a young indentured apprentice [was] extraordinarily unreasonable to require him to work repeated Saturdays and Sundays without the payment of penalty rates after having completed his ordinary hours during the week.”

Commissioner Hunt accepted that Perfect Coat Painting were under pressure to meet deadlines but stated that it was not the responsibility of the apprentice to work overtime on a Sunday in order to meet these deadlines.

Ultimately, Commissioner Hunt found that the dismissal was unfair and told Perfect Coat Painting that more should have been done to get the employment relationship back on track.

Perfect Coat Painting was ordered to pay eight weeks’ compensation plus superannuation.

Lessons for employers

The case is a useful reminder that in most instances employers can only require an employee to work overtime where the requirement is “reasonable” in all the circumstances.

If employers wish to take action against an employee for refusing to work overtime (or follow some other direction), it is vital that the direction was a reasonable one.

How EI Legal can help

EI Legal is a firm of specialist employment lawyers. We regularly advise clients on their rights and responsibilities under employment law, as well as representing clients in disputes involving termination of employment.

If you are an employer considering dismissing an employee it is advisable to seek professional advice before confirming the termination due to the inherent risks involved. Please contact us to speak to one of our lawyers if you require advice in this area.

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