The following article from ‘Workplace Express’ highlights once again the need for employers to be very clear on the processes surrounding terminations. Remember that no matter how good an HR Manager you may be you cannot remove an employee’s right to lodge a claim.

The Federal Magistrates Court has found that a national company contravened the Fair Work Act’s general protections when it dismissed a fish keeper because he refused to work regular overtime on weekends and public holidays.

Federal Magistrate Michael Jarrett ordered live fish distributor Premier Pet Pty Ltd to reinstate the employee, finding that he had a workplace right not to work unreasonable overtime under the Act’s national employment standards, and the company had not satisfied the onus on it to show it did not dismiss him for insisting on that right.

The court heard that in July last year the company decided to introduce mandatory rostering arrangements to apply to all employees at its Brisbane fish room. It wanted routine maintenance work to be carried out on non-trading days, including Saturday, Sunday and public holidays.

Premier Pet said the work had been done by a few employees on a regular basis, but management wanted to spread it across the whole of its workforce.

The employee was the only one to receive a letter explaining the operational reasons for the change and giving him 14 days notice of the new roster. The court inferred from this that he was the only employee who had a problem with working the overtime.

The company terminated his employment on July 15, and Federal Magistrate Jarrett said the reason was his refusal to participate in the mandatory overtime roster. While the employee had lodged a dispute with FWA prior to his dismissal, the magistrate found that his employer was not aware of this and it was therefore not a factor in the termination of his employment.

The federal magistrate said that under s62 of the Act the employee had an entitlement to refuse to work unreasonable hours.

He said the Act’s reverse onus provisions required Premier Pet to demonstrate the hours it had asked the employee to work were not unreasonable.

Considering the factors set out in s62(3), the magistrate said the employee’s “personal circumstances” relevantly included that he ran an internet retail business dealing in swords, and that he was entitled to devote time to it.

On the needs of the enterprise, the magistrate said it seemed the new rostering arrangements were introduced not to deal with any particular problems in the business, but rather to respond to a view that the employee was not pulling his weight.

Under the “any other relevant matter” heading, the court said it was a consideration that there had been no real negotiation over the new roster. It was a case of “the employer’s way or the highway”, the magistrate said.

Another matter of “considerable significance” was the absence of any evidence that “having regard to the overtime that [the employee] otherwise works on a regular basis, the imposition of further overtime on an involuntary basis is not unreasonable”.

The magistrate said it was also important that the employee did not refuse to work overtime. “Nor does he refuse to work overtime on the weekends, because his suggestion was that there ought to be some time off in lieu or some recognition in his ordinary hours, during the working week, which take into account the time that he worked on the weekend, so that for his own purposes – his own legitimate purposes, in my view, his working hours do not exceed a particular total.

“That there could be such a time-off in lieu arrangement between the employer and the employee is expressly provided for in the award.”

Premier Pet argued that reinstatement was not appropriate because the employment relationship had irretrievably broken down.

But the magistrate said the senior managers who had had disagreements with the employee were no longer with the company. He also said limited evidence from the company about a downturn in its business did not detract from the fact that it was obviously a business of “some size”.

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