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Apprentice who refused weekend overtime was unfairly dismissed, FWC rules

By Portner Press on November 11th, 2019
  1. Industrial Instruments
  2. Fair Work Act

The Fair Work Commission (FWC) has ordered a small business employer to pay eight weeks’ wages to an apprentice it sacked, after finding he was unfairly dismissed for refusing to work overtime on a Sunday.

Perfect Coat Painting believed that demanding its employee to work overtime that day constituted reasonable overtime, as it had to complete an urgent job to avoid liquidated damages.

However, FWC Commissioner Jennifer Hunt found the employer’s requirement was “extraordinarily unreasonable” and in the hearing discovered that the apprentice had never been paid penalty rates for any overtime he worked during his employment.

Warning about conduct and attendance

In the hearing, the employer submitted that it had warned the apprentice about several conduct and attendance issues which included:

  • coming to work late;
  • not being prepared for work with his PPE;
  • leaving sites during work hours without permission;
  • leaving work early without prior discussion;
  • not attending for work and failing to notify the employer; and
  • repeatedly claiming payment for hours that were not worked.

While Commissioner Hunt accepted this conduct had been ongoing, and the apprentice had responsibilities to the employer which included turning up to work on time, not embellishing his timesheets and working a reasonable amount of overtime, she found that the employer also had responsibilities to its apprentice.

Particularly to meet its obligations with respect to the Fair Work Act by paying the apprentice the applicable award rate for the work he performed.

Employer was ‘incredibly misguided’

The apprentice had worked weekends on a repeated basis, often working 50 hours per week for the employer when his contract specified only 38 hours.

On one Sunday he refused to work because he wanted to attend a family function the night before and “rest up” the following day. The employer warned him he would be dismissed if he didn’t show up for the shift.

When he failed to arrive, the employer sacked him by text.

The employer submitted to the FWC that because the apprentice had not worked the previous weekend and was not scheduled to work on the upcoming weekend, it could require him to work this particular weekend.

Commissioner Hunt found this submission “incredibly misguided”.

“I understand and appreciate the pressure Perfect Coat was experiencing, trying to ensure the specific job was completed so as not to incur liquidated damages,” she said.

“The request of a young, indentured apprentice was, however, 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.

“He was, after all, entitled to enjoy having weekends off work, and only work weekends where requested and where each weekend work day was reasonable in all the circumstances.”

In finding the apprentice’s dismissal unfair, Commissioner Hunt said “it was unjust and unreasonable to sever the employment relationship on the basis of [the apprentice’s] refusal to work overtime on Sunday after having already worked six days that week”.

She ordered the employer to pay the apprentice eight weeks’ wages in compensation, at a rate to be determined upon the hearing of further evidence.

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