3 min read

When can you dismiss an employee for refusing to work overtime?

Under the Fair Work Act (FW Act), a full-time employee may refuse to work more than 38 hours a week if the additional hours are unreasonable.

Therefore, if you dismiss an employee for refusing to work additional hours, they could challenge the dismissal as a contravention of the general protections provisions in the FW Act.

In Brown v Premier Pet [2012] FMCA 1089, an employee who worked as a full-time fish keeper in a Brisbane fish store made this very claim.

Here’s the background of the case:

Premier Pet (the employer) initially offered voluntary overtime to employees to undertake routine maintenance work on non-trading days, including Saturday, Sunday and public holidays. However, after a while, the employer gave Brown (the employee) 14 days’ notice that the overtime would become mandatory and that it would require him to work three additional hours on a non-trading day once every seven to 10 non-trading days.

The employee objected and suggested that he be granted time in lieu during the working week, but the employer refused to discuss the matter and threatened him with dismissal. The employee then attempted to refer the dispute to Fair Work Australia but had his employment terminated.

In court, the employer cited that the reason for dismissal was that the employee had refused a direction to work reasonable additional hours. However, the employee claimed that by refusing to participate in the involuntary non-trading day roster, he had exercised a workplace right, namely his entitlement to refuse to work unreasonable hours. According to the employee, the employer had taken adverse action against him by dismissing him for a proscribed reason.

In a general protections claim, the FW Act requires the Court to presume that the alleged adverse action was taken for the reason put forward by the employee unless the employer can prove otherwise. Ultimately, in the above case, the Court found that the employer had not been able to demonstrate that requiring the employee to work additional hours was reasonable.

What is reasonable in terms of additional hours depends on a range of factors (set out in s 62 of the FW Act). Many of these (such as risk to employee health and safety) were not relevant in this case, but the Court considered that the following factors were:

  • The employee’s personal circumstances, including his family responsibilities. The employee lived with his mother who required his assistance and he also conducted a business as an internet retailer of swords and wanted to devote his time to that. The employee also did not want to work more than 38 hours a week because of the effect it might have on his obligation to make contributions from his income to his trustee in bankruptcy.
  • Lack of negotiation or discussion about the proposed involuntary roster. The employer did not attempt to discuss or negotiate the issue with the employee, nor did it entertain any of the employee’s suggestions (e.g. taking time in lieu during the week).
  • The employer’s failure to provide evidence of the amount of overtime employees at the business usually worked. By failing to produce this evidence, the employer couldn’t demonstrate that requiring the employee to work involuntary overtime was reasonable because the Court had nothing to compare it to.

So what can you learn from this case?

  • Before you discipline or dismiss an employee for refusing to work overtime, you need to be able to prove that it was not unreasonable to require the employee to work those hours. Section 62 of the FW Act sets out some of the factors that are relevant to this question, but it is not an exhaustive list, so you will need to gather your own evidence and try to consider all angles.
  • You need to be prepared to consult with an employee and listen to his or her objections about an overtime requirement before seeking to discipline them for not meeting it.

And one more thing to remember…

If an employee fails to comply with a lawful and reasonable direction to work a reasonable amount of overtime, then the employee may be guilty of serious misconduct. This would mean that you could dismiss them without notice.

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