Painter dismissed 1200 x 626
News 21 November 2019

Business dismisses apprentice for refusal to work overtime

An apprentice painter who was dismissed via text message for failure to attend a Sunday shift has applied successfully for an unfair dismissal remedy at the Fair Work Commission (the "Commission").

Overview of the facts

The business requested the apprentice to attend work on 14 April 2019 to assist with the completion of client work. The business claimed the apprentice had been warned that his employment would be terminated if he did not work the shift. The apprentice refused to work the shift having worked on the previous six days and asked for Sunday off to “rest up”. The employer claimed to have issued a written warning regarding the apprentice’s “performance and communication” 10 months prior to the dismissal. The letter was posted to the apprentice’s home, but he claimed to not have received it, or any warnings leading up to the dismissal. During his employment, the apprentice claimed to have often worked in excess of 50 hours a week, despite being contracted for 38. Notably, he had not been paid overtime and weekend penalty rates.

The business claimed the dismissal was reasonable on the grounds of the apprentice’s refusal to work overtime, and that the overtime request was reasonable because the business would not be able to complete its contractual obligations without the apprentice. The business also alleged that it had dismissed the employee in a manner consistent with the Small Business Fair Dismissal Code.

The Decision

In determining the matter, the Commission considered whether the business had complied with the Small Business Fair Dismissal Code. Finding against this, the Commission highlighted a refusal to work overtime in this instance was not unreasonable and therefore the business did not have a valid reason for dismissal. The Commission noted it was “extraordinarily unreasonable” to require the apprentice to work weekends without payment for penalty rates. The Commission also noted that as an apprentice, his employment should not have been contingent on whether the business would be able to complete its contract on time.

The Commission ordered the apprentice be paid eight weeks compensation.

Lessons/Learnings

Employers need to ensure they are aware of payment obligations, and appropriate wage rates including overtime and weekend rates. There are costly penalties for failure to pay employees correct rates. When asking employees to work overtime for the business, businesses should ensure the request is reasonable.

How we can assist

Understand your minimum obligations for the workplace relations regulations by attending our Know Your Award course. The program will increase your knowledge of common clauses within modern awards, and assist in classifying your employees within the modern award system. The Workplace Relations Advice Line is able to assist member businesses with meeting their award obligations and for assistance with employment related matters. To speak to a member of the Workplace Relations Advice Line please call 8662 5222.

Written by Janet Watt, Workplace Relations Advice Line Advisor

[2019] FWC 7462

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