Fishy business: Court reinstates worker after aquarium company sacks him for refusing overtime work

A court has ordered the reinstatement of a worker who was sacked by an aquarium fish company after he refused overtime work.

Adam Brown was employed by Premier Pet as a fish keeper and was dismissed after he refused to work occasional overtime for routine maintenance required on Saturdays, Sundays and public holidays.

Premier Pet introduced a new mandatory roster to incorporate the routine maintenance to try and share the load between all employees. It was a change from the previous roster where a few employees had regularly conducted this maintenance on a voluntary overtime basis.

Brown said he only wanted to work his scheduled 38 hours a week, with occasional overtime, and objected to the requirement to work overtime on weekends. He also requested to receive time in lieu for his weekend overtime work, which was refused by Premier Pet.

The Federal Magistrates Court found Premier Pet did not meet “the onus on it to demonstrate it did not terminate [Brown’s] employment for the reasons that he asserts”.

The decision was based on the Fair Work Act which sets out that an employer must not “request or require” an employee to work more than their maximum hours of work in a week, “unless the additional hours are reasonable”.

“In my view, (this section) creates an entitlement in an employee to refuse to work additional hours,” Federal Magistrate Jarrett found.

“By refusing to participate in the involuntary non-trading day roster, (the employee) has purported to exercise a workplace right, namely, his entitlement to refuse to work unreasonable hours.”

Andrew Douglas, partner at M&K lawyers, told SmartCompany it is not unlawful to require employees to do reasonable overtime but the problem was the way Premier Pet went about the process.

“In this case is the obligation was imposed without consultation or discussion so they had no knowledge of the inconvenience caused and when he refused they gave notice,” Douglas says.

He says Brown had a workplace right to refuse unreasonable overtime and therefore the onus in the case to prove that the overtime request was not unreasonable sat with Premier Pet.

Premier Pet failed to consult with Brown about the overtime, investigate the extent of inconvenience to him or look at alternatives.

“Employers are entitled to require workers to undertake reasonable overtime and workers are able to refuse unreasonable overtime so the issue is, what is reasonable?” he says.

Douglas says businesses need to look at the nature of role; the need for that person in particular; the amount of work the person has already done in overtime; the level of personal and family responsibility the person has and how easily that can be adjusted; and the period of time you give that person of notice.

“If you act reasonably and sensibly you can manage overtime in your business. But if you choose to act in a non-consultative and foolish manner it will not be reasonable and the court will find against you,” he says.

Alexandra Marriott, manager of workplace relations policy at the Victorian Employers Chamber of Commerce and Industry, told SmartCompany the case provided a useful lesson to businesses.

“It does demonstrate to employers just how complex the issue is and highlights employers need to be very mindful of whether the request is reasonable and highlights the importance of communication and discussion around that,” she says.

“We see the case as a really strong reminder that employers need to keep a lot of factors in mind when asking that an employee works extra hour. They also need to look at agreements or awards that cover this as well, they can and do contain provisions that relate to ordinary hours and overtime.”

Premier Pet was contacted but did not respond prior to publication.

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