Is not working a public holiday a valid reason to dismiss?

Steven Pietraszek ats Transpacific Industry Pty Limited t/as Transpacific Cleanaway [2011] FWA 3698

Financial penalties for employer regarding unfair dismissal of employee

The applicant worker (Pietraszek) made an application pursuant to Section 394 of the Fair Work Act 2009 ('the Act') asserting that his dismissal by the respondent (Transpacific Cleanaway) was unfair. The nature of the respondent's operations was to provide recycling and waste collection services for small and large businesses and local government authorities. These services were to be provided to the respondent's clients seven days per week, 365 days per year. This necessitated some work on weekends and public holidays.

The applicant commenced employment with the respondent on 30 January 2006 as a front-lift driver. In early December 2010, the applicant was approached by his operations manager, who informed the applicant that he was required to work the Christmas and Boxing Day public holidays later that month. The applicant was also approached by the leading hand and operations supervisor, both of whom reiterated conversations to the same effect. There was some disagreement about the content of these conversations, but the applicant was adamant that he did not ever intend to work Christmas Day or Boxing Day, and he did not. A meeting was held on 29 December 2010 which the applicant attended with a union representative. The applicant informed the respondent that in order to keep his job he would be willing to work the New Year's Day public holiday, which he did. The respondent undertook disciplinary interviews in early January 2011 and the applicant was summarily dismissed on 4 January 2011.

The applicant submitted that in all of the circumstances, it was reasonable for him not to work on the public holidays in December 2010, and even if he did not have a reasonable excuse, his refusal did not warrant dismissal. In presenting his case, the applicant put forward the following evidence:

• In or about mid-2009, he requested and was given a transfer to another position, so that he would not have to work weekends or public holidays

• At the time of the transfer, he was advised by the respondent in his new position he did not have to work public holidays

• The applicant's wife had a medical condition and could not be left alone for an extended period of time, that being the reason for the applicant's requested transfer
• Prior to January 2011, the applicant had not worked a public holiday for in excess of 12 months;

• The applicant had informed the respondent some time before the Christmas and Boxing Day public holidays that he was not available to work

• The respondent employs a number of truck drivers and had plenty of time to substitute another driver.

He claims that failure by an employee to work a public holiday when he had informed the employer some time before that he was unable to work does not amount to 'serious misconduct'.

The respondent's case was as follows: employees were aware of their requirements of their positions at the time of the engagement. The applicant was transferred from front-lift driver across to the HIAB system. In his role as a HIAB driver, the applicant was informed that he was to be a floater.

The respondent alleges that there were several conversations with the applicant regarding work on the public holidays. The Fair Work Act at section 114(2) states:

'An employer may request an employee to work on a public holiday if the request is reasonable'.

The nature of the employer's workplace or enterprise and the nature of the work performed by the employee

Pursuant to section 114, ss3 of the Act, the employee may refuse the request if it is unreasonable, or their refusal to work is reasonable. Section 114, ss4 of the Act states the following must be taken into account to determine whether a request or a refusal of a request is reasonable:

• The nature of the employer's workplace or enterprise and the nature of the work performed by the employee

• The employee's personal circumstances, including family responsibilities

• Whether the employee could reasonably expect that the employer might request work on a public holiday

• Whether the employee is entitled to receive overtime payments or any other penalty payments on the public holiday

• The type of employment of the employee, whether full-time, part-time, etc

• The amount of notice in advance of the public holiday given to the employee

• The amount of notice in advance given by the employee refusing the request

• Any other relevant matter.

 The respondent submitted that:

• The applicant had not disclosed that his refusal to work was related to family responsibilities

• The applicant knew that he was required to work on public holidays

• The applicant would be entitled to be remunerated at penalty rates, he was a full-time employee, he was informed well in advance, and he wilfully sought to defy instructions.

The Tribunal found that the respondent had made a reasonable request of the applicant to work the public holidays. Further, the applicant had good reasons to refuse to work those days. Also that the applicant's refusal to work seemed to be a valid reason for the dismissal. However, the test the Tribunal is required to apply is not limited to whether the employer had reasonable grounds, on the facts relevant at the time, for dismissing the applicant; but whether on the evidence there was a valid reason for the dismissal. The Tribunal held that considering all the evidence, the applicant did have a good reason for refusing to work the public holidays, and therefore there was not a valid reason for the applicant's dismissal.

Considering that the applicant was not stood down after the alleged 'serious misconduct' and that he worked the New Year's public holiday, the Tribunal found that there was no valid reason for the applicant's dismissal. The Commissioner did note that the respondent had not sought to clarify why the applicant was refusing to work, nor had the applicant sought to provide an explanation. Had this occurred, the circumstances may well have played out differently.

The Tribunal found that reinstatement was not appropriate as the applicant had already obtained another job. The Commission calculated as award of compensation of $12,595.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.