Facts. In Gorval & Ors v
Employsure  FCCA 231, Mr Sergey Gorval, Matthew Lynch
and Christopher Mahoney (the "individuals") were employed
full-time as employment lawyers for Employsure (the
"Employer"). In their contract of employment, they were
all required to work hours which were "reasonably necessary to
fulfil the requirements of [their] role" and their core
business hours of work were 8:30 a.m. to 5:30 p.m. Monday to
Friday. During the week, they were allowed up to one hour of lunch
a day and worked a total of 45 hours a week.
Each individual made a small claim under the FWA, alleging
they were entitled to compensation for unpaid overtime. They
relied on s 62 of the FWA which provides that An employer must not
request or require a [full-time] employee to work more than 
hours in a week unless the additional hours are reasonable.
Mr Gorval made additional claims of $2,700 for a bonus payment
for introducing a client to the Employer under s 323 of the FWA and
$5,000 for back payment of wages upon discovering that he was being
paid $5,000 less per annum than the two other individuals.
Reasoning. Judge Altobelli rejected the
individuals' first argument that they were paid on their lunch
break and therefore they worked 45 hours. No evidence was adduced
by the individuals that they had worked during their lunch breaks,
and up to the point of the hearing in court, no claim had been made
that they were entitled to payments during lunch breaks. Nor was it
made expressly clear in their employment contracts. Therefore, on
the basis that a one-hour lunch break was taken from Monday to
Friday, the individuals would have worked only up to 40 hours.
Regarding the maximum number of hours under s 62 of the FWA,
Judge Altobelli did not consider working two additional hours per
week to be unreasonable, taking into account the legal nature of
the work the individuals were doing and the culture of working
longer hours in the legal profession.
As to Mr Gorval's bonus payment claim, Judge Altobelli
reasoned that a difficulty for Mr Gorval relying upon s 323 of the
FWA was that Mr Gorval could not show that the bonus payment was
"payable to [him] in the performance of work". However,
Judge Altobelli relied upon the accrued jurisdiction of the court
and considered Mr Gorval's claim as being restitutionary. This
meant that the Employer gained a benefit, from Mr Gorval
introducing a client to them and it would have been unjust if they
did not compensate him for that benefit. Accordingly, Mr Gorval was
entitled to receive a payment of $2,700.
Regarding Mr Gorval's back payment of wages claim, Mr Gorval
relied upon evidence that he was told by the Managing Director of
the Employer that his salary situation would be rectified
"quickly". The situation was not rectified until nearly
three months later. Judge Altobelli was unable to see how the
dispute could be dealt with under the FWA. Despite this, Judge
Altobelli relied upon the accrued jurisdiction of the court and
regarded the term "quickly" as being a period of two
weeks, and therefore Mr Gorval was entitled to be paid the
difference in pay, subject to taxation.
Consequences. This decision demonstrates that
the number of additional hours required for work in a particular
role will often vary with size of the Employer and the
We thank associates Michael Whitbread, Clare Langford, Jay
Tseng and Joshua Kang for their assistance in the preparation of
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.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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