Fair Work: What is the law around refusing overtime?

In a recent decision, the Fair Work Commission considered an employee who was dismissed after refusing to work an overtime shift. The applicant had worked as an apprentice painter at the respondent since July 2017. His apprenticeship contract required that he work 38 hours each week, and he had no contractual obligation to perform any additional hours, including weekends. When the applicant commenced employment, he agreed to work for a flat rate of pay and consequently did not receive any overtime rates.

One week in April 2019, the applicant was rostered to work on Sunday. He requested to take the day off to attend a family celebration and “rest up” for the week ahead. The applicant had worked every day that week, including Saturday.

The respondent refused the applicant’s request for leave and stated it advised the applicant that he would be at risk of dismissal if he did not attend work. When the applicant failed to present for work that Sunday, the respondent terminated his employment via text. The applicant was paid no remuneration in lieu of notice.

The applicant asserted that there existed no valid reason for his dismissal. He submitted that the respondent’s direction for him to work on Sunday was an “unreasonable request”, particularly given the additional hours he had already worked that week.

Despite the respondent’s failure to pay the applicant two weeks’ notice, the Commission accepted that it did not intend to summarily dismiss the applicant, finding his termination fell under the “other dismissal” category set out in the Small Business Fair Dismissal Code. However, it found the respondent had a responsibility to its indentured apprentice to meet its obligations under the relevant modern award and the Fair Work Act. It also noted that, under the award, an employee may refuse to work overtime hours if they are unreasonable.

“The request of a young, indentured apprentice was… extraordinarily unreasonable to require him to work repeated Saturdays and Sundays without the payment of penalty rates after having completed his ordinary hours during the week,” the Commission said.

With this, the Commission held that the applicant’s dismissal was unjust and unreasonable. Compensation payable to the applicant is yet to be determined. 

Key Takeaways:

• Many employment contracts provide that an employee is expected to work “reasonable overtime”
• However, an employee may refuse overtime if the request is unreasonable
• When dismissing an employee, small businesses are bound by the Small Business Fair Dismissal Code
• Although the Commission will consider a small business’ lack of HR support, small business employers must be aware of their employment law obligations