‘I have a right to rest!’ Worker sues company over break time dispute

Employer argues that it had valid reasons to terminate employment

‘I have a right to rest!’ Worker sues company over break time dispute

The Federal Circuit and Family Court of Australia (FCFCOA) recently dealt with the case of a worker who said his employer violated his workplace right when he was dismissed allegedly for taking a break.

The worker argued that he had a right to rest after six hours of continuous work but said the employer held it against him. Meanwhile, the employer said there were other reasons for his dismissal.

The worker brought a general protections claim against his former employer, Endura Paint Pty Ltd (Endura Paint).

Endura Paint is in the business of manufacturing and supplying water-based and solvent-based coatings. The worker was employed as a production assistant.

Under the Fair Work Act, a person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

The worker mainly argued he exercised his right to rest after six hours of continuous work, among other claims of bullying and intimidation.

The disputed break time

In May 2018, the worker and his colleague were working away from the main premises of Endura Paint. They fulfilled some remedial works on a client’s pool at a site in Bibra Lake.

According to records, while at the site, the worker sat on the client’s outdoor white furniture, put his feet on a table and took a nap. In evidence, a photo with the worker’s feet up on the client’s furniture was shown. The worker was seen only in his socks.

The worker said taking a nap meant exercising his right to take a meal break. He also said he was entitled “to stagger his meal break in circumstances where he was unable to take a full 30-minute meal break earlier in the day.”

Meanwhile, the employer said it did not dismiss the worker because he exercised his workplace rights. It said his employment was terminated for other grounds, such as unacceptable conduct and performance. It also said the worker committed several unsafe work practices.

“Three female staff members made verbal complaints about him, which mostly suggested that he was arrogant and rude to female staff,” the employer said.

“While operating a forklift, he drove it in an unsafe manner and in breach of Endura Paint’s occupational health and safety policy.”

“He also used a work vehicle without authorisation for his own personal gain and in breach of our company vehicle policy, by driving to an auction site to collect items he had purchased for himself,” the employer added.

Was the worker dismissed for ‘taking a break’?

“Endura Paint did not dismiss him because he exercised his workplace right to a meal break,” the FCFCOA said in its decision.

“Rather, it was his conduct during that break that was the reason for his dismissal, including using the client’s outdoor furniture and putting his feet on the table, wearing socks but not shoes, while his colleague continued to work,” it added.

“This is consistent with what management said in the dismissal letter,” the FCFCOA said, including other grounds relating to his unacceptable conduct at the workplace.

“His dismissal was based on the incident where he took a nap on the client’s outdoor furniture… and it was not because he exercised his workplace right to take a meal break after five hours’ work,” the federal court explained.

Thus, the commission said the employer was within its right to terminate the worker’s employment. The worker merely tried to argue against its decision by citing the break time incident.

Ultimately, the federal court dismissed the worker’s application and favoured the employer.

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