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Sacked: 'I hope your night on the piss was worth losing your job over'

Victory for an apprentice who refused to work on a Sunday.
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Sacked: 'I hope your night on the piss was worth losing your job over'

18 November 2019

An apprentice painter who refused to work on a Sunday because he wanted to party the night beforehand has emerged victorious from an unfair dismissal feud.

The Fair Work Commission heard that when the second-year apprentice didn't show up for work, his boss texted him saying: "You can find another job mate, you are sacked. I told you you were working today and yet you have ignored me once again. I hope your night out on the piss was worth losing your job over."

The apprentice was employed by Perfect Coat Painting from July 2017 until his dismissal in April 2019.

Perfect Coat claimed it had previously warned the apprentice about his attendance, inaccurate timesheets and leaving work sites without permission, and that a warning letter had been sent to the apprentice's home address.

It also submitted the apprentice had been warned the day before his dismissal that if he did not attend for work he would be dismissed.

However, the apprentice claimed he was unaware of any performance issues or prior warnings, and had never received a letter at his home address.

He told the commission that Perfect Coat had not provided him with any reason for his dismissal; he had simply received a text message telling him he didn't have a job anymore.

Weekend work

The apprentice said he had signed a "standard apprenticeship contract to work during the week" and had no contractual obligation to work any additional hours, including weekends.

It then transpired the apprentice had never received penalty rates for any overtime he worked, including weekend work.

Perfect Coat said the apprentice had agreed to work for a flat rate of pay, therefore it "mistakenly" believed it didn't have to pay overtime.

It conceded that since the dismissal it had been made aware overtime rates were applicable, regardless of any purported agreement.

Regardless, it said the apprentice's reason for not attending work was unrelated to pay and did not change the reasonableness of its request to attend work.

'Other dismissal'

Commissioner Hunt had to consider whether Perfect Coat complied with the "Other dismissal" section of the Small Business Dismissal Code, which required that:

  • the employee was warned that if there was no improvement to their conduct or capacity they could be dismissed
  • the employee was given a reason as to why their employment was at risk and that reason was a valid reason based on the employee's conduct or capacity to do the job
  • the employer gave the employee an opportunity to respond to the warning and gave the employee a reasonable chance to rectify the problem, having regard to the employee's response.

The commissioner was satisfied the apprentice had been warned about his conduct prior to his dismissal, although she did not accept he had received a warning letter.

She also noted that the apprentice had responsibilities to Perfect Coat, which included turning up to work on time and not embellishing his start times. This had been addressed during a toolbox meeting and "regrettably" the apprentice took it as somewhat of a joke. The commissioner also agreed the apprentice had obligations to work a reasonable amount of overtime.

But Perfect Coat also had responsibilities to the indentured apprentice, she said, including working the apprentice reasonable hours and meeting its obligations under the Fair Work Act and the relevent award.

Commissioner Hunt said it was "inconceivable in 2019 that an employer, even a small employer, could not be aware of its obligations to pay penalty rates for weekend work after the apprentice has performed work all week. It is difficult to accept as credible [the employer's] evidence that he thought he could reach agreement with his indentured  apprentice to have overtime paid at normal time."

Further, it was "extraordinarily unreasonable" to require the apprentice to work repeated Saturdays and Sundays without payment of penalty rates after he had completed his ordinary hours during the week.

"He was, after all, entitled to enjoy having weekends off work...", she said.

Relevant to the code, the commissioner found Perfect Coat had given the apprentice a reason why he was at risk of dismissal, and he had been informed of other performance issues. He was also informed that if he did not attend for work on 14 April he would be dismissed.

However, she did not accept there was a valid reason for dismissal and, accordingly, Perfect Coat did not comply with the code.

"Far more should have been done by Perfect Coat to get the apprenticeship and employment relationship back on track, and it was unjust and unreasonable to sever the employment relationship on the basis of [the worker's] refusal to work overtime on Sunday after having already worked six days that week."

The commissioner then refused the employer's request for a 50% discount on compensation on account of the apprentice not attending work on 14 April.

She said the request to work the Sunday overtime without payment at penalty rates was unreasonable, and she did not accept the apprentice's conduct was misconduct.

Compensation of eight weeks' pay, less an amount for any earnings since dismissal, was awarded.

Further evidence will be called, taking into account whether the commission should award the base rate of pay for 38 hours only, or take into account the additional hours of work performed by the apprentice.
Troy Currie v The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting (U2019/4595) FWC 7462

 By Marise Donnolley

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