Can I Terminate an Employee for Refusing to Work?

As an employer, you do not have an automatic right to terminate an employee if they refuse to work a public holiday.

The decision by Fair Work Australia in the case of Steven Pietraszek v Transpacific Industries [2011] addressed this question. The case considered a situation where an employee did not work Christmas and Boxing Day even though his employer had requested that he do so. The employer then terminated him for not working on these days of work over the holiday period.

The Commissioner held that the employer’s request was reasonable but also that the employee’s refusal was reasonable. In reaching its decision, the Commissioner considered the employee’s personal circumstances, such as a family situation and belief that he would not be asked by the employer to work any public holidays. The Commissioner held that there was no valid reason for termination and that the termination was unreasonable under the Fair Work Act 2009 (Cth).

The Commissioner made an important note that the employer did not ask the employee for the reasons that he was refusing to work the public holidays. It was pointed out that if the employer had asked, the outcome might have been entirely different. An employer should consider any refusal to work a public holiday over the Christmas leave period in the context of the Fair Work Act 2009 before taking any disciplinary action or dismissing the employee.

Key Takeaways

When dealing with issues around employees taking annual leave and working public holidays, an employer should take the following steps:

  • know your employee’s status: This includes understanding their work status, any applicable awards, enterprise agreements and pay rates. It is important to pay the correct entitlements to avoid having to back pay entitlements or fines from Fair Work Australia;
  • acknowledge your employee’s rights: Understanding your employees’ rights with having to work public holidays (including refusing requests to work) will make the process smoother and avoid issues later on; and
  • have a well-organised system for counting annual leave days taken and accrued. Many software systems can now manage this process for you automatically.

Tim Hayter, Principal, Mid West Lawyers

This information is general in nature and should not be relied upon as legal advice. Formal legal advice should be sought for your particular circumstances.