No holiday cheer for Transpacific on unfair dismissal ruling

Transpacific done for unfairly sacking truckie, but FWA criticises employees who refuse to work public holidays without explanation

By Brad Gardner | June 29, 2011

Fair Work Australia has taken aim at employees who fail to explain their refusal to work on public holidays, labelling their actions unreasonable.

In an unfair dismissal ruling involving waste transporter Transpacific Industries, Commissioner Bruce Williams criticised its former truck driver, Steven Peitraszek.

The driver refused to work on Christmas Day and Boxing Day last year, but did not tell management at the time it was because of his wife’s medical condition or that he believed he did not need to work on public holidays.

Williams ruled that Transpacific’s subsequent decision to sack Peitraszek was harsh and unfair, but added that the driver should have explained why he rejected the company’s request for him to work.

"Where an employee does have good reasons for refusing their employers request to work on a public holiday, but does not explain those reasons to the employer, I do not believe it can be said that the refusal by the employee to work the public holiday is reasonable," Williams says.

He says Transpacific, which is based in Queensland but operates nationally, might have reacted differently had Peitraszek explained his refusal to work.

"In the circumstances here if the Applicant [Peitraszek] had fully explained to the Respondent all of the reasons why he was refusing their request for him to work the public holidays then I would view his refusal as reasonable," Williams says.

Peitraszek received $12,595.94 for unfair dismissal, with Williams saying the decision hinged on evidence presented during proceedings, not at the time of the dismissal.

After hearing Peitraszek’s reasons for not working, Williams ruled that the driver did have a valid reason for actions. He also found that Transpacific had no right to sack its worker of almost five years.

"The refusal to work on those days by the Applicant was not serious misconduct at all and clearly did not warrant summary dismissal," Williams says.

Under the Fair Work Act, employers can request staff to work on public holidays. Employees can refuse to work if they believe the request is unreasonable.

The Act requires employers and employees to factor in a number of provisions in determining the reasonableness of a request, including the nature of the workplace, an employee’s personal circumstances, penalty rates and the amount of notice given.

Transpacific claimed its request was reasonable because the waste collection industry demanded service on weekends and public holidays, Peitraszek did not disclose his family responsibilities and he would receive penalty rates.

Williams also found that the operator had given about three weeks notice.

The Transport Workers Union, which represented Peitraszek, argued the driver had been transferred to an area of the business where he thought he would not have to work on weekends or public holidays.

While saying the belief was misguided, Williams accepted that the driver genuinely understood it to be true.

"This erroneous belief had been reinforced by the fact that he had not been required to work public holidays at all for approximately 12 months," Williams says.

During a meeting with management, the company thought the driver had agreed to work but Peitraszek left thinking he understood the company wanted him to work.

"Regrettably there was a genuine misunderstanding between the two from this meeting," Williams says.

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