Excessive Work Breaks Warrant Termination

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Excessive Work Breaks Warrant Termination

The Fair Work Commission (FWC) has roundly rejected an employee’s claims that his lengthy work breaks while on night shift were acceptable and part of an ingrained workplace culture, and consequently have dismissed his unfair dismissal action. One question though, which wasn’t addressed in the case, was what checks and balances existed to prevent widespread flagrant abuses by staff at the facility.

The worker’s employment commenced with Melbourne Health trading as Royal Melbourne Hospital (Melbourne Health) on 24 September 2012 until he was summarily dismissed for serious misconduct on 5 September 2019. He had an unblemished disciplinary record during his employment. He was part of the Environmental Services team which provided various cleaning and related duties throughout the hospital.

On 16 July 2019, a manager observed the worker, and 7 to 8 other workers, sitting in the dark in a Tearoom for over an hour without apparently performing any work. A formal investigation commenced, which initially reviewed CCTV footage of the work area for the period 9 to 15 July, potentially involving up to 19 workers.

The viewing indicated that the worker had spent over 30% of his entire time across five shifts sitting in the Tearoom and that this amount was significantly higher than most of his colleagues.

When interviewed, his initial defence was that he “sometimes spent time in the Tearoom while waiting for his next job”, and that he would receive urgent requests via a pager. It was unclear where the practice of relying on a pager had started; however, the evidence was that there was continual work for all the team employees across each shift. At a subsequent interview, he said “that no-one had ever spoken to him about the issue in the past”, and he offered to “pay back his salary for the time spent in the Tearoom”.

In Cmr Wilson’s view, the worker’s behaviour was unacceptable, and he rejected all claims made in mitigation. As he stated in the determination, “I am inclined to agree … that he was engaging in time theft. The fact that (he) made himself unavailable for work for more than 11 hours and 26 minutes over 5 shifts, a period longer than one single shift, and is in the worst of the 19 employees supports that likelihood”.

Further, he commented, “Since the conduct was persistent, repeated, lengthy and indisputably more than most others involved in the investigation, I find it was serious misconduct”.

The application was dismissed.

A learning from this case was the apparent lack of supervision, monitoring or regulation of work breaks prevailing for the entire team, which fostered significant abuses of work-time by staff. Although evidence was not produced in the case, it is reasonable to presume that the violations had been occurring for a lengthy period of time at considerable additional cost to the employer.

Mr JT T/A The Royal Melbourne Hospital [2020] FWC 3628 (16 July 2020)

For queries about employee management or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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