Refusal to participate in on-call roster justifies Supervisor’s termination

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Refusal to participate in on-call roster justifies Supervisor’s termination

The Fair Work Commission has upheld the dismissal of a Supervisor who objected to being placed on an after-hours rotating on-call roster, finding that the request was reasonable in the circumstances and that the refusal to participate constituted a failure to comply with a lawful and reasonable direction.

The employee had been engaged by Aaction Traffic Pty Ltd (the Employer) on 6 August 2018 as an Operations Supervisor, a salaried position. Following a restructure later that year, he was promoted to a regional roster on an enhanced salary. The employee’s business involves the supply of a full range of traffic management services to the building and civil construction maintenance sectors on a 24 hour seven day a week basis.

The Supervisor had concerns from the beginning with being required to participate in an on-call roster, claiming it had not been raised with him until Christmas 2018. The roster required him to take a work phone home once every five weeks and attend the site of an accident if required. There was some flexibility amongst senior staff to swap weekends to minimise the impact on their personal lives.

The Employer argued that the direction to include the Supervisor on the roster was a reasonable one, reflecting both the standard industry practice as well as being consistent with the Position Description that required him to comply `with any reasonable direction from the Managing Director”. He also noted that the Supervisor was involved in developing the roster and, therefore, would have known of his expected participation.

 On 11 May 2020, the Supervisor requested to be removed from the roster as he claimed it was affecting his marriage and mental health. The request was temporarily granted, but following a complaint from another employee two months later, the company issued him with an ultimatum that he was being demoted to an alternate part-time position as he would not participate in the roster.

The Supervisor engaged a union organiser to have discussions on his behalf with the Managing Director. The two options put forward were to either reinstate him to his position without being on the roster or pay him $50,000 ‘to go away quietly’. The Employer’s response was to dismiss him.

Deputy President Nicholas Lake’s decision was that the Employer’s request for the Supervisor to participate was a reasonable request and that the refusal constituted a breach of implied duty, therefore giving rise to a valid reason for dismissal.

The Deputy President based his decision on several factors, including determining that the roster provided flexibility, was not onerous, that the Employer had tried to accommodate the Supervisor’s concerns, and that the Supervisor’s salary was “commensurate to the responsibilities of their role, of which this (participating in the roster) was one”.

Consequently, he determined that the Supervisor was not unfairly dismissed.

Mr JR v [2021] FWC 2650 (11 May 2021)

For queries about employee misconduct, lawful directions, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 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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