Court finds bus company was right to sack driver who didn’t turn up for Boxing Day shift

The Federal Circuit Court has found a Victorian bus company was right to fire a worker who did not show up for work on Boxing Day in 2015, despite being rostered on for a shift.

A former driver for Ventura Transit, which operates bus services across the state, took an adverse action claim to the Federal Court after he was summarily dismissed in January 2016 over his failure to attend work as directed on the Boxing Day public holiday.

In 2015, the worker had also refused to work the Anzac Day public holiday as directed, but after a conciliation process, the company had agreed to pay him for that day anyway.

However, in the lead up to Christmas in 2015, the worker handed his employer a leave form indicating he would not be able to work Boxing Day. The employer responded by emphasising it was company policy for all workers to attend work on a public holiday if they were rostered to do so.

The worker failed to attend his shift, and Ventura Transit then dismissed him. In taking action in the Federal Circuit Court, the worker argued this amounted to adverse action because the company was firing him for trying to exercise his rights under the Fair Work Act to refuse work on a public holiday.

The business argued he was not protected from this right because he had not given a “reasonable” explanation as to why he could not attend on the day. It also argued its request to roster him on was reasonable as the business was required to operate services on the public holiday and notice had been given to employees on this front.

In deciding the case, Federal Circuit Court Judge Suzanne Jones said a range of factors must be taken into account when determining what is a “reasonable” request to work by an employer or a refusal to work by an employee.

These include the nature of the workplace and what function it performs, whether there’s an established expectation that staff work on public holidays, and the employee’s personal circumstances and family responsibilities.

Judge Jones found Venture Transit “was governed by contractual terms” to deliver its bus service even on public holidays, so workers could reasonably be asked to attend work on days like Boxing Day.

She found the worker didn’t provide sufficient details as to why he couldn’t attend work, beyond stating “family responsibilities”. This was not enough detail in the court’s view for the business to work out whether alternative arrangements needed to be made.

Given these factors, the court found the worker was not entitled to refuse to attend work, and the employer was right to summarily dismiss him for not attending his shift.

SmartCompany contacted Ventura Transit but did not receive a response prior to publication. SmartCompany was unable to contact the former worker for comment.

An employee can never assume “they can just not show up”

Rachel Drew, a partner at law firm Holding Redlich, says this case shows up the importance of communication between an employer and workers if there’s a chance they may need to work on a public holiday.

“The employer should always be giving lots of notice to the employee. If the employee wants to refuse, they can then outline their reasonable grounds for this,” she says.

In this case, the business had already established the expectation of public holiday work, with the court finding rosters were released two weeks prior to give employees plenty of notice.

Drew advises other businesses to let their workers know as soon as possible if public holiday work is common within the company, “and it’s very sensible to outline this at the point of engagement, in their employment contract”, she says.

This case also indicates that in circumstances where an employer has given workers notice, the courts don’t look kindly on staff who fail to show up to work without reason.

“This case demonstrates that very strongly. For an employee, if they have difficulty with something they have been rostered on to do, they need to obtain the agreement of their employer that they are not able to do it, instead of not turning up,” Drew says.  

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