With the Queens Birthday long weekend around the corner (for most States) the common question of; Can an employee refuse to work?, or put another way, Can a business require an employee to work a public holiday? has come up again and the answer is yes…to both. This HR Highlight will explore the considerations for requiring and refusing to work a public holiday and explore what is reasonable a requiring, refusing and response. 

Wherever possible businesses should proactively and positively work with staff on setting a public holiday work schedule that meets the needs of the business and fairly meets the needs of all of the staff. A stouch over requiring and refusing to work a public holiday is not something any business needs, however, in circumstances where some staff are unreasonably refusing to work public holidays, placing a higher burden on other staff, it can be helpful to understand the nuances of requiring a staff member to work on a public holiday, and the responses available if they unreasonably refuse to do so.

Public Holiday Recap

A Public Holiday is a day that has been declared to be just that, a holiday. Many businesses close and their staff enjoy a day off, without loss of pay.

But there are some industries that cannot just close, and others that are able to be open and trading.

If a business is trading, then the staff who do come to work are entitled to appropriate penalty rates of pay for the time that they work. For more on the requirements to pay staff who are either; working on a public holiday, or usually work on the day a public holiday falls and are instead electing to not work that day, please see; https://acapmag.com.au/2021/03/easter-is-here-public-holiday-review/

Employee: “I dont want to work” vs Manager: “you are rostered and need to work”

If there is a dispute about working the public holiday reasonableness will be the test.

It will need to be determined if it was reasonable for the business to require the employee to work. If it is found that it was reasonable for the business to require the employee to work, then any direction to work amounts to a lawful instruction, and failure to follow lawful instructions may amount to grounds for termination of employment.

It will also need to be determined if it was reasonable for the employee to refuse to work. If it is found that it was reasonable for an employee to refuse to work and the business took the step of termination, then that termination would be found to be unfair.

Reasonably Required

If there is a dispute about the reasonableness of an business requiring one of their staff to work on a public holiday the court will look at several elements to determine if it was a reasonable and lawful instruction.

  • Is the workplace essential?
    • That is to say, did the workplace need to be open with a particular staffing level despite the fact that it was a public holiday. As was highlighted throughout the COVID-19 Pandemic, fuel wholesale and retail are an Essential Service. While there is some argument for other industries to run lower staff numbers through a public holiday period, the nature of particularly a long weekend, typically places a higher demand on the fuel wholesale and retail businesses, leading to a higher need for staff not a lesser need.

      If the workplace is essential, it is a big indicator of reasonableness of a requirement to work, as is the increased staff need.
  • Employee forewarned about public holiday work?
    • That is to say, did the business tell the staff member that the business trades on public holidays and that they would be expected to work public holidays. This is the reason many contracts of employment have a clause similar to “this business trades 7 days a week including public holidays”.

      If the employee is notified in writing in the engagement documents that they may be required to work public holidays, it is a big indicator of reasonableness of the requirement to work. While shorter periods of notification (say one or two rosters in advance) have also been found to be reasonable.

Reasonably Refused

If there is a dispute about the reasonableness of an employee refusing to work on a public holiday the court will look at several elements to determine if it was a reasonable refusal AND if the communication of the refusal was appropriate.

  • Employees status?
    • That is to say, if the employee is a casual then it is one of the rights of casual employment to accept or reject shifts with no explanation or implication on their continuing employment, as such it is reasonable for a casual employee to refuse to work a public holiday and it would be considered unreasonable and unfair for the business to terminate the employee for refusing to work the public holiday (it arguably may rise to the higher standard of Adverse Action given the nature of refusing shifts as an employment right that casuals hold).
  • Business given notice of refusal?
    • That is to say, even if the business is essential and the employee knew they may be required to work a public holiday, if the employee provided adequate notice to the business that they refused to work then the refusal may be considered reasonable. What is adequate notice is another thing that would need to be determined on a case by case basis.
  • Personal circumstances?
    • That is to say, if the employee has personal circumstances that contribute to the refusal, such as carer responsibilities, then the refusal may be considered reasonable. For example if an employee is a single parent of school aged children and the public holiday falls on a school day, it would heavily weigh as reasonable for the employee to cite personal reasons for the refusal to work and for that to be considered reasonable.

Communication is key

It is important to note that communication is one element that is assessed on both sides of the ‘reasonableness test’.

For example the employee may have a valid reason for refusal to work, but it may be that because the employee did not communicate that reason to the business and thus it may be reasonable for the business to require the employee to work and to move to performance management or termination if the employee refuses.

On the other side if the business does not communicate the need to work the particular public holiday, either through short notice rosters, or changing trading hours, then it would be reasonable for the employee to refuse to work, even if the business is essential and had provided general information about working on public holidays.

Responding to refusals

When a business has reasonably required an employee to work a public holiday and the employee refuses to work, performance management (up to and including termination) for failure to follow lawful instructions are options for the business in response, but these options are drastic and the business should carefully consider taking such a step and ask first;

Is the employee a casual? If yes this would be an unreasonable response

Is it possible the employee has personal circumstances that they have not communicated to the business? If the employee simply said “I’m not working” the business may be technically correct in responding based on that statement only, but it would be asked at any Commission proceed for unfair dismissal, why the business had not asked the employee why and sought to discover if there were genuine personal circumstances that should have been considered prior to a response

Does the refusal balance against length of service, age, personal circumstances etc? Like any dismissal in a dispute about unfairness the business will be asked to show that the dismissal was not unfair given the length of service, age and personal circumstances of the employee. A situation where a young new starter who had been with the business for only a few months, and had been clearly told they would be required to work public holidays and had this particular public holiday confirmed 3 weeks before it fell who then refused to work could reasonably be argued to have failed to follow a lawful instruction and based on all circumstances to be reasonably terminated for same. However, an employee who has long tenure and caring responsibilities who refuses to work, if terminated, is likely to be found to have been terminated unfairly due to the balance of the infraction against the total circumstances.

Learnings for fuel businesses

Fuel wholesale and retail businesses are essential, and most trade 7 days a week, so public holiday work is something that needs to be managed. Businesses can reduce the friction around public holidays by;

ensuring that the engagement documents note public holiday work will be required if applicable

drawing rosters or providing advice about who is to be rostered to work on upcoming public holidays ideally 2-4 weeks before the holiday

responding to refusals with careful consideration and follow up questions if requried before taking performance management or termination steps

if termination for refusal is a likely response it will still need to follow the procedural fairness requirements of any performance management process (see; https://acapmag.com.au/2020/08/hr-highlight-performance-management-series-part-1-calling-a-meeting/) or you will be facing an unfair dismissal or adverse action claim (see; https://acapmag.com.au/2020/07/hr-highlight-unfair-dismissal-series-part-1-what-does-fair-dismissal-look-like/)

More Information

Here to Help

ACAPMA members are reminded that ACAPMA has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can call on the advice and support of the ACAPMA Employment Professionals via employment@acapma.com.au .

HR Highlights are things to consider, implement and watch out for in your business.

They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.

ACAPMA Membership is affordable at only $810 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts.  Click here to learn more about ACAPMA Membership.

Elisha Radwanowski BCom(HRM &IR)
Executive Manager Employment and Training
ACAPMA

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