Disciplinary Action for Refusing to Work on Public Holidays - Part 2

Posted by Malcolm Campbell on 28 October 2014

In part 2 of this Blog series we consider what may transpire if an employer disciplines an employee for refusing to work on a public holiday.

If an employer takes disciplinary action against an employee for failing to work on a public holiday (if the employer believes that the refusal was unreasonable in all of the circumstances) the employer runs the risk that the employee may commence proceedings against the employer. 

The term “disciplinary action” includes but is not limited to the following actions:

  • Change of Job description
  • Demotion of duties
  • Reduction of hours
  • Reduction in remuneration 
  • Dismissal

Under the Fair Work Act 2009 employers are not permitted to take disciplinary action against an employee because the employee exercised a workplace right. Accordingly, if it was alleged in an application to the Fair Work Commission that the employer did take disciplinary action against an employee for a prohibited reason(s) (including unreasonably requiring an employee to work on a Public Holiday) it would be for the employer to prove that either:

  1. The request to work on the Public Holiday was reasonable and the refusal by the employee to work was unreasonable; or 
  2. The decision to discipline was not made for a prohibited reason and was not connected to a workplace right.

For considerations on whether an employee is exercising their workplace right by refusing to work on public holiday please see our Part 1 of this Blog.

It should be mentioned that if the disciplinary action involves the dismissal of the employee it would be possible for the employee to bring either an unfair dismissal claim or a general protections claim.