Federal Court Awards Hospital Worker Long-Overdue Overtime Payments WithInterest By Employment Law Experts

In Polan v Goulburn Valley Health (No 2) [2017] FCA 30, the Federal Court awarded a hospital worker $27,869.28 in unpaid overtime, plus interest. The hospital worker hadclaimed breaches of enterprise agreements against her employer, Goulburn Valley Health, a large regional hospital. She had worked for the hospital for approximately 17 years before resigning, managing rosters of junior doctors, receiving calls from junior doctors and completing other administrative tasks.

unfair-dismissal

The Employee Worked On-Call

As part of her role, the hospital worker was required to make and receive calls to and from junior doctors whilst she was on-call at home. This was an ongoing expectation on the hospital worker, rather than a specific request by Goulburn Valley Health on each occasion.

he Employee’s Entitlement to Additional Remuneration

One of the arguments before the Court was whether the hospital worker’s duty to make and receive calls whilst at home could be considered “recalls to duty” under her enterprise agreements. If so, she would be entitled to additional remuneration.

It was held that, as the verb “recall” indicates a conscious decision by an employer to require an employee to perform particular duties outside ordinary hours, this was not a situation with “recalls to duty”. However, the hospital worker was still entitled to additional remuneration in the form of overtime.

Entitlement toOvertime

Unlike entitlements for “recalls to duty”, additional remuneration for overtime is not confined to the situation of an employer specifically making a direction to an employee to perform duties on a specific occasion. Further, the enterprise agreements in the present case allowed for the hospital worker to claim overtime payments. Therefore, as the hospital worker was impliedly authorised by Goulburn Valley Health under an ongoing understanding that she would undertake additional work outside of ordinary hours, she was entitled to additional remuneration for that overtime.

Calculation of Overtime

The hospital worker’s entitlement to overtime payments spanned several of her 17 years of service. In such a situation, the Court was faced with the problem of quantifying her entitlement when evidence of actual hours worked and tasks completed were scarce.

The hospital worker was able to provide her Telstra phone bills, but she did not have a lot of evidence to prove the dates and times of the other work she completed. The hospital worker’s role was also to take time to consider which doctors to call, to organise doctors with their most suitable departments and to complete other administrative tasks. The hospital worker also spent a considerable amount of her time waiting between phone calls, waiting for doctors to get back to her, and this work was not reflected in the phone bills.

In the end, despite the lack of detailed evidence, the Court allowed the hospital worker’s total entitlement based on the phone bills to be grossed up by 50% to cover the other overtime work.However, this was just a guestimate.

Lessons to be Learnt

Employers need to comply with the applicable enterprise agreements. This is especially the case for overtime. It may be considered normal for a hospital worker to be on-call, and everyone at the hospital may work additional hours, but that employee can still be entitled to overtime payments.

Meanwhile, employees need to be careful too. In case an employee wishes to make a claim in the future, it helps if the employee has kept records of their service, especially dates and times worked.

A Case Of Where An Employee Has An Adverse Action Claims

MKI Legal recently acted for a client called John (not his real name). Due to confidentiality reasons we cannot disclose his real name. John had a good case to make a General Protections application to the Fair Work Commission (resulting from adverse action). He was a part owner in a Panel and Paint business and worked in the business as a Panel Beater and Spray Painter.

 John’s case

John originally started the business with two friends, and they later expanded into a shop across the road from the location where they established their business. John worked long hours and was in charge of the day to day running of both businesses due to his many years of experience in the industry.

Initially there was a verbal agreement between John and his friends where they asserted that John had a one third share in the business.

One day John broke his foot at work and was required to be off work for a long period of time to recover. He was off work for 4 months in total, while he underwent rehabilitation. At that time, he also made a claim for worker’s compensation. When he was able to walk again, John returned to work.

When John returned to work he was only required to undertake light duties. John had planned to gradually return to his role as a Panel Beater, but his business partners directed him to only move cars around the yard. John was happy to do this, but in order for him to rehabilitate properly it was required that he take on a more active role.

John continued to do as he was directed by the other business partners. One day John came into work and was confronted by his business partners. They told him that they wanted to have a meeting with him. That afternoon John met with them and they told him that they no longer wanted to do business with him. They said that John was unfit to be on site, and that they would tell Workcover that John was not fit to be on site. They also made baseless accusations against John that he was bullying other staff members. They told John that his employment was terminated and that he was not allowed to return to the site.

They also suggested that they could either buy out John’s shares in the company, or he could buy them out. John offered them a sum of money for his share in the company but they refused, stating that John’s share was not worth anything.

Why John could make a general protections claim

 John had the right to make a general protections claim to the Fair Work Commission. Our adverse action lawyers state there were a couple of reasons why John could do this. These are:

  1. Temporary absence from work: John was temporarily absent from work due to his injury, as he needed time to recover. If one of the reasons for the termination of John’s employment was the fact that he was off work for a period of time because of his injury, then he would be protected by the general protections provisions.
  2. Exercising a workplace right: John exercised a workplace right by making a worker’s compensation claim. If this was one of the reasons for his dismissal, then he is covered by the general protections provisions.

John would be entitled to compensation for his dismissal if his general protections claim was successful.