Casual ‘Wrongfully Denied’ Permanent Employment – Landmark Case
Toll Transport makes headlines after first court ruling since casual workers won the right to request permanent employment earlier this year.
Following the Fair Work Commissions ruling to give casual workers the option to request permanent status, we now see the first court ruling setting precedence in what employers could face should they choose to wrongfully refuse a casual conversion.
Toll Transport now faces over $77,000 in fines and damages after they wrongfully denied a casual workers request to be made full-time.
Casual freight handler, Joshua Tomvald, was awarded $42,500 in penalties for the breach against his conversion rights alongside the possibility of further compensation amounting to 18 months in lost wages also being taken into consideration.
The issue arose last June when Mr Tomvald applied for a full time, permanent post based on him working a 38 hour week (on average) inclusive of overtime. However, further to his application, Toll Transport subsequently capped his working hours and offered only part time, permanent employment even though Toll’s 2013 enterprise agreement stated that casual workers had an absolute right for conversion on a ‘like for like’ basis.
Toll contested that Mr Tomvald’s ordinary working hours didn’t amount to that of a full time post but Justice Geoffrey Flick was quick to highlight that the term ‘like for like’ meant that a practical approach to conversion had to take place rather than a strict mathematical calculation and as Mr Tomvald was regularly working a 6+ hour shift throughout Monday to Friday, his request for full-time conversion was warranted.
“The right which is conferred upon an employee by clause 21(e) is not to be constrained by that which an employer may be prepared to offer,” Justice Geoffrey Flick
Justice Geoffrey Flick ordered that Toll pay $10,000 for the refusal of the like for like, full-time conversion, on top of $32,000 for their failure to consult with Mr Tomvald regarding capping his hours, refusing his request to view his overtime records for the purpose of being able to properly calculate his working hours and for misrepresenting Mr Tomvald‘s rights to be represented.
Parties were ordered to agree on compensation by the end of October 2017, which could be at least an amount equal to Mr Tomvald’s loss of paid leave which totals $34,816.
Toll hit back and said they are invested in casual conversion and “wholly support” their casual employees having the opportunity to convert to permanent employment. They are said to be carefully reviewing the court decision as an opportunity to improve their systems and processes to better support their people going forward.
As this ruling is the first of its kind since the casual worker rights were amended earlier this year, this serves as a clear warning that wrongfully refusing or handling requests for casuals to transfer to permanent status without reasonable business grounds can incur financial penalties not to mention damaging a company’s reputation.
If you need assistance managing your Human Resource (HR) or Workplace Health & Safety (WHS) obligations, please don’t hesitate to get in touch with Human Resource Services on (07) 5530 1571.
