Key considerations where employees claim they work unreasonable hours

In a recent case involving a former marketing manager and her employer, a judge has emphasised the importance of detailed evidence when pursuing claims relating to working unreasonable hours. This ruling serves as a critical reminder for employers in the retail sector about the requirements employees must meet when alleging adverse action related to work hours.

Background

In this case a marketing manager alleged that they had been working at least 70 hours per week every week between January 2022 and April 2023, in contravention of section 62 of the Fair Work Act 2009 (Cth), which relates to the maximum weekly hours of work. The manager was subsequently made redundant, something she claimed was adverse action taken by the employer following her complaints regarding her excessive hours of work.

However, previous court proceedings led by Federal Circuit and Family Court Judge Nicholas Manousaridis found that the claims were largely unsubstantiated, the employee relying heavily on statements and allegations rather than concrete evidence. The judge had set aside her initial application, urging her to clarify her claims.

In her subsequent application, the manager attempted to provide more detail, stating that the evidence needed to substantiate her claims was solely in the employer’s possession. Despite these efforts, Judge Manousaridis found that her amendments still fell short of adequately detailing her allegations.

Requirements for Claiming Unreasonable Hours

Judge Manousaridis reiterated that employees claiming a breach of section 62 must clearly identify specific instances where the employer required them to work more than the maximum 38 hours per week. He clarified that there is no substantive difference between an employer explicitly requesting an employee work excessive hours and one whose demands imply that such hours are necessary to meet deadlines.

Regardless of the manner in which an unreasonable hours claim comes to be, five “material facts” must be demonstrated:

1. The specific work the employer requested the employee to perform;
2. The deadlines or timeframes within which the employer required the employee to complete the work;
3. The reasons for claiming that the work could not be completed within the required time;
4. The employer’s awareness that the employee could not complete the work within the set timeframe; and
5. Evidence that, despite this knowledge, the employer continued to require the employee to perform the work within the deadlines.

Concerns Over Inadequate Claims

Judge Manousaridis agreed that it was likely that the employer required or requested the applicant to work more than 38 hours a week, however, expressed concern that the application lacked any of the necessary details. He pointed out that the manager did not adequately identify any of the five material facts.

Despite the manager’s assertion that she had provided the best particulars she could, the judge noted this was unsatisfactory. He highlighted that without detailing how access to employer records would assist in substantiating her claims, it remained unclear how she could accurately particularise her case.

Implications for employers

The ruling highlights the importance of clarity and precision where employees make claims regarding unreasonable work hours, simply asserting that the employee was expressly or impliedly required to work beyond 38 hours per week will not be sufficient.

For employers, it serves as a reminder to maintain comprehensive records of employee workloads and deadlines. Employers should also ensure that their policies clearly communicate expectations regarding work hours and provide avenues for employees to address concerns about workload.

Doherty v Prospa Advance Pty Ltd (No 2) [2024] FedCFamC2G 950 (24 September 2024)