A company's requirement for an employee to work additional unpaid hours and make himself available on-call was neither lawful nor reasonable, the Fair Work Commission has ruled in upholding his unfair dismissal claim.

Hazeldene Chicken Farms sacked the IT systems developer in February after he wanted to continue negotiations over a new on-call requirement put in place following his refusal to respond to calls during three weeks' leave in late 2013.

After receiving advice from the company's HR department that the employee was not required to respond to calls while on leave, Hazeldene's technical services manager emailed all IT staff to advise them their contracts would be varied to require them to work 1,976 ordinary hours with an additional 364 hours attracting no additional payment.

The new contracts provided employees with time off in lieu for hours worked above 2,340 and created a new roster requiring them to be on-call 13 weeks a year in return for a payment of $77 per week.

Hazeldene argued in the Fair Work Commission that the employee's refusal to accept the company's "lawful direction" to accept the new on-call roster and his aggressive manner had provided sufficient grounds for dismissal.

But Deputy President Anne Gooley said the company had no legal right to compel him to accept significantly changed terms of employment.

Deputy President Gooley said there was a marked difference between an employee being required to work reasonably additional hours and being compelled to be on an on-call roster.

Right to uninterrupted annual leave

The deputy president said despite the employee's existing contract not requiring him to answer calls outside work hours, he had been asked, after starting work with the company, to include his personal mobile number on a contact list and had regularly answered calls outside normal hours.

He had only refused to answer calls during his annual leave period and only then because he was given no indication that they required an urgent response.

"Employees are entitled to annual leave without interruption," Deputy President Gooley said.

She said that the company, having been advised it could not require the employee to work while on annual leave, tried instead to compel him to vary his contract.

Hazeldene, she said, proposed a new employment contract which "went significantly beyond codifying" his existing terms and conditions to require changes to his hours of work, the removal of his annual leave loading and his participation in the on-call roster.

"The direction to agree to these terms was not a lawful or even reasonable direction," she said, noting that it was irrelevant that other employees had agreed to the new conditions.

The only thing that Hazeldene could require him to do, Deputy President Gooley said, was comply with his current contract and there was no evidence that he had not or was unwilling to do so.

She said the employee's resistance to the changes to his terms and conditions was not evidence of a breakdown in the employment relationship.

The employee found a new job six weeks after his dismissal, and did not seek reinstatement in his unfair dismissal claim.

Deputy President Gooley estimated that he would have remained with Hazeldene for six more months had he not been sacked, and earned $7,500 more than his new job.

But she discounted that amount by 5% because he was not required to work additional hours in the new role.

She awarded him $7,125.00, less tax, and $641 in lost superannuation.

Sheldrick v Hazeldene’s Chicken Farm Pty Ltd [2014] FWC 5820 (2 August 2014)