5 Key Elements of an Unreasonable Hours Adverse Action Claim

A Federal Court judge has revealed the five key elements needed for a successful adverse action claim involving unreasonable hours. The checklist was provided in a recent ruling involving an employee who claimed she was dismissed for complaining about her unpaid overtime. In this article, we probe into the details of this case and the five material facts outlined by the judge, which provide a framework for a robust claim. We also look at another recent adverse action case involving an employee who won $24,000 after being dismissed for complaining about her hours.

Judge outlines 5 requirements for adverse action case involving unreasonable hours

A recent decision from the Federal Circuit and Family Court has highlighted the challenges faced by workers pursuing claims against employers for unreasonable hours. The case in question – Doherty v Prospa Advance Pty Ltd (No 2) [2024] – involved a former product marketing manager from Prospa, Eleanor Doherty. She alleged that the company failed to comply with the Fair Work Act’s provisions on maximum hours. Ms Doherty claimed that she was often forced to work over 70 hours per week. The Fair Work Act states that a worker can work a maximum of 38 hours per week. This is unless their employer requests them to work a reasonable amount of extra hours.   Ms Doherty also argued that Prospa had dismissed her for complaining about her hours. She therefore alleged the company had taken adverse action against her.

Court’s assessment of the marketing manager’s claims

In April 2024, Federal Circuit and Family Court Judge Nicholas Manousaridis had dismissed Ms Doherty’s adverse action claim. This was because she did not provide sufficient detail regarding her workload and hours while at Prospa. Ms Doherty subsequently applied to amend her claim to better “particularise” the maximum hours violation. In September 2024, Judge Manousaridis assessed her amended adverse action application. He noted that Ms Doherty had made allegations that Prospa had implicitly required her to work over 38 hours a week. However, he deemed her application lacked necessary specificity. Judge Manousaridis remarked that “the amended claim does not identify necessary material facts and matters in support of [her] claim.” Specifically, he pointed out that the claim failed to specify the work required. Also, the occasions on which the work was requested and the timeframes involved. The judge stated, “Paragraph 17A does not identify the work [she] alleges Prospa required or requested her to perform.” He further expressed concerns about the marketing manager’s ability to articulate a coherent case without access to detailed records from Prospa “If [she] is not now able to identify these facts and matters, it is difficult to see how she will be able to identify those matters from her having access to the records,” Judge Manousaridis said. The judge therefore dismissed Ms Doherty’s interlocutory adverse action application. He labelled her approach as potentially “fishing,” whereby she would seek to uncover necessary facts only after gaining access to Prospa’s documents.

Judge outlines 5 key requirements for an unreasonable hours claim

Judge Manousaridis highlighted five “material facts” essential for a successful adverse action case concerning unreasonable hours. These elements are crucial for any employee seeking to demonstrate that their implicitly or explicitly required them to work beyond 38 weekly hours. These requirements include:

1. Work requested by the employer

The first requirement is to clearly identify “the work the employer requested the employee to perform,” said Judge Manousaridis. Without specifying the nature of the work, the adverse action claim lacks a foundational basis.

2. Completion timeframes

Next, the employee must delineate “the time by which or the period within which the employer required the employee to complete the work,” said Judge Manousaridis. This element is vital in establishing whether the imposed deadlines were reasonable or contributed to excessive working hours.

3. Inability to complete work within required hours

The claimant needs to present “the matters on which [they] rely for alleging that the employee could not complete the work by the time or within the period the employer required or requested it be performed,” said Judge Manousaridis. This aspect is crucial in demonstrating that the workload was unmanageable within the standard hours.

4. Employer’s knowledge

The fourth element requires the employee to show “the matters on which the employee relies for alleging that the employer knew or (perhaps) ought reasonably to have known that the employee could not complete the work within the time the employer required or requested the employee to complete the work,” said Judge Manousaridis. Establishing the employer’s awareness of the situation strengthens the claim of adverse action.

5. Continued demands despite knowledge

Finally, the applicant must be able to demonstrate that “having known the work could not be completed within the expected timeframe, the employer continued to require or request the employee to perform the work within the time the employer had required or requested the employee to perform the work,” said Judge Manousaridis. This fact is critical in proving that the employer acted unreasonably and failed to address the employee’s concerns.

Australian workers lose over $21,000 annually in unpaid overtime, new survey reveals

A 2024 survey conducted by Unions NSW has revealed that Australian workers are on average working an hour and a half of unpaid overtime each day. The survey of 5,000 workers revealed 86 per cent are working unpaid overtime each week. On average, these employees work an extra nine hours weekly, which translates to approximately 11.6 weeks, or 58 days, of unpaid work annually. For an individual earning $96,660 per year, this unpaid labour amounts to $21,563 annually.

Unpaid overtime across income levels

The survey indicated that higher-earning employees often work even more additional hours. Employees earning between $110,000 and $130,000 reported working an average of 12 hours of unpaid overtime per week, while those with incomes below $70,000 still worked an average of 7.3 unpaid hours weekly. Part-time and casual workers reported working 6.5 unpaid hours per week. Unions NSW Secretary Mark Morey said that employers “have become accustomed to expect” their staff to work unpaid overtime. He also said that this expectation has led to workers being “required to work through lunch breaks, turn up early and finish late, and put in extra hours on the weekend.”

Impact on workers’ lives

The survey also highlighted the broader impact of unreasonable hours on employees’ personal lives. More than three-quarters (77 per cent) of respondents stated that unpaid overtime negatively affected their work-life balance. Almost 80 per cent of participants mentioned difficulties disconnecting from work after hours. 70 per cent admitted to regularly working overtime on weekends. “This is affecting their physical and mental wellbeing, preventing them from spending time with their families and contributing to their communities,” Morey remarked.

Calls for legislative reform

Unions NSW has raised concerns about the legal framework that governs working hours. Specifically, it highlighted provisions under the Fair Work Act that allow employers to require workers to work more than 38 hours per week without additional pay, provided the hours are deemed “reasonable.”  The union is now calling for reforms to ensure workers are properly compensated for overtime and protected from exploitation. The union’s proposals include legislative protection for employees to refuse unpaid overtime, particularly for those earning less than the high-income threshold, which currently stands at $162,000 per year. Unions NSW also advocates for stricter record-keeping requirements for employers to document unpaid overtime hours and for annual reporting of these figures.

Worker dismissed for unreasonable hours complaint wins $24K

Another recent example of a worker who was fired for complaining about unpaid overtime is the adverse action case Rizk v PVH Brands Australia Pty Ltd [2023]. Christen Rizk began working for PVH Brands Australia in June 2019. She was hired as a wholesale commercial analyst in the financial division of the company, which supplies clothing apparel to retailers.  She was subject to a six-month probationary period, during which either party could terminate the employment contract. Ms Rizk’s responsibilities primarily involved financial analysis for the business, and she was assigned to work across the company’s various apparel brands. PVH Brands had internal divisions that supported these business units, including the financial division where Ms Rizk was based.

Dismissal following probation

In November 2019, PVH Brands notified Ms Rizk that her performance during the probationary period had been reviewed and that she would be dismissed. The termination letter cited concerns over her “performance and suitability for the role,” stating that her performance had been assessed as unsatisfactory. The employer claimed she did not possess the “desired qualities” necessary for the role. However, Ms Rizk disagreed with the reasons provided for her dismissal. She argued that she had been terminated not due to her performance but because she had exercised her workplace rights to make a complaint. Ms Rizk alleged that her sacking amounted to adverse action in breach of the Fair Work Act.

Complaints about unreasonable hours and working conditions

Ms Rizk’s complaints dated back to September 2019, when she raised concerns with the company’s commercial manager regarding the conduct of a co-worker. In addition to this complaint, she also reported what she described as “unreasonable overtime hours” imposed by PVH Brands. Ms Rizk claimed she was regularly required to work more than 38 hours a week. She said that she frequently skipped lunch breaks, worked late into the evening and worked on weekends. According to Ms Rizk, she had expressed these concerns in emails to senior management. She had also complained about the pressure to work excessive hours without adequate breaks. She contended that her dismissal was due to her raising these concerns.

Employer’s denies worker subjected to unreasonable overtime

In response to Ms Rizk’s claims, PVH Brands defended its decision, arguing that her dismissal was unrelated to her complaints. The employer asserted that Ms Rizk had “exaggerated” her grievances and that her conduct in the workplace had been problematic. They described her behaviour as “defensive, argumentative, and combative,” and maintained that she was prone to making exaggerated statements, which led to implausible conclusions. The company further claimed that Ms Rizk’s performance had been inadequate and that she did not meet the necessary standards for her role. However, they were unable to provide substantial evidence to support these claims.

Adverse action case decided in court

The Federal Circuit and Family Court of Australia examined Ms Rizk’s dismissal and requested that PVH Brands present evidence to justify its decision. The court asked for documentation that corroborated Ms Rizk’s alleged poor performance and lack of suitability for the position. However, the company was unable to provide any concrete evidence to support its assertion that Ms Rizk’s performance had been unsatisfactory. The court noted that the evidence presented by the employer was “not reasonably capable of supporting the conclusion” that she did not possess the qualities required for the role. Furthermore, when the court questioned the CEO about the decision to terminate Ms Rizk, the CEO was unable to explain how the decision had been reached. The court found that the management team could not adequately justify why Ms Rizk had been dismissed. Also, they could not explain what information they had relied on to make this decision.

Worker wins adverse action payout

The Federal Circuit and Family Court of Australia ruled that Ms Rizk’s dismissal was likely motivated by her complaints about her unpaidv overtime hours and working conditions. The court determined that PVH Brands had taken adverse action by terminating Ms Rizk’s contract. It therefore ordered PVH Brands to pay Ms Rizk $24,200.98 in damages.

Have you faced unreasonable hours?

If you have been forced to work unreasonable unpaid overtime, or have faced dismissal or unfair treatment in response to making a complaint, call us today. At A Whole New Approach, we’re not lawyers — we’re Australia’s leading workplace advisors. We’ve helped thousands of employees with their workplace disputes and problems.

To discuss the options available in your situation and understand your employee rights, call us now for a free, no-obligation consultation. We handle a wide range of  industrial relations matters — from unfair dismissal and forced resignation to adverse actions and workplace investigations.  Reach out now to explore your options — or give us a call on 1300 766 700. Call us on 1300 766 700 for a free and private discussion about your situation