Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 21 April 2018.

In January 2003, Travis had recently finished high school and needed work. He visited OG Quarries Pty Ltd and spoke with Gary, the quarry manager. Gary offered Travis a start and put him to work immediately as a labourer.

Travis proved to be a hard worker and continued employment with OG Quarries for 15 years. He was provided yearly pay increases and consistently worked at least 38 hours per week, plus overtime at double pay.

However, in January 2018, after a disagreement with his foreman, Travis was fired and told to leave the site immediately.

Travis commenced proceedings in the Federal Circuit Court against OG Quarries, claiming payment in lieu of his notice of dismissal and 15 years of unpaid annual leave.

OG Quarries claimed that Travis was not entitled to annual leave or notice of dismissal because he was a casual employee. Although Travis never had a written contract of employment, Gary was able to show that Travis had been paid an hourly rate that was 20% higher than what other labouring employees received, which Gary described as casual loading.

Travis claimed he always considered he was a permanent full-time employee but had never taken leave in his 15 years of employment. Travis was able to show that he was expected to work at least 38 hours per week.

The Court expressed scepticism about Travis’ claim of never having taken leave but found that Travis’ roster was consistent with permanent employment because his hours were not subject to his availability or the quarry’s need for his services. Instead, Travis was expected to be available to work 38 hours a week plus overtime. Further, the relevant industrial Awards set casual loading at 25%, not the 20% that Travis was paid.

Travis was found to be a permanent employee and OG Quarries was ordered to pay over $80,000 in unpaid annual leave and notice. There was no deduction for the extra 20% paid by OG Quarries.

If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.