'Casual' worker claws back 15 years of annual leave

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'Casual' worker claws back 15 years of annual leave

An employee will be paid 15 years' worth of accrued annual leave after a court ruled he was a permanent employee, not a casual.

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A sacked worker has won 15 years' accrued annual leave from his employer but lost his case for disability discrimination. 

Background 


Michael Apostolides was employed as a crushing plant operator by Mantina Earthmovers & Constructions from 2000 till he was dismissed in August 2015. 

He made compensation claims in 2001, 2006, and 2015. In 2009 he injured his right hand whilst operating a crushing plant. After surgery and rehabilitation, he returned to work. The latest claim resulted in him receiving worker’s compensation up until 30 June 2015. 

On 30 June the SA Workers Compensation Tribunal ordered that Mr Apostolides be paid a lump sum of $158,569 based on a 43 per cent whole person impairment.
 
Mr Apostolides has sought  several remedies from his employer:
  • that he was owed annual leave for 15 years' service
  • that he was not given pay in lieu of notice upon his dismissal
  • that his dismissal was discriminatory in relation to his disability, and
  • that his employer took adverse action against him in light of his workers compensation claims. 

The law 


The employee was employed under an Australian Workplace Agreement (AWA) which is preserved as an 'agreement-based transitional agreement' under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 [Cth].

An employer is prohibited from taking adverse action against an employee because the employee exercised a workplace right (s340 of the Act) or because that employee has a disability (s351 of the Act).

Arguments


Mr Apostolides argued that he was a permanent employee and thus entitled to accrued annual leave. He contended that his employer stopped giving him work because he exercised his right to worker’s compensation and because he had developed a disability.

The employer argued that he was a casual employee and was not entitled to accrued annual leave. It submitted that the reason Mr Apostolides was no longer receiving work and was ultimately dismissed was because he was no longer able to perform the inherent requirements of the job. 

Legal questions 


The Federal Circuit Court of Australia had to determine the status of Mr Apostolides' position; namely, whether he was a permanent or casual employee. It was also tasked with finding whether the employer's conduct and actions were discriminatory. 

Decision 


The court noted that there was no written record of the engagement between Mr Apostolides and his employer.

The court considered the Quarry Industry Award and an Australian Workplace Agreement made between the parties and found that Mr Apostolides qualified as a permanent employee. This was despite the fact he was not paid annual leave, public holidays or sick days and that both parties laboured under the mistaken belief that Mr Apostolidas was a casual employee.
 
The court reasoned that the substance of the engagement resembled that of a permanent employee, namely because of the long-term period of the engagement, its regularity in terms of hours, and the importance of the Mr Apostolides’ role in the overall business. There was also no evidence of “casual loading” being paid to the applicant.

The judge determined that the applicant was a permanent employee under the AWA from 8 May 2000 to 16 August 2015 and entitled to payment for accrued annual leave at his ordinary rate of pay at the time of termination according to clause 6.1 and to payment in lieu of notice according to clause 7.2.1 of the AWA.  

In relation to the disability discrimination claim, the court took into account extensive medical records which indicated Mr Apostolides was no longer able to do work beyond a sedentary supervisory capacity. There was no possibility that adjustment could be made to alleviate the rigours of working as a crushing plant operator. This would mean that the employer would have to create a new role for the applicant which was not a “reasonable adjustment”.

It was held that Mr Apostolides' dismissal was due to the fact he could no longer undertake the inherent requirements of the job, which, according to law, is not discriminatory. 

The court awarded him accrued annual entitlements and pay in lieu of notice but rejected his discrimination claim. 

Apostolides v Mantina Earthmovers & Constructions Pty Ltd [2018] FCCA 279 (7 February 2018)
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