Court Highlights Obligations Upon Employee Claiming Excessive Hours

An ongoing claim before the Federal Court highlights that employees who claim to have been required to work excessive hours bear an onus to substantiate the basis upon which their employer required the alleged hours to be worked.

The applicant, Ms D, worked for Prospa Advance Pty Ltd (the Company) as the sole employee in their product marketing function, working on capital and non-capital products. The Company focuses on organising and securing lump-sum loans to small businesses.

Following her dismissal, Ms D pursued a claim against the Company alleging contraventions of s 62 of the Fair Work Act 2009 (Cth), which provides that an employer must not request or require an employee to work more than 38 hours per week unless it is reasonable to do so.

Ms D claimed that Prospa required her to work approximately 70 hours per week, including most weekends and public holidays, due to the number of tasks she was set and the failure of the Company to provide support or alleviate her workload. She claimed that when she raised the issue with her employer, she was ignored or told to wait until a resource became available.

However, as noted by Judge Nicholas Manousaridis in the initial hearing, Ms D could not identify any items of work that she was required to complete, the actual times and dates she completed work, identify any dates that she was requested to complete work, identify any deadlines, nor provide reasons why she could not complete tasks in the standard 38 hour week time frame.

In one instance, Ms D claimed that she was required to attend at least 30 hours of meetings every week but was unable to provide details to substantiate this aspect of the claim.

In the absence of written documentation to support her overall claim, the judge commented that either she had to identify the occasion or occasions where she was requested to work more than 38 hours per week or identify conduct by the employer where one could draw a reasonable inference that these hours were implied.

She could not do either.

Consequently, Judge Manousaridis rejected a further application by Ms D to allow her to amend her claim by forcing her former employer to provide employment records that she claimed would strengthen her case.

As he noted, any compulsion by the Court to disclose such information 'would constitute fishing.'

As the judge noted, Ms D

"did not keep an independent record of the hours she worked for Prospa, she did not keep a copy of her electronic diary with Prospa, and she did not maintain a hard copy diary; she did not retain a copy of emails or similar records she sent or received while she was employed by Prospa; she cannot provide any further details of particulars of the hours she worked with Prospa".

An employee seeking to make a claim with the Court needs to establish that the employer implicitly required the employee to work 70 hours a week to meet certain deadlines and that the employer was aware that these tasks could only be completed within that explicit timeframe by working extended hours.

The Court clarified that an employee who seeks to bring a case must identify:

(a) the work the employer requested the employee to perform;

(b) the time by which or the period within which the employer required the employee to complete the work;

(c) the matters on which the applicant relies 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;

(d) 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; and

(e) having the knowledge referred to in (d), 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.

The development of this area of law may have a significant impact on executive and salary employees subject to excessive control, restrictions or ridged outcomes. The matter has been relisted for further directions hearings.

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

For queries about working times, excessive hour claims, unions, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, ?0417 622 178 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.