Shahin Enterprises appealing court ruling that it underpaid former staff member
The operator of the OTR servo chain has lodged an appeal against a court ruling that found it underpaid a former worker who claimed he was told to “do his eating and toileting at home”.
The state’s biggest private employer is fighting a court ruling that found it underpaid a former staff member, who claimed he was told to “do his eating and toileting at home”.
Shahin Enteprises, the company behind the OTR chain of petrol stations, has lodged an appeal in the Federal Court to the judgment from the state’s employment tribunal.
The tribunal ruling, handed down on June 3, found the company underpaid the former retail trainee in three ways.
First, it found OTR failed to pay the former employee for 10 to 15 minutes of work he was required to do prior to his rostered start time.
Second, the tribunal found the company wrongly deducted 30 minutes from each long shift for meal breaks he never actually took.
It also found OTR failed to pay penalty rates for a short period of overtime worked.
While the former employee — an Indian citizen — has only claimed a little more than $2600 in unpaid wages, the case could have wider implications for both OTR and other employers with similar arrangements.
OTR says the employment practices in question, while no longer in place at OTR, are commonly used by other businesses who employ rostered shift workers.
As part of the appeals process, Shahin has sought consideration by the Federal Court for the appointment of a full court to preside over the trial, which is likely to begin later this year.
In a case management hearing this morning, Justice Natalie Charlesworth said while the matter didn’t seem complex, further consideration would be given to determining how best to proceed with a trial.
“I’m not sure if this is a case that might determine the rights of many other employees,” she said.
“I don't know what the financial stakes are for the parties.”
The former OTR employee was employed by the company between November 2015 and December 2016 and mostly worked a midnight to 7am shift at the company's petrol station at Fulham.
While he recorded 30-minute meal breaks in his time book until June 2016, he claimed he never actually took a break due to a combination of work pressures and being told by two managers not to take toilet breaks.
“The applicant said he was asked … to do his eating and toileting at home before he started work, and so did not take any meal breaks at work,” the ruling handed down by employment tribunal deputy president Stephen Lieschke says.
“I accept that the broad range of duties to be completed, together with his belief that he should avoid going to the toilet during a shift, influenced his decision to eat before he went to work and not to take a meal break during the course of a long shift.
“I find he should have been paid for all the time wrongly treated as meal breaks.”
While there was disagreement between the parties over whether the former employee was expected at attend work 10 or 15 minutes prior to his rostered start time, they agreed a period of handover time was required.
“The respondent cannot decide that it will not pay for the performance of some duties, as was the case here,” the ruling says.
“The instruction given during training, and reinforced by the site manager, was an unambiguous direction to the applicant for him to be at work before the rostered shift time.”
Shahin is appealing the tribunal’s decision on several grounds, including claims it did not require the former employee to work without a break, and that the tribunal’s finding that he never took a break was “unlikely given the ample opportunity during night shift to take a meal break between serving customers and attending to other tasks”.
In a statement from OTR parent company Peregrine Corporation, the company said it was committed to ensuring its employees received their entitlements.
“Peregrine had a practice — common with other businesses who roster their employees on shifts — of encouraging employees to be at work just before the start of their shifts,” the statement says.
“This was to ensure that employees were ready to start work on time and not inconvenience co-workers by being late.
“Since 2016, Peregrine has transitioned to the modern award and now records the start and finish of shifts electronically.
“The company will continue its process of regular review and audit to identify and correct anomalies.”
