The Federal Court of Australia (“FCA”) has found that a McDonald’s franchisee engaged in coercive adverse action in contravention of the Fair Work Act against employees in a social media post about employees going to the toilet or having a drink during their paid break time. This unusual case led to the FCA establishing that the denial of access as needed to toilet facilities or drinking water by an employer would be against public policy.

Background

The Retail and Fast Food Workers Union (“RAFFWU”) brought the case on behalf of a former employee of a McDonald’s franchisee based in Brisbane. RAFFWU alleged that the franchisee, Tantex Holdings, engaged in multiple instances of misrepresentation in contravention of section 345 of the Fair Work Act.

The alleged misrepresentations occurred via a private Facebook page that had been set up to communicate with employees about shifts and rosters. RAFFWU alleged that the Restaurant Manager and General Manager of Tantex Holdings had made misrepresentations as to the workplace rights of the employees, specifically in relation to the taking of personal leave and the entitlement to paid breaks during shifts, which amounted to coercive adverse action.

The Restaurant Manager had posted on the Facebook page during the Christmas period that “there are no shift swaps or sick calls on public holidays” and “I will not accept a sick call past 10pm for an open”. RAFFWU alleged that these posts were false or misleading representations about the workplace rights of employees.

In one particular incident, the General Manager of Tantex Holdings made a Facebook post in which he sought to explain the operation of clause allowing for a 10-minute break within the McDonald’s Enterprise Agreement. In the post the General Manager stated that if Tantex Holdings were to institute the 10 minute break, it would be “the only time you would ever be permitted to have a drink or go to the toilet.” and further said “I hope to god you don’t get thirsty on your next shift because we just wouldn’t be able to allow a drink”. RAFFWU submitted that the post was coercive adverse action due to the presence of a threat by Tantex Holdings to not allow employees to drink water or use the bathroom outside of the 10-minute break.

Ruling

The FCA found in favour of the employee, ruling that Tantex Holdings (through its Restaurant Manager and General Manager) had engaged in contraventions of the Fair Work Act by making false or misleading representations about entitlement to the taking of personal leave and the entitlement to the 10-minute break. Tantex Holdings had also breached the Fair Work Act by making a threat to the employees about the implementation of the 10-minute break, which met the threshold for coercive adverse action.

In making its ruling, the FCA expanded upon the notion of toilet and drinks break as a right of employment by way of the work health and safety obligations on employers. The FCA cited case law from Ohio in the United States to establish that there was “not much point” in having a statutory duty imposed on employers to provide toilets or drinking water “if an employee cannot access the same”. Citing the decision in Ohio the FCA stated that “public policy that requires the employer to make available toilet facilities, although reasonable restrictions may be placed on access”.

Key takeaways

• Threats to employees can constitute coercive adverse action
• Employers must be careful of the tone and language used in written communications
• Employers should take their work health and safety obligations seriously

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