Dismissing an employee for refusing unreasonable overtime is unlawful. Under the NES, employees can refuse overtime that is unreasonable, and doing so is a protected workplace right.
Last verified: 21 May 2026Dismissing an employee for refusing unreasonable overtime is unlawful. Under the NES, employees can refuse overtime that is unreasonable, and doing so is a protected workplace right.
Dismissal for refusing overtime is unfair if the overtime was unreasonable. Factors that make overtime unreasonable include: risk to health and safety, personal circumstances including family responsibilities, insufficient notice, the employee's hours already being excessive, and whether the employee is entitled to overtime rates.
The right to refuse unreasonable overtime is a workplace right under the Fair Work Act (s62). Dismissing an employee for exercising this right is adverse action. The employer bears the reverse onus of proof.
Employers should: (1) only request reasonable overtime, (2) consider the employee's personal circumstances, (3) provide adequate notice of overtime requirements, (4) not penalise employees who decline unreasonable overtime, (5) address any staffing shortfalls through hiring rather than forced overtime.
The FWC has consistently held that employees cannot be penalised for refusing overtime that is unreasonable. Factors such as family responsibilities, health issues, and the amount of notice given are considered when determining reasonableness.
21 days
From the date your dismissal takes effect. Strictly enforced.
26 weeks’ pay
For unfair dismissal. Consider a general protections claim (no cap) for stronger protection.
Refusing Overtime is generally not a valid reason for dismissal. Termination for this reason may constitute unfair dismissal and may also breach general protections provisions under the Fair Work Act. The employer bears the reverse onus of proof to show this was not a reason for the dismissal.
Yes, provided you meet the eligibility requirements: you must have completed the minimum employment period (6 months for large employers, 12 months for small business) and earn below the high-income threshold ($183,100) unless covered by an award or enterprise agreement. You must lodge within 21 days.
Unfair dismissal focuses on whether the dismissal was harsh, unjust, or unreasonable (capped compensation at 26 weeks' pay). General protections claims apply when dismissal is for a prohibited reason such as discrimination, exercising a workplace right, or union activity. General protections have no compensation cap and the employer bears the reverse onus of proof.
You have 21 calendar days from the date your dismissal takes effect to lodge an application with the Fair Work Commission. This deadline is strictly enforced and extensions are only granted in exceptional circumstances.
The FWC can order reinstatement (getting your job back) or compensation of up to 26 weeks' pay. The amount depends on factors including how long you worked there, your remuneration, efforts to find new employment, and any misconduct that contributed to the dismissal.
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FairWork Mate is an independent commercial service. We are not affiliated with, endorsed by, or associated with the Fair Work Ombudsman, the Fair Work Commission, or any Australian Government agency. Content is general information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.
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