Your casual employee does not want to return to the workplace … but still receives JobKeeper. What can you do?
As restrictions lift throughout the country, we are seeing more businesses resume operations. For some, this means employees physically returning to the workplace. This is good news as employers and employees alike seek to re-capture some sense of normality, albeit within the new realm of social distancing and adapting to a COVID-safe economy.
With the return of employees to the workplace, many employers are being faced with a range of difficult questions.
This eAlert, as part of our Business unUsual series, looks at the question of casual employees who are refusing to attend and perform work, yet their employer must still pass on their JobKeeper payment.
What can an employer do in this situation?
We have previously written about the JobKeeper scheme and eligibility for the scheme.
In summary, eligible employers under the scheme are required to pay eligible employees the fortnightly value of the JobKeeper payment ($1,500, less tax) or the amount payable to the employee for the performance of work – whichever is the greater. The eligibility requirements do not actually require the employee to perform work in that fortnight to receive the payment. The scheme was always designed this way. This was because the initial public health response to the pandemic saw many businesses close their doors. As a result, the intent of the scheme was to keep employees technically employed despite their employer’s business going into ‘hibernation’.
Now that workplaces are re-opening, some casuals are indicating they are unavailable to perform work whilst entitled to the JobKeeper payment. This is a complex issue and an employer’s response to this situation will depend on the reason provided by the casual employee for their refusal to attend work.
The casual employee provides no reason
Under the traditional casual employment relationship, a casual employee is free to decline any particular shift. They can make themselves unavailable to work (subject of course to any contractual or industrial arrangements applying to the relationship).
This reflects the traditional distinguishing feature of casual employment – every shift is a separate contractual engagement, the opposite of ongoing, permanent employment.
This is where the present dilemma arises – if the casual employee refuses to accept and work any shifts, yet is eligible to receive JobKeeper payments (because they are a long-term casual, employed on a regular and systematic basis for at least 12 months), a significant financial burden is imposed on the employer. The refusing employee receives the government subsidy, but the employer must source another employee to perform the work they need done. That employee may be a newly engaged casual for whom the employer receives no JobKeeper subsidy.
In normal circumstances, the employer would simply no longer offer shifts to the employee. However, in the current circumstances where the employer is receiving (and must pass on) $1,500 a fortnight to keep their relationship with the casual employee alive, the employer will want the employee to perform work and help re-ignite the business. If the employee isn’t interested, what can be done?
Is it possible to terminate the casual employee’s employment?
The short answer is yes – it is possible.
If the casual employee provides no reason for repeatedly and consistently refusing casual work, this behaviour is arguably inconsistent with the obligation on an employee to be ready, willing and able to work (subject to a casual employee’s right to refuse a particular shift) and could amount to conduct that demonstrates the employee no longer wishes to be bound by the employment arrangement – that is, their conduct is repudiatory.
In these circumstances, it may be open to the employer to issue a lawful and reasonable direction that the employee perform the available work. If the employee continues to provide no reason for not working, it may be possible to take disciplinary action against the employee. This action could include termination of employment. We recommend you seek legal advice should you wish to adopt this approach as you will need to be aware of, and comply with, any obligations in your employment contracts or industrial instruments.
It will not even be an option unless and until there is a pattern of unjustifiable refusal that goes well beyond the right of any casual employee to refuse any particular engagement.
Further, given that an employee’s eligibility for JobKeeper payments is a workplace right for the purposes of the general protections provisions of the Fair Work Act, any adverse action taken by an employer must not be because of the casual employee’s eligibility for JobKeeper payments, but rather because of their failure to comply with the direction issued – which has to be both lawful and reasonable before an employee must obey it.
The casual employee provides a reason for their non-availability to work
If the casual employee provides a reason for not wanting to work, employers should carefully consider it before taking any action.
For example, it could be that the employee has concerns for their health and safety in the workplace because of coronavirus and is reluctant to return to it. This is a common issue we have seen raised by employees (and employers). COVID-19 is alarmingly contagious and employees have legitimate concerns for their individual health and safety.
Employers have a duty to provide a safe work environment to the extent it is reasonably practicable to do so and an employer asking employees to return to the workplace will need to demonstrate that it is safe for them to do so. This could include describing its risk management processes for employees and customers, the cleaning, hygiene and social distancing measures it proposes to implement and the support being provided. If a casual employee continues to refuse to attend the workplace after all reasonably practicable steps have been taken to make it safe, the employer may be able to direct the employee to return and a failure by the employee to then do so could result in disciplinary action.
It could be that the casual employee has caring responsibilities and this is the reason the employee refuses to return to the workplace. A casual employee on leave (typically unpaid) is still entitled to receive JobKeeper payments.
Under the Fair Work Act, casual employees are entitled to 2 days of unpaid carer’s leave for each occasion when a member of the employee’s immediate family or household requires care or support because of a personal illness, injury or unexpected emergency.
If the employee has caring responsibilities, and has provided the required notice and evidence, it is unlawful to take any adverse action against the employee because of their caring responsibilities. If the employee has exhausted their unpaid carer’s leave entitlement, it may be possible to take action and direct the employee to return to the workplace, but a big risk will still be a claim of unlawful indirect discrimination. This is because the requirement to return will disadvantage that employee compared to someone without carer’s responsibilities, and then the employer will need to prove the requirement is reasonable.
As described in our eAlert available here, in early April 2020, the Fair Work Commission varied 99 awards to provide unpaid pandemic leave to casual employees (as well as full-time and part-time employees). Under these changes, if one of these awards covers and applies to your casual employees, a casual employee is entitled to 2 weeks of unpaid pandemic leave if required by government or medical authorities or on medical advice to self-isolate, or they are otherwise prevented for related reasons from attending work. This may be because a family or household member has been diagnosed, or is required to self-isolate. In these circumstances, the employee would remain eligible for JobKeeper payments and it is unlawful to take adverse action against a casual employee who exercises their workplace right to unpaid pandemic leave.
What are the risks of getting it wrong?
It is sometimes thought that casual employees are not able to bring unfair dismissal claims under the Fair Work Act. This is not always correct. A casual employee can make an unfair dismissal claim if they have been engaged on a regular and systematic basis and had a reasonable expectation of continuing employment for at least the minimum employment period (6 or 12 months, depending on the size of the employer). This is a similar test to eligibility for JobKeeper payments and so if a casual employee is entitled to JobKeeper payments, they would most likely be entitled to bring an unfair dismissal claim – however advice should be sought on this point.
Where an employee can access the unfair dismissal jurisdiction, an employer must have a valid reason for the employee’s dismissal and have adopted a procedurally fair process.
In addition, basically any employee could bring a claim under the general protections provisions of the Fair Work Act if they have been dismissed (or subjected to other adverse action) because of their eligibility to JobKeeper or because they have lawfully exercised another workplace right. Given civil penalties could be imposed for contravening the general protections provisions, employers should tread cautiously when addressing these issues.
So this is a complex question facing many employers. The JobKeeper scheme is not a job guarantee – it is a wage subsidy to keep employment relationships alive where they would otherwise have disappeared due to redundancies. Casual employees (and all employees) are still required to comply with their employment obligations during this period, and are not immune from consequences.
Maddocks has produced guides on legal issues raised by the coronavirus which may be of interest, and we encourage you to share these with colleagues who may also find them useful.
Long service portability in the Community Services Sector – an update
Scope and interpretation of the Long Service Benefits Portability Interim Regulations 2019
Plans, Masks, Records & Contact Tracing – What do Victorian Workplaces need to do from today?
Key directions for Victorian workplaces as outlined in the Workplace Directions (No 8).