The recent announcement that the JobKeeper scheme will be extended to 28 March 2021 (albeit with new qualifying criteria and reduced payment amounts) for eligible employers and their employees was welcomed by many hospitality industry employers.
The JobKeeper scheme has however presented some issues at the workplace throughout its operation. As the staged easing of government restrictions allows hospitality employers to increase operations, a number of members have contacted the ER department, reporting difficulty getting JobKeeper eligible staff back to work.
The temporary amendments to the Fair Work Act 2009 (‘the FW Act’) through the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (‘The Omnibus Act’) have assisted employers throughout the COVID 19 pandemic, however their remains a number of difficulties for employers in returning employees to the workplace.
Importantly, the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (‘the JobKeeper Rules’) feature:
- A ‘one in, all in’ principle that requires a participating employer to pay all eligible employees no less than the amount of the JobKeeper reimbursement they will receive for that employee in any JobKeeper fortnight (currently $1,500), and;
- No obligation for an employee who otherwise satisfies eligibility criteria to perform any actual rostered work for the business in a particular JobKeeper fortnight.
Another important consideration is that an employee’s eligibility for JobKeeper payments is a workplace right for the purposes of the general protection’s provisions of the FW Act.
Accordingly, managing employees who express resistance to returning can be difficult, employers are encouraged to address such situations on a case-by-case basis, tailoring their approach based on the key considerations outlined below.
1. IS THE EMPLOYEE PERMANENT (FULL OR PART-TIME) OR CASUAL?
Permanent Full or Part-Time Employees
Permanency provides the parties to an employment relationship the benefit of a level of certainty. As such, an employer’s direction that a permanent employee perform work constitutes a reasonable and lawful command and an employee’s failure to comply without justifiable grounds for doing so can be treated as a disciplinary issue. Should an employee refuse to comply with a lawfully implemented JobKeeper Enabled Direction (‘JKED’) (as provided for in part 6-4C of the FW Act through the Omnibus Act) to work reduced hours or alternative duties, an employer may alternatively lodge a JobKeeper Dispute with the Fair Work Commission (‘FWC’), which is provided the power to order an employee to comply with such a direction.
Casual Employees
Managing a casual employee who is refusing work is much trickier. In much the same way that a business is not obliged to offer a casual any hours, several unfair dismissal application decisions made by the FWC support the principle that a casual employee can refuse an offer to work for any reason. This right of refusal is inconsistent with an employee’s obligation to be ready, willing and able to work; in extreme cases casual unavailability or ongoing refusal of offers to work can amount to repudiation of their employment agreement.
The other inconsistency is that a casual employee becomes eligible for JobKeeper because they have been employed for more than 12 months on a regular and systematic basis.
How an employer approaches this situation therefore depends on:
- The reason a casual is refusing shifts;
- The extent or duration of any period of declared unavailability;
- The level of risk (of a successful claim being made against the business) an employer is willing to accept in an unfair dismissal (or other) proceeding.
Before an employer ceases to offer shifts altogether or formally dismisses a casual employee, the QHA recommends employers follow the process set out below, such that an established pattern of long-term unavailability or unreliability (without reasonable cause) can be demonstrated.
1. On the first occasion the employee rejects a shift, correspond with them in writing, stating words to the effect:
“We have offered you xyz shift, but you refused to work the shift. Please confirm whether there are any specific reasons you have refused this offer of work”
2. Retain a copy of, or file note (if a conversation) the employee’s response for your records.
3. Continue periodically offering the employee shifts over a period noting any rejections and (where provided) reasons given by the employee for them, in your records.
4. If the employee has persistently refused work over a period of months, you may determine it is appropriate to again write to them, listing the dates of refused shifts and reasons provided by the employee and advising on the basis of unavailability, the business has accepted the employee does not wish to be employed anymore.
2. WHAT REASON HAS THE EMPLOYEE PROVIDED FOR REFUSING TO WORK?
Employers should exercise an even greater level of caution if an employee asserts their refusal to return is related to a right or attribute that is protected under legislation, or make a legitimate claim that the employer’s direction is in some way unreasonable in the circumstances.
Is the employee stating they are sick?
Under the General Protections provisions, an employer is prohibited by section 352 of the FW Act from terminating an employee based on a temporary absence from work due to a prescribed illness or injury. Regulation 3.01(5) of the Fair Work Regulations 2009 (‘the Regulations’) states that an absence is no longer considered ‘temporary’ where it exceeds three months duration in any 12-month period. Even where this protection is no longer available, employers should be mindful of the protection employees are provided under section 351 of the FW act from discrimination based on a mental or physical disability or injury.
Is the employee stating they have concerns about their workplace health and safety due to COVID-19?
Employers have a duty to provide a safe work environment and employees may express legitimate concerns based on the contagious nature of COVID-19. In such cases, employers will need to demonstrate they have taken all reasonable measures to make the workplace safe. This could involve describing its risk management processes including the cleaning, hygiene and social distancing measures it has implemented. If an employee continues to refuse to return, it may be possible to commence disciplinary action.
QHA JOBKEEPER INFORMATION
Members will be kept up to date on any changes to the JobKeeper Scheme and the FW Act, through the QHA E-Update and the QHA ER Bulletin, members are also encouraged to regularly check the QHA website www.qha.org.au for updated information.
QHA also has a number of resources available on the topics of COVID-19 and JobKeeper (and all things related to it) that can be accessed through the QHA website www.qha.org.au. These resources will be updated when changes occur.
