Thursday, 30 April 2020

What happens if employees refuse to come to work but still want to claim JobKeeper payments?

In our previous updates we set out the eligibility for employers and employees to participate in the Federal Government’s JobKeeper scheme.

In this update, we consider the JobKeeper Enabling Directions under the scheme and the ability for employers to lawfully direct employees to carry out work.

JobKeeper Enabling Directions

Employers who qualify for the JobKeeper scheme can give a “JobKeeper Enabling Directions” to their employees in respect to whom the employee receives JobKeeper subsidy payments. This essentially means that where an employer gives the direction, employees are obliged to:

  • Reduce their hours of work (including reducing their hours to zero), otherwise known as a “JobKeeper Stand Down Enabling Direction”;
  • Perform any duties within their skill and competency, as long as the duties are safe, and the employee is licensed and qualified to perform the duties; and/or
  • Change the location (including to the employee’s home) from which the employee performs the work.

There are requirements for implementing the Jobkeeper Enabling Directions such as providing three days written notice (unless the employees genuinely agreed to a lesser notice period) and providing the direction in writing. The direction must be also reasonable. The ability for employers to make JobKeeper enabling directions will remain in force up until 28 September 2020.

Although the JobKeeper Enabling Directions allow employers to stand down staff and reduce hours, the scheme does not allow employers to direct permanent employees to perform work in addition to their ordinary hours. For example, where a part-time employee ordinarily earns less than $1,500 a fortnight, they cannot be directed to work additional hours in order for their wage to equate to the JobKeeper $1,500 a fortnight payment. However, the employer and permanent employees may mutually agree for the employee to work increased hours.

Additionally, just like in normal circumstances it is a lawful and reasonable direction to require casual employees to be readily available for work. Employers may choose to roster casual employees for additional hours and that is the very nature of casual employees in that employers can increase and decrease their hours depending on the operational requirements of the business.

What happens if employees refuse to work?

Whilst in receipt of JobKeeper payments, an employee cannot unreasonably refuse a JobKeeper Enabling Direction by their employer to perform reduced hours, other duties or work from a different location.

Some employers are facing the situation where staff do not want to work, or do not want to work reduced hours, but they still want to receive the JobKeeper payments and remain at home. The Government has confirmed that employees still have obligations under their employment contracts to perform work, so long as it is safe to do so, and an entitlement to JobKeeper does not relieve employees of these obligations.

Employers should note that although an employee may refuse to work, they must continue to pass on the JobKeeper payment of $1,500 a fortnight if the employee is eligible to receive it, even if they refuse to work.

Where an employee refuses to work, an employer can give a lawful and reasonable direction to attend work in accordance with the JobKeeper Enabling Directions.

If an employee refuses without a valid reason, the employer may depending on the circumstances consider disciplinary processes against the employee for refusing to follow a lawful and reasonable direction.

Employers should consider taking a compassionate approach in these difficult times where employees may be concerned for their safety or have other child or carer commitments which may limit their ability to return to work. For these reasons prior to commencing any disciplinary process we suggest that employers openly discuss and consider any explanation an employee may offer as to why they are unable to work, and offer any possible alternatives, such as different shifts or other work that the employee is able to perform safely.

Ultimately, however, a failure to follow a lawful and reasonable direction can amount to misconduct and justify the termination of the employee’s employment.

A fair process should be followed in all disciplinary processes including making sure that the employee is clear on the direction being issued and is warned of the consequences of non-compliance.

Where an employee is terminated due to misconduct, they will no longer be eligible for the JobKeeper payments.

An employer can also raise a dispute regarding the JobKeeper scheme to the Fair Work Commission, including a dispute about the Jobkeeper Enabling Directions. An application can be made by lodging a Fair Work Commission Form F13A.

Safety concerns

Where an employee has concerns about returning to work because of safety concerns and possible infection of COVID-19, the reasonableness of not attending work will depend on the individual circumstances. Employers should request medical evidence where appropriate and determine whether any other suitable duties can be found (i.e. working from home, less contact with public, provision of PPE, etc).

HR Legal can advise on employment law matters related to COVID-19 including stand downs, lawful and reasonable directions, and/or disciplinary processes.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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