By Andrew Piper and Lindsay Carroll, NRA Legal
Although reasonably new (and still changing), the JobKeeper program has, so far, had a mixed effect on businesses.
Whilst some employers have embraced it wholeheartedly others, especially those with a workforce comprised largely of casual employees usually earning less than $1,500 a fortnight, have been more hesitant to undertake the significant cost increase to meet the requirements of the scheme.
In the retail industry in particular, the NRA has been receiving reports of casual employees making themselves unavailable for work for unsupported reasons or indeed no reason at all, secure in the knowledge that they will be paid $1,500 a fortnight through the scheme.
This presents a dilemma for employers, as their ability to continue to meet the requirements of the JobKeeper scheme necessarily involves employees being productive workers in order to generate the necessary cash flow to keep the business afloat.
Many employers are concerned that not only will this harm productivity and cash flow, it will also provoke resentment among the workforce who are still clearly required to attend work.
Can a casual choose not to work?
Under most modern awards a casual employee is defined as ‘an employee engaged as such’.
The nature of casual employment is such that the employer is usually under no obligation to offer work to a casual employee. By the same token, the casual employee is usually under no obligation to make themselves available for work on particular days and times.
The situation may be different for casual employees covered by an enterprise agreement, in which case this matter will need to be assessed in line with the terms of that agreement.
Can I take disciplinary action against a casual employee who makes themselves unavailable?
Whether a business can take disciplinary action against a casual employee will depend on the particular circumstances of each case.
For example, if the business has a policy which requires a casual employee to advise their availability by a certain day in each week, and the casual employee fails to advise of their availability (or unavailability) by that day, then the business may undertake disciplinary action for breach of that policy.
The situation becomes more difficult, however, if the employee complies with that process or policy but advises, for one reason or another (if any) that they will be unavailable for an extended period. In that circumstance, the question becomes whether the casual employee’s extended unwillingness to work amounts to either:
- misconduct in the form of a pattern of unreliability; or
- an indication that the employee no longer wishes to continue the employment relationship (i.e. a repudiation of their employment).
Is terminating a casual employee’s employment an option?
Termination of employment is always a risky endeavour, and particularly at times such as this should only be contemplated as a last resort rather than a first response.
In any dismissal situation, it needs to be established firstly that there is a valid reason for the dismissal. Whether the casual employee’s extended unavailability validly amounts to one of the abovementioned reasons is a question of fact, and unfortunately there is no standard answer to that question as it will vary depending on the circumstances of each case.
The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. This being the case, a one style fits all approach to disciplinary proceedings is hardly ever appropriate and the unique circumstances of each particular employee’s set of circumstances should be taken into consideration before any decision is made to take disciplinary action.
The risks – unfair dismissal
For a casual employee to be an eligible employee under the Jobkeeper program they need to be a ‘long-term casual employee’ of the employer. Part of the test for eligibility as a ‘long-term casual employee’ is whether the employee has been employed on a regular and systematic basis during the period of 12 months that ended at 1 March 2020.
This is significant since it is substantially the same test that is applied for determining whether a casual employee has satisfied the minimum employment period required to be eligible to bring an unfair dismissal claim.
The best protection against an unfair dismissal claim is always a procedurally strong disciplinary process, including:
- providing the employee with written warnings about their behaviour and advising them that further disciplinary action, up to and including termination of employment, may eventuate if their conduct does not improve;
- if the employee fails to improve their conduct within a reasonable time, then termination of employment may be the appropriate outcome, if this is the case you should clearly advise the employee:
- of the reasons why further disciplinary action is being contemplated;
- that one of the possible disciplinary outcomes is termination of employment; and
- of a date, time and place at which to meet with you to discuss their response to both the reasons for disciplinary action and the possibility of termination of their employment.
The employer should actively consider the reasons put forward by the employee for why their conduct should be excused, or why their employment should not be terminated, before any final decision with respect to the appropriate disciplinary outcome has been made.
The risks – general protections
When confronted with a casual employee who is declining to be available for work because they are content to receive JobKeeper, care should also be taken to avoid contravening any of the general protections provisions in Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act).
It is worth remembering that one of the recent amendments to the FW Act, section 789GY, makes the receipt of the JobKeeper payment by the employee a workplace right, and therefore no adverse action (including termination of employment) can be taken against an employee because they are entitled to receive JobKeeper payments.
The ability of a casual employee to make themselves unavailable for work is not, however, a workplace right within the meaning of section 341(1) of the FW Act.
It is therefore essential that any reason for disciplinary action be strictly confined to the conduct matters of breach of policy, unreliability or repudiation, separate and distinct from any entitlement to JobKeeper payments.
Do the amendments to the FW Act alter the employment relationship in any way?
Although there is much confusion arising from the JobKeeper scheme, one thing remains clear: the mere fact that an employee is receiving JobKeeper payments does not alter the employer-employee relationship.
Regardless of whether an employee is receiving JobKeeper payments, they are still required to satisfy their obligations under their employment contract, including complying with any lawful and reasonable directions of their employer.
If you are considering taking disciplinary action against a casual employee for refusing to work during the JobKeeper program or if you require advice on a separate disciplinary matter contact the NRA Workplace Relations team on 1800 RETAIL (738 245) for advice.