Problem W. Jobkeeper

Unfair Dismissal lodged for questioning JobKeeper enabled direction

As predicted, we are starting to see disputes and unfair dismissals being lodged over JobKeeper enabled directions. A hospitality worker in a popular pub in Hobart who was eligible for JobKeeper has alleged that she was unfairly dismissed after questioning her employer’s request to work additional hours doing cleaning duties to make up the value of JobKeeper.

According to a news story published on ABC news, the employer has denied terminating the employee because she questioned the requirement to work additional hours to receive JobKeeper.

It was only a matter of time before problems would start to emerge with JobKeeper given the fact that the scheme was rolled out in such necessary haste and covers over 850,000 employers and six million employees.

Prime Minister Scott Morrison has confirmed that there will be a review of the JobKeeper scheme in June and hopefully some of the issues employers and employees are experiencing will be addressed.

The unfair dismissal application of the hospitality worker, poses a few questions for employers:

Can you force employees to work extra hours under the JobKeeper to make up the $750 a week?

In short, no. You can ask and make an agreement with them to increase their hours but you cannot force them to do the extra hours. There is nothing in the amendments to the Fair Work Act around being able to increase hours. You cannot force someone to work extra hours just because they are earning more than they usually would under JobKeeper. It does feel a little unfair that employees only working one shift per week are entitled to the same amount as those with more shifts, however this is in the design of the scheme and unfortunately it’s not up to employers to decide who gets how much.

Can employees refuse to do different duties?

You can make JobKeeper enabled directions around requesting employees perform different duties during the period of JobKeeper however the duties in question must be within the employee’s skill and competency level and must be reasonably within the scope of the employer’s business operations. The employee must also have any relevant licence or qualification required to perform the duties.

In the situation highlighted above, we don’t think it would be unreasonable to offer cleaning duties to a hospitality worker, however it would need to be safe for them to do.

Another point to note, is that the worker needs to agree to it being reasonable. If they disagree and don’t think that the alternative duties are reasonable, firstly find out what their reasons for refusing the request are, then as a final option you have Fair Work available to deal with the dispute. A worker cannot unreasonably refuse a JobKeeper enabled direction but what is deemed reasonable will need to be assessed on a case by case basis.

We would highly recommend using this option before deciding to terminate the employee.

What about worker’s who are refusing to come to work?

We have had some clients already flag this one with us…again there needs to be some element of consultation, however if the employee would prefer to just stay home and be entitled to JobKeeper when the employer has work for them, this would not be in keeping with the scheme and we would recommend to the employer to use the provisions available to them under their contractual obligations and the Fair Work Act. If the employee had genuine concerns for their safety, then it would be advisable to discuss these with the employee to work out how to minimise or eliminate those risks. Remember that the Fair Work Commission can deal with disputes around JobKeeper lodged by the employer as well.

If the employee refuses to come to work can you withhold their payment?

No, do not withhold payment. This could be viewed as a criminal offence under the JobKeeper scheme. If you are receiving the JobKeeper payment you must pass it on to the employee. A better course of action would be to document the employee’s reasons for not coming into work. For example, if they are ill or have safety concerns this may be reasonable grounds to not come to work. We would recommend getting independent advice around whether you could reasonably move to terminate their employment and as always this should be done on a case by case basis.

If an employee resigns or their employment is terminated, how do you stop their payments?

If an employee for whom you are receiving the JobKeeper Payment resigns or has their employment terminated, you must notify the ATO. Be aware that there may be an amount payable to the ATO in such cases if there has been an overpayment.

If you replace somebody, will you get JobKeeper for the new employee?

No you won’t. Eligible employees need to have been permanent and employed with you on 1st March 2020, or a long-term casual for 12 months prior to this date. This can be problematic for a lot of employers. We would never recommend taking a decision to terminate employment lightly but especially during the pandemic, employers will need to think about the effects on their cash flow if they need to replace that employee as they won’t be eligible to receive any JobKeeper for that employee.

It will be quite interesting to see the outcome and decision that will be made on the hospitality worker’s unfair dismissal case mentioned above and may set some more guidelines for employers around what is in fact reasonable. We will keep you posted with updates on the ever evolving landscape around JobKeeper and some of the issues that are being commonly faced.

If you need tailored advice around JobKeeper or managing the effects of COVID-19 in your workplace, please get in touch with us hello@hrgurus.com.au

We have also created a COVID-19 employer pack with 10 useful templates, including a presentation for your employees around reducing hours, JobKeeper Enabled Directions Letter template and a 26 page employer guide which is available for purchase >here<.

Written by Jessy Warn, Managing Partner HR Gurus.

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