Can Casual Employees Choose Not to Work on Jobkeeper?
The JobKeeper scheme has been running for several weeks now, reimbursing eligible employers a fixed amount of $1,500.00 per fortnight for each employee. In an attempt to keep Australians employed and safe during the COVID-19 pandemic, the scheme does not require employees to perform any work in the period paid. As restrictions ease, many employers are now facing problems convincing casual employees on JobKeeper to take shifts.
Is the refusal allowed?
Normally, under workplace laws casual workers are entitled to refuse shifts when offered as there is no firm commitment from their employers as to how long they will be employed for.
Under the JobKeeper regime, eligible casual employees retain this right while continuing to receive payments. This is because the Fair Work Act 2009 stipulates that ordinary workplace laws apply outside of the JobKeeper powers.
This may differ for casual employees covered by an enterprise agreement.
Where a casual employee on JobKeeper refuses to work and has no reasonable excuse for refusing, an employer may choose to take disciplinary action. This can include warnings, suspension or internal policies and procedures.
In the circumstance that a business has a policy requiring casual employees to advise of their availability by a certain day or week and they fail to do so, they may undertake disciplinary action under a breach of company policy.
Terminating an Employee
Casual employers who have been dismissed as a result of choosing not to work may be able to rely on Fair Work protections.
Unfair dismissal protection is provided to employees pursuant to the Fair Work Act 2009 for individuals dismissed from their job in a harsh, unjust or unreasonable manner.
Casual employees will not be eligible for an unfair dismissal claim unless they are employed regularly and systematically with a reasonable expectation of continuing employment. There may be an argument that the necessary reasonable expectation of regular and systematic work does not exist and the casual employee is not entitled to unfair dismissal protection. This will always be a question to be determined having to regard to the facts of the particular situation. Where an employee continually refuses to work, however, it is unlikely that there will be an expectation for continuing work.
A claim for general protection may also be available to an employee who is unlawfully dismissed. Among other things, general protections protect employees who have been terminated on discriminatory grounds, for exercising a workplace right or for temporary absence from the workplace.
Casual employees on JobKeeper who are dismissed for failing to take a shift may, therefore, be able to make a general protections claim for adverse action.
This will especially be the case in circumstances where an employee refuses to work due to concerns for their health and safety during COVID-19 and the employer takes disciplinary action.