As many would be aware, eligible employers to the JobKeeper scheme are required to pay eligible employees $1,500.00 gross, or the amount payable to the employee for the performance of work (whichever is greater). However, the requirements for the JobKeeper scheme do not actually require the employee to perform any work in the period paid. Essentially, the scheme was designed to ensure as many employees as possible could keep their jobs (rather than be terminated) during the pandemic. Whilst some employees continued to work (some at the same or reduced hours), many employees were stood down on the JobKeeper allowance due to business closures.
However, now that restrictions are easing and many businesses are re-opening, some employers are facing a rather complex issue surrounding casual employees. In some instances, casual employees are representing to their employers that they are unavailable to perform work, whilst remaining entitled to the JobKeeper payment. If you are a business-owner and facing similar issues, what can you do?
Reasons for refusing to work
The answer lies essentially with the reasons your casual worker is refusing to work. In non-pandemic times, casual employees can accept or decline shifts offered to them. Every shift for a casual worker is a new contract – this is the nature of casual work, which differs to ongoing, permanent employment.
Here in lies the problem… In ordinary times, employers would be entitled to stop providing shifts to a casual employee who is consistently unavailable to perform work. However, under the current JobKeeper regime, the casual employee can refuse to accept shifts, but continue to receive JobKeeper payments (if the casual employee is a long-term casual and employed on a regular and systemic basis for at least 12 months). The employer then finds itself in a difficult situation, whereby it must pass on the JobKeeper payment to the eligible employee and also hire another employee to perform the work required (who is unlikely to be eligible for the JobKeeper payment due to being a new employee).
So, what can be done?
Disciplinary action and termination
If the casual employee refuses to work and provides no reason for their refusal, it may be open to the employer to take disciplinary action against the employee. Arguably, the employee’s actions may be tantamount to a repudiation of the employment arrangement. Such action may include termination. If you find yourself in this situation, we urge you to contact us prior to taking any action so that we can guide you through the appropriate steps and the potential risks. These matters must always be carefully considered to ensure you protect your business as much as possible from any potential complaints.
If the employee does provide a reason for not working, this situation must be carefully examined prior to taking any action. The most obvious reason that some employees may provide is concerns for their health and safety due to COVID-19. Employers have a duty to provide a safe work environment to the extent that it is practicable to do so. Accordingly, if employees are expected to return to the workplace, employers must ensure it is safe for them to do so.
Conclusion
As you can see, it is a tricky issue to navigate and one that should not be taken lightly. This issue is also not confined to casual employees. Under the JobKeeper regime, employers can provide ‘JobKeeper Enabling Directions’ to their permanent employees (such as performing different work, reduced hours, etc). However, some employees may not adhere to the directions, leaving employers in difficult positions as to what they can do.
If you find yourself in a situation where any of your employees who are receiving the JobKeeper payment are refusing to work for any reason, please contact us as soon as possible so that we can help you limit the risks and make the most appropriate decision for your business.
Francine Clancy, Senior Associate
