Employment & Safety Update – 24 February 2021

Casual employee on JobKeeper payment not unfairly dismissed

Introduction

One of the hallmarks of casual employment is the ability to freely accept or decline shifts. Employers eligible for the JobKeeper wage subsidy are obliged to pay the JobKeeper subsidy to their employees regardless of whether they worked or not.

This creates an obvious tension, and some employers have had issues with some casual employees who were receiving JobKeeper payments and refusing shifts, ostensibly because they would be paid whether or not they took the work.

A recent case of the Fair Work Commission (FWC) has confirmed that employers are not obliged to continue the employment of casual employees who may be stood down and receiving JobKeeper, yet do not accept work when offered. In such cases, and provided that a procedurally fair process is followed, employers ought to be able to defend claims for unfair dismissal.

Following this decision of the FWC, employers of casual employees in receipt of JobKeeper payments should:

  • clearly outline the employer’s expectations around accepting shifts offered to them;
  • if any issues arise, document when and how many shifts are offered and subsequently rejected, and request reasons for rejection when several shifts are rejected.

Mr Ian Howard v Pinnacle People [2020] FWC 6975

Mr Howard worked for Pinnacle People (Pinnacle) – a labour hire company that specialises in providing ‘front of house’ staff to the hospitality industry. As a direct result of COVID 19, Pinnacle People experienced a 96% downturn in revenue, shifts for casual employees dried up, and they qualified for JobKeeper.

Pinnacle outlined their expectations of their employees during Covid-19, including that they continue to accept shifts and be ‘ready, willing and able to work’.

From March to September 2020, Mr Howard was offered 58 shifts, none of which were accepted. He claimed he wanted to work but was apprehensive about the risks imposed by Covid-19. Pinnacle had a clear policy that employees with health and safety concerns about working in risky environments and who had a valid reason (such as an immunosuppressed or had a pre-existing medical condition) would be offered shifts in an environment appropriate to their circumstances. Mr Howard did not raise these concerns with his employer.

Pinnacle wrote to Mr Howard with their concerns regarding his reluctance to accept shifts and sought an explanation from Mr Howard before a decision would be made regarding his employment. Mr Howard responded that he had not received any correspondence from Pinnacle, despite Pinnacle’s records revealing Mr Howard had received and opened all but one of the 58 emails sent to him. The decision was made to terminate Mr Howard’s employment on the basis his conduct demonstrated he no longer wished to be an ongoing casual employee with Pinnacle People. Mr Howard applied for an unfair dismissal remedy.

In the proceedings, FWC found Mr Howard’s claims that he wanted to work were disingenuous.

His conduct of declining or ignoring all offers of work demonstrated an unwillingness to be bound by the contract of employment. It noted that Mr Howard received a $475 per week pay increase from JobKeeper, regardless of whether he worked any shifts or not, disincentivised him from working.

The FWC consequently found there was a valid reason for the dismissal and the dismissal was not harsh, unjust or unreasonable.

Conclusion

With JobKeeper currently in place until 28 March 2021 (and potentially longer), the decision in Howard v Pinnacle People provides some certainty to employers on how to manage casual workers who regularly refuse to accept shifts.

If you have any queries or would like further information regarding this update, please contact:

Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au

Caleb Devine
Lawyer
T: (03) 6235 5125
E: cdevine@pageseager.com.au

Published: 24 February 2021

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