From JobKeeper to JobSeeker – employer’s rights to terminate employees unwilling to work during COVID

18 March 2021

The Fair Work Commission has considered the circumstances in which an employee may be terminated for refusing to work during the COVID-19 pandemic.

In issue

  • Is failing to be ready and willing to work a justification for terminating an employee during the COVID-19 pandemic and while the employee is receiving JobKeeper?

The background

Ian Howard (Applicant) was a casual employee employed by Pinnacle People (Respondent) to provide ‘front of house’ hospitality services at functions and events held at various locations including stadiums, residences, and retirement homes. In mid-April 2019, and following the introduction of the JobKeeper program in response to COVID-19, the Respondent contacted the Applicant about enrolling in the JobKeeper program and outlined its expectations of the employees to maintain the payments, which were:

  • employees must readily accept shifts offered;
  • if unable to accept a shift, there must be a valid reason;
  • for business and reporting purposes, the Respondent was required to keep the active staff register up to date. For this reason, the Respondent had asked employees to accept the shifts offered; and
  • if employees decline more than three shifts consecutively and are unwilling or unable to work, then the Respondent would review an employee’s employment with them and offer these shifts to alternate employees.

Throughout the year, the Applicant did not accept any shifts offered to him. His income went from $275 a week, to the $750 provided by the JobKeeper subsidy. The Respondent sent the Applicant reminders of his obligation, and had doubts that he was ‘ready, willing, and able’ to work. The only response received by the Applicant prior to his termination was voicing his concern about working in an environment that could potentially expose him to COVID-19, and that he had not received the shift offers and correspondence about his refusals to accept offered shifts from the Respondent. On the Respondent’s own review however, they determined that all of the correspondence to the Applicant was received, and that all but one had been opened.

In light of the Applicant’s continued refusal to work, the Respondent terminated his employment on 11 September 2020.

The Applicant subsequently filed an application for unfair dismissal.

The decision at trial

At hearing, the Applicant argued that he was ready and willing to work, but was under the impression that the workplaces he normally attended were closed due to COVID, and the offered shifts were in COVID risk environments in which he felt uncomfortable working in, although the Applicant conceded that he had not raised such health and safety concerns with the Respondent. The Respondent argued their expectations were clearly outlined, and the Applicant did not have a reasonable excuse for his unwillingness to work the offered shifts. Further, it was submitted that the work the Applicant would have done was in an environment where the COVID risk was not disproportionate to his health and that if he felt otherwise he should have notified the Respondent.

Deputy President Ian Masson found in favour of the Respondent.

Masson DP was satisfied that the Applicant had received 58 shift offers, and was aware of the Respondent’s expectations. The Applicant ignored all these in his stated belief that these sectors had been shut down and other shifts offered were in COVID risk environments, yet despite this, Masson DP was satisfied that the work offered was appropriate for the Applicant’s role and that a substantial proportion were not in COVID risk settings.

Further, there was no ‘scintilla’ of evidence of the Applicant’s genuine interest to work a shift besides renewing a police certificate and completing some online training. The fact the Applicant rejected 30% of shift offers and ignored the rest indicated his lack of motivation to meet his obligations to undertake work during the period in which his income was subsidised by the Commonwealth and taxpayers. Although the Applicant was reluctant to concede this point, there was little to no incentive for the Applicant to work any shifts given the JobKeeper amount of $750 a week was in excess of his pre-COVID earnings.

Masson DP was satisfied that the Applicant was not ready, willing, and able to work and demonstrated an unwillingness to be bound by his contract of employment and consequently his termination was not unfair.

Implications for you

Here, the FWC affirms the view that employees have a responsibility to make themselves available to work despite being on the JobKeeper subsidy. While genuine concerns about COVID transmission and the employee’s own health are valid reasons to turn down work, employees must otherwise be ready and willing to work reasonable hours or comply with reasonable availability requests from employers. Employees who are dismissed for not meeting minimum standards set by their employer, when these standards are communicated clearly and are reasonable, will not find relief for unfair dismissal. In this case, the repeated conduct of refusing shifts despite warnings is key to the fairness of the dismissal. However, the decision does give employers more power to direct employees to work during COVID and while on JobKeeper if those requests are reasonable, and the work is appropriate.

Mr Ian Howard v Pinnacle People [2020] FWC 6975

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