Casual employees and JobKeeper: When casual employees make themselves unavailable for work

 In Blog

With the JobKeeper scheme still relatively new, there have been increasing reports of casual employees making themselves unavailable for work for unsupported reasons or, for no reason at, secure in the knowledge that they will continue to receive the fortnightly payment.

In its purest form, the nature of casual employment is that a casual employee is under no obligation to make themselves available to work. This presents a dilemma in the current environment where casual employees, who are receiving JobKeeper payments, make themselves unavailable for work in that it may have negative implications for the employer’s workplace productivity and cash flow.

As it currently stands, the current eligibility requirements of the JobKeeper scheme do not actually require the employee to perform work in that fortnight to receive the payment. Rather, the JobKeeper scheme was designed to enable businesses to cover their employee’s wages and keep employees technically employed. 

This raises the question of what an employer can do in this situation.

What are the employer’s options?

Attorney-General and Minister for Industrial Relations Christian Porter has made it clear that employees have obligations under the terms of their contract of employment to perform work so long as it is safe to do so. Furthermore, Porter has made it clear that having an entitlement to the JobKeeper scheme does not relieve employees of such obligations.

Ordinarily, an employer may provide a part-time or full-time employee with a lawful and reasonable direction to attend their usual hours of work, pursuant to the terms of the contract of employment and treat any unauthorised absence from work, without reasonable cause, as a disciplinary matter.

Where, however, a casual employee refuses to accept work, the situation is much more complicated.

As stated above, casual employees have the right to accept or reject work. Furthermore, there are no provisions under the JobKeeper amendments to the Fair Work Act 2009 (Cth) which deal with casual employees refusing to attend the workplace. Consequently, it will be necessary to review the terms and conditions of each individual employer-employee relationship, as well as any relevant internal policies governing the conduct of casual employees which provides requisite notice for absences or unavailability for work and potential disciplinary action.

Is it possible to terminate a casual employee’s employment?

Yes it is possible, however the termination must be for a lawful and valid reason.

Termination of employment always carries inherent risks and should be considered as a last resort.

Given that an employee’s eligibility for JobKeeper payments is a workplace right for the purposes of the general protections under the Fair Work Act, employers must take care to not terminate a casual employee’s employment because of that employee’s eligibility for JobKeeper scheme.

Further, should employers take the decision to terminate a casual employee’s employment, such action may potentially pave the way for the employee to bring a claim for unfair dismissal under the Fair Work Act.

As it currently stands, a casual employee may make an unfair dismissal claim if they have been engaged on a regular and systematic basis and had a reasonable expectation of continuing employment for a minimum employment period (depending on the size of the employer). This is a similar test to that of the JobKeeper scheme and so it is likely that, if the employee is eligible for the JobKeeper scheme, they would most likely be permitted to bring an unfair dismissal claim.

If this article has raised any concerns for you or your organisation please do not hesitate to contact either John Hayward or Kate Smith on (07) 4046 1124, for advice specific to your circumstances. 

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