Many employers are expressing extreme frustration over their perception that their casual employees, who are on JobKeeper, are failing to attend work as required because the casual employees are claiming:
a. as casual employees they have the right/flexibility to refuse a shift;
b. they are fearful to return to a workplace with possible exposure to COVID-19;
c. they have elderly parents or children to care for during COVID-19;
d. they have flu like health symptoms that oblige them to avoid the workplace.
These are just four examples of legitimate “workplace rights” that may be exercised by a casual employee. Of course, there will be unco-operative and unreasonable employees will falsely claim these workplace rights, or rely upon other “excuses” for refusing to attend work, which are not workplace rights.
Exasperated employers, feeling wronged by the casuals whom they have long supported, express an “elephant never forgets” mentality, insistent that when the inevitable restructure and redundancy program is implemented “they will be the first to go!”
The Fair Work Act 2009 (Cth) allows employers a jurisdictional defence to unfair dismissal claims where the employer can demonstrate a “Genuine Redundancy” by reason of the employer:
a. requiring the redundant position no longer to be performed by anyone; and
b. undertaking proper consultation required by an applicable Award; and
c. having offered any available alternative position (which rarely exist in the current economic climate) to the redundant employee.
That might provide good protection against an unfair dismissal claim. However, employers need to be highly conscious of the risk of an alternative General Protections Claim that can be made by redundant employees to the Fair Work Commission.
If any employee asserts that adverse action was taken against them (they were made redundant or selected for redundancy) because they exercised a “workplace right” (a few examples of which are listed above), they can lodge a General Protections Claim. When any redundant employee claims that “I was sacked because I exercised a workplace right”, the onus then shifts to the employer to demonstrate that, the fact that an employee exercised a workplace right, played no part in the employer’s decision making. The employer would then need to demonstrate a genuine redundancy was necessitated by economic circumstances, genuine business needs and valid sustainability planning. To best demonstrate this, the employer needs to keep a clear “paper trail” that evidences their genuine reasons.
Employers who terminate employees for having exercised a workplace right are exposed to a risk of a General Protections claim. Further, the fact that employees have exercised a workplace right should not form any part of the decision making of an employer when implementing redundancies. However, where necessary restructuring is required, employers should make sure they have the required evidence to justify their valid decision making.
We are available to review any reasoning and decision making processes made by employers who wish to ensure they are in a position to demonstrate that they properly and lawfully made decisions, and to resist any General Protections claims by casual employees. Further, if an employer feels an employee is falsely claiming a workplace right or unreasonably refusing to return to work, we can provide guidance as to options for addressing these concerns.