What Can I Do When Employees Refuse To Return To Work?

With COVID-19 restrictions starting to relax, many places of work are starting to return to normal. Workplaces which were previously closed are re-opening, employees whose hours had been reduced are starting to return to more normal patterns of work.

We have previously provided guidance on how employers should plan for a return to the workplace and develop a COVID-19 safe work plan.

One matter which we are now being asked to advise upon frequently is how employers can deal with employees who are reluctant or outright refusing to return to the workplace.

We look at several situations in which this might arise below.

 

JobKeeper employees not wishing to increase their hours

Recent amendments to the Fair Work Act 2009 (Cth) enable employers to reduce the hours of employees eligible for JobKeeper – in some circumstances down to zero hours – through a JobKeeper Enabling Stand Down Direction.

If an employer now wishes to increase a permanent employee’s hours (albeit not to their original level of hours), then the employer would have to issue a new JobKeeper Enabling Stand Down Direction and follow the notice and consultation requirements set out in the Act; see our guide to giving JobKeeper Enabling Directions).

If an employer wishes to completely withdraw the direction (so that the employee returns to their normal hours) then the Act provides that the employer can do this without following any formal process – although the best practice would dictate that employees should be consulted with and given as much notice as possible.

Some permanent employees may be reluctant to increase their hours, especially if doing so will not provide them with a financial benefit (the wages they will receive might not increase above the $1,500 per fortnight they receive in JobKeeper subsidies if they remain off work). However, such a refusal is unlikely to be a valid reason to refuse the employer’s request. It would, therefore, be possible for employers to treat a failure to attend work as directed as a disciplinary matter – we address the process to follow in these circumstances later in the article.

The situation is more complicated in respect of casual employees, as we explain below.

 

Casual JobKeeper employees refusing shifts

One of the hallmarks of casual employment is the ability of a casual employee to accept or decline shifts as they see fit.

Issues have arisen for some employers where casual employees in receipt of JobKeeper payments are refusing shifts where they realise they will be entitled to the JobKeeper subsidy whether they perform work or not.

Whilst part-time and full-time employees clearly have an obligation to present at work as required, the situation is more complicated for casual employees.

Although a casual employee may have valid reasons for refusing shifts (caring responsibilities for example), what if a casual employee indicates that they will not be available to perform any work for the entirety of the JobKeeper payment period (but still wish to be paid the subsidy)?

This can mean an employer has to incur additional costs of hiring (and paying), new casual employees, to perform the required work who will not be eligible for JobKeeper (rather than being able to use JobKeeper payments to help subsidise the wages of existing employees for work actually performed).

None of the amendments made to legislation as part of the JobKeeper program provide a clear ability for an employer to compel a casual employee to accept work in these circumstances. It may be that if the employer is able to explain to the employee the negative affect their refusal to work is having on the business, then the employee will be persuaded to return, but this cannot be guaranteed.

Although there is nothing in the JobKeeper legislation that prevents a JobKeeper employee’s employment from being terminated (at which point they would cease to be eligible for JobKeeper payments), we consider there would be risks in terminating a casual employee’s employment for refusing shifts or threatening to do so.

The main risks would be:

• a claim in unfair dismissal (as it will be arguably unfair to dismiss a casual for refusing a shift when their ability to do so is a hallmark of a casual relationship);
• A claim in general protections/adverse action (due to an employee’s eligibility for JobKeeper being a workplace right).

 

There has not yet been a court or Fair Work Commission decision dealing with these issues. We would, therefore, suggest seeking professional advice if you are dealing with such a scenario.

 

Employees not wanting to return to work due to the risks of COVID-19

A third scenario may arise where an employee who is currently stood down or perhaps working from home, does not wish to return to their previous ‘normal’ workplace due to perceived risks of contracting COVID-19.

An important step in preventing such scenarios is for employers to properly consider and implement a COVID-19 safe work plan, which aims to reduce the risk of the spread of the virus within the workplace (through social distancing, increased hygiene, etc).

If an employer has developed and implemented a plan and an employee still feels unsafe to return we would recommend the employer consults with the employee to explore matters including:

• Any other measures the employer can implement in the workplace to safeguard employees;
• Whether it is possible for the employee to continue to work remotely or from home;
• Whether there can be a change to the employee’s start/finish times in order that they attend (and travel to) the workplace in less busy times;
• Whether the employee can take a period of agreed leave (annual leave, long service leave, unpaid leave, etc) if they do not wish to return to work at this time.

 

Ultimately if the employee and employer cannot come to an agreement as to resolve the matter, the employer may have to consider directing the employee to return to work even if the employee does not wish to do so.

Employees generally have a duty to follow any reasonable directions given by their employer. In circumstances where an employer has implemented a COVID-19 safe work plan and taken reasonable steps to adequately safeguard employees at work, it will ordinarily be possible to direct employees to return work unless they have a special medical reason why they cannot safely do so.

If employees indicate that they are especially susceptible to contracting COVID-19 (e.g. due to a medical condition, advanced age, etc.), the employer could consider directing the employee to attend a medical examination to assess the risks. If the employee receives medical clearance to attend the workplace then it would seem that the employer would be on fairly safe grounds to direct an employee to return to work or face disciplinary action; see further below.

Where there is a medical opinion that the employee is of increased risks of attending the workplace and contracting COVID-19 then there will be risks if the employer insists – contrary to medical advice – that the employer must attend work. A safer approach would be to allow the employee to work remotely or, if this is not possible, for the employee to take a form of leave.

If an employee does not wish to use annual leave, long service leave or unpaid leave then it may still be possible for an employer to compel the employee to take such leave (there are increased abilities for employers to require employees to take leave under the JobKeeper amendments to the Fair Work Act 2009 and under amendments made to several modern awards due to COVID-19).

It is also possible that personal/carer’s leave will be available for employees who are in a high-risk group due to a medical condition. The position is less straightforward in respect of elderly employees given the Fair Work Act 2009 states that such leave is for when an employee is “not fit for work because of a personal illness, or personal injury”. This does not sit well with a situation where an employee is at present fit but wishes to avoid work due to the risk of contracting an injury. Due to the uncertainty of how the law operates in this area, we would encourage employers to seek professional advice.

 

Taking disciplinary action where an employee refuses to return to work

As noted above, there will be circumstances where an employer will be justified in taking disciplinary action when an employee refuses to attend work.

As with any disciplinary matter, it is generally advisable to try and resolve matters informally first. However, if informal discussions do not produce the desired result, we would advise giving the employee a written direction to attend a formal disciplinary meeting (which could be held remotely if required).

If, following the disciplinary meeting the employee cannot give a valid reason why they have not attended work a formal written warning can be issued to the employee. This will warn them that if they continue to refuse to attend work their employment will be terminated.

If the employee continues to fail to attend work after being issued with such a written warning (or warnings), the employee should be invited to a final disciplinary meeting. If the employee continues to fail to provide a valid excuse for not attending work this may ultimately give the employer safe grounds to terminate employment. See our guidance on holding a formal disciplinary meeting.