All posts by: jake123

Redundancy Laws

Fair Work Act 2009 s.389 states

An unfair dismissal application cannot be made if the dismissal was a case of genuine redundancy.

A dismissal is a case of genuine redundancy when:

1) The employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise,

2) The employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy.

3)A dismissal is NOT a case of genuine redundancy if it would have been reasonable in all of the circumstances to redeploy the person within:

the employer’s enterprise, or

the enterprise of an associated entity of the employer.

IF the employer has not complied with the “three arms” to S389 then it is not a genuine redundancy and a unfair dismissals or general protections application can be lodged, be aware of the very strict 21 days from your termination to do so.

What is a Genuine Consultation?

Consultations must be genuine and not perfunctory. They should be meaningful and engaged in before an irreversible decision to terminate has been made. The purpose of a consultation is to facilitate change where that is necessary, but to do that in a humane way which also takes into account and derives benefit from an interchange between worker and manager.

Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. Any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals – before the mind of the executive becomes unduly fixed.

Commentary

A redundancy can be a bad redundancy, but still be a genuine redundancy, Employers make the wrong Employees redundant all the time. What they cannot do is target you because you have complained about something, you’ve been on Workcover,

your pregnant, to simply replace you with a lower paid worker, to simply rename the position. The list is endless. You do not have a position for life, its all about the reason, off course the Employer will always say it’s the recession, the technology has changed, upskilling. etc, etc.

It’s what you know. (check on-line to see if your position or similar position is advertised). Why are you targeted? With the current recession, it can be sometimes referred to as pay back, perceived troublesome Employees have to go, older, injured, ill, ones insisting on being paid properly.

Why if you’re a good loyal, productive employee would they really get rid of you. It’s all about the motive, as to why would an Employer go to the time and cost to get you out of their business. Give us at A Whole New Approach P/L a call to work through your situation.

Consultation is more than the Employer telling you they are making you redundant and they have had a look around and there is nothing else for you. Consultation has to be legitimate, in advance of the potential redundancy, and allows for your input, and the Employer has to consider your input, before the decision is made.

Maybe you will take a lower position, maybe you have experience, skills or qualification’s the Employer is unaware of, it’s your absolute right to have those discussions in advance of the potential redundancy.

Redeployed, if its larger company clearly there may be options, the Employer may still be employing casuals, contractors, staff still in their probation period, why weren’t you offered these positions, you may have been prepared to travel, reskill with little effort, that’s why consultation is important.

Some Employers indicate now that we are making you redundant, can you resign, under no circumstances do you resign, get advice first.

Redundancy entitlements can be allot of money, explore your options.

This commentary is short and meant to start the process of you deciding is there anything you can do about your redundancy situation. Ring us anytime,

“Knowledge is power, without it we become ignorant towards the truth.”
― Hopal Green

DISCRIMINATION OF THE POOR IN THE WORKPLACE

What is discrimination of the poor in the workplace?

In Australia, the legal definition of direct discrimination is being subjected to ‘less favourable treatment as a result of possession of a protected attribute’. The ‘protected attributes’ include race, age, sex, sexuality and others, but importantly, does NOT include poverty or socio-economic status.

We at A Whole New Approach firmly believe that this is a serious cause for reform in Australian law, as once again, those who are under-privileged socioeconomically, are being discriminated. Time and time again we are finding Employers are mistreating employees, through bullying, harassment, adverse actions, unfair and unlawful dismissals, on the basis that poor employees, or implied poorer employees do not have the means, resources, education, and family support to challenge the Employer though the Fair work Commission and the various equal opportunity and human rights commissions. This is demonstrated time and time again where specific groups are targeted, young employees from broken homes, females who are victims off domestic violence, older divorced males, etc.

What we as a company understand, but most fail to realise (particularly those that have only known privilege), and what the legislative council needs to consider, is how interconnected lower socio-economic status and poverty is linked to the already instituted protected attributes under Australian law.

Poverty & Exclusion

Multiple studies have shown how highly correlated growing up poor is with other disadvantages, such as its effect on educational achievement, physical and mental health, healthy social interactions and behaviour, family stability – the list goes on. All these consequences that are significantly linked to poverty, or lower socio-economic status, each potentially have a rolling effect to encouraging social exclusion of those that are less fortunate. This follows into roles in the workplace.

A look into mental health service use in Australia very clearly shows the significant disparity between those of low socio-economic backgrounds and those from higher. The former show higher reports of complex mental disorders like ADHD, anxiety, depression and various other conduct disorders and as a result, more commonly reach out to these services provided. Other factors frequently related to poverty such as absent parents, less supportive schools and communities, all have shown causative relations to poorer mental health.

As previously mentioned, mental health is not the only thing detrimentally affected by poverty. Too many studies have pointed out that being of lower socio-economic class has significant associations with poorer physical health status, even mortality. The stress of paying ordinary household bills may already be a heavy burden on those that have less, then there is the added burden of deteriorating health and medical bills, which then in turn attracts even more illnesses. Example is low socio-economic groups, are forced to retire earlier from work due to poor health, and clearly follows less superannuation to support themselves.

Socio-economic associations even have a negative impact on academic attainment throughout one’s life. Alarming observations include seeing children of impressively high intelligence but lower wealth at the age of 3, being completely taken over by those of significantly lower intelligence but higher wealth, by the age of 5. Socio-economic class continues to be a dragging weight to academic achievement, whereas wealth affords more supportive and well-resources institutions to boost academic success. Quality education has many different implications; such as better-paying jobs which would help end the cycle of poverty, less stressors in life which would lead to better overall health… The benefits continue while those with lower education as a result of poverty, continue to lag farther and farther behind. 

This article only briefly attempts to paint the picture of the vicious cycle of being poor, and how important it is to realise these realities of how it impacts workplace behaviour. Even if being poor – and its very real consequences – are effectively ignored by the law, A Whole New Approach will do our best to have your pain and suffering recognised in the eyes of the law and by the Employer and persons that has caused you this detriment. We recognise your pain, will fight for your rights and do our utmost to be your best advocate.

The Importance of Representation for an Unfair Dismissal

Have you been recently dismissed, discriminated against or harassed? Are you looking at making a claim but are unsure about how to approach the situation? You may need to seek advice and/or representation through a paid agent or lawyer. To discuss possible representation or to seek advice regarding your unique circumstances, please give A Whole New Approach a free call on 1800 333 666.

A representative is a person who acts on a party’s behalf. This could be a lawyer, a paid agent, an employee or employer organisation or someone else. A Whole New Approach, an independent body of workplace advisors and paid agents, has run and been successful in over 10,000 cases in the Fair Work Commission, Anti-Discrimination Commissions, Boards and Tribunals. We draft the claims and applications on your behalf to a Federal Court standard, run the conciliation conferences, run arbitrations and have thousands of decisions published in the various jurisdictions. Although we would act as your advocate, we provide even handed advice in regards to the prospects of your case. The majority of our cases are run on a no-win, no-fee basis. This means we are happy to carry the risk and run your case until you decide you are happy with the resolution.

When running a dispute or claim in the Fair Work Commission, Anti-Discrimination Commissions, Boards and Tribunals, you have the option of representing yourself or seeking representation through paid agents such as A Whole New Approach. The various commissions, boards and tribunals support self-represented individuals but they will not always have your best interests in regards to settling your matter. When a claim is brought to these various jurisdictions, their job is to resolve the matter, whether you are happy with the outcome or not. This is why representatives, lawyers and paid agents can assist you as they will argue your case to the best of their ability in order to get you the outcome you deserve.

If this is not convincing, take a look at the statistics and procedures of each jurisdiction when deciding whether you should obtain a representative for your claim.

Fair Work Commission

A Whole New Approach deals closely with the Fair Work Commission, as we lodge unfair dismissal and general protections applications on a daily basis on behalf of our clients. These applications are set down for a conciliation conference, in which the parties attempt to come to a resolution before the matter is referred for a formal hearing and determination.

When lodging an unfair dismissal application, our specialist staff understands the test under the Fair Work Act 2009 (Cth) and drafts the claim to demonstrate why the dismissal is harsh, unjust or unreasonable. In regards to lodging a General Protections application, our team understands this narrow provision of legislation and when drafting our applications, we clearly demonstrate the link between the exercise of workplace rights and an employer’s adverse action. It is a common issue at the Fair Work Commission in that those who are not eligible to lodge an Unfair Dismissal application, lodge a General Protections Application and continue to use the term “unfair” in their argument. Unfair Dismissal Applications are often disguised as General Protections Applications but these have different tests under the Fair Work Act 2009 (Cth), which our experienced team knows. By drafting your claim properly from the beginning, it demonstrates that you understand the legislation, how the Respondent has contravened these provisions and thus when negotiating a settlement or remedy, the Commission and the opposing party will take you more seriously and be more inclined to settle.

When appearing at the Fair Work Commission, there are standards for the conduct of all people attending a hearing or conference at the Commission. The standards help the Commission to provide fair hearings for all parties. Providing fair hearings involves allowing all parties to put their case forward, and to have their case determined impartially and according to law. The Commission and all parties appearing before it, including representatives, have responsibilities to each other and in providing a fair hearing for all participants. When you have a representative, they will guide you as to what these standards are and this will indicate to the Commission and the opposing party that you are taking the matter seriously. In order to argue the best possible outcome, applicants need to seize both the moral and legal high ground in the way they carry themselves during these conferences and hearings.

It is also important to note that the Fair Work Commission is an independent government body and so they are impartial. This means that the agents of the Fair Work Commission, such as conciliators or Deputy Presidents, are not on the employee’s side. They provide even handed advice to both employers and employees. If you engage a representative, they will address the merits of your claim, the Respondent’s arguments and provide you with the best advice on how your case should be handled.

When the matter is listed for a conciliation conference, representatives make need to seek leave, or permission, to appear on an Applicant’s behalf, depending on the Application. In most cases, representatives are allowed to appear on behalf of the Applicant as the Commission understands that the Applicant unfamiliar with these types of proceedings. The Applicant would be going up against large companies and corporations who have more knowledge about the requirements and procedures under the Fair Work Act 2009 (Cth). In addition, most claims have a great deal of complexity in regards to the issues involved and so your representative will assist you in outlining the relevant argument for your particular application in order to “make your case” and convince the other side to settle.

In the Fair Work Commission 2018-19 Annual Report, 13,928 Unfair Dismissal applications were lodged. Of these 13,928 applications, 78 percent were (a total of 8,161) were resolved at the conciliation conference with the assistance of the Commission staff during conciliation. However, in order to settle these matters for an outcome an Applicant rightfully deserves, a representative’s expertise in negotiating are of high importance. A Whole New Approach staff are master negotiators and use a range of arguments to drive the best possible settlement for our clients. The outcomes of these conciliations included monetary payments and non-monetary items (such as a Statement of Service or Resignation) for 50 percent of these claims. In 26 percent of cases, there were monetary payments only and in 18 percent of cases, there were non-monetary items only.

Our team also understands when employees are eligible to make an application and remind those enquiring about our services, of the strict 21 days to lodge an application. This means if you have been terminated, do not waste time dwelling on your termination but instead contact A Whole New Approach and enquire whether you have grounds to lodge an unfair dismissal application.

If a matter does not settle at conciliation and depending on other factors, our expert team at A Whole New Approach can guide you as to what the next best option is. If an unfair dismissal application is not resolved at the conciliation conference, the matter referred to arbitration, in which the matter is determined by a Commission member. However, in claims where there are additional issues at hand, such as whether there is discrimination or sexual harassment, we often discontinue the matter at the Fair Work Commission and lodge an application to Anti-Discrimination Commissions, Boards or Tribunals. Again, these applications are primarily run on a no-win, no-fee basis and so we pursue the matter as far as we need to before you are offered a resolution you deem fair and just, given the circumstances.

Anti-Discrimination Commissions, Boards or Tribunals

A Whole New Approach lodges discrimination complaints in various jurisdictions around Australia to Anti-Discrimination Commissions, Boards or Tribunals. Our expert team has lodged thousands of applications of discrimination and sexual harassment to these jurisdictions and continue representing our clients. Although these Anti-Discrimination Commissions, Boards and Tribunals have measures in place for self-represented individuals, statistics show that applications with representatives have a higher settlement rate all together. For instance, the 2018-19 Annual Report for the Anti-Discrimination Board of New South Wales indicates that only 19.1 percent of cases settle at or after conciliation and only 7.5 percent of cases settle prior to conciliation. This means that there is a total settlement rate of 26.6 percent. A total of 14.6 percent of cases that are resolved at the Anti-Discrimination Board of New South Wales, these are referred to the New South Wales Civil and Administrative Tribunals.

A Whole New Approach Settlements

If you feel that you have been unfairly dismissed, discriminated against or harassed, you deserve to take action against the unlawful treatment you have endured. However, as things have not worked in your favour so far, it is difficult to see how a person would be successful at taking on their previous employer in these disputes.

A Whole New Approach statistics indicate that a high majority of our cases settle either at the Fair Work Commission or if lodged to the Anti-Discrimination Commissions, Boards or Tribunals, a large majority will settle at this stage. Regardless of where we lodge the Application, our 20 years’ experience and master negotiating skills mean we can assist you in improving these statistics and ensuring you obtain a settlement. In order to discuss potential applications, please give us a free call on 1800 333 666.

Retired Doctors and Nurses Recalled to Fight Coronavirus

Over 40,000 former nurses, doctors, and pharmacists have been urged to re-join the medical workforce, in order to provide a boost to Australia’s front line in the fight against Coronavirus.

Retired Health professionals and those whose registration has lapsed within the last three years are eligible to apply for medical work as of next Monday. The former medical professionals who apply will be added to the general register for 1 year, under a pandemic sub-register.

Australian Health Practitioner Regulation Agency CEO Martin Fletcher stated the potential to have thousands of healthcare workers reinstated during the pandemic would relive stress on medical staff who are already working.

Internationals, recent medicine graduates and retirees are all currently being fast-tracked to help fill the shoes of much needed medical practitioners. Physiotherapists and radiologists who have recently put a holt to working will also be contacted in staff call-ups.

In order to ensure the right candidates qualify, those with health issues along with others who have been struck off the register will currently be told to opt out. Employers will be asked to take advanced screenings of candidates to ensure Australia provides the right health care workers to those in need.

Ex-Medical Professionals

In Italy, it has been estimated one doctor per day has past due to the Coronavirus (COVID-19), including two doctors who were in their early 70s. These doctors had come out of retirement to assist their country with the outbreak, so it is advised those who have other underlying illnesses need not apply.

Redundancy during the Coronavirus Pandemic. What are my rights?

Most people who have found our web site – Unfair Dismissals Australia – have concerns about their current workplace situation and are looking for advice during these uncertain times, typically in the following areas:

If you are still employed and your enquiry is to do with wages, rates or money owing the simple and most effective option for you is to call the Federal Workplace Ombudsman’s office on 131394.

Employees scramble as they try to figure out what to do about the uncertain times that lie ahead due to the Coronavirus (COVID19) pandemic. Employers begin to become vague and hard to reach as they put plans in action to lay off thousands of workers whereby employees and their families get first wind of this in the media. Redundancy seems inevitable but does not mean you should walk away empty handed. At Unfair Dismissals Australia we know every law and can ensure every stone goes unturned to get you the compensation you deserve making these difficult times easier for you and your family. The Coronavirus pandemic brings with it rules, regulations and loopholes that govern as to how employers operate and issue redundancy to employees who wait in anticipation.

Did You Know?

If you feel you are about to unfairly dismissed or made redundant from your company you can call us here at Unfair Dismissals Australia and remain anonymous to get advice and an idea on your options going forward? Often employees are not aware of their rights or even that unlawful termination claims exist. It is well worth your time calling 1800 333 666 to find out how we can help you going forward.

Information about Employee Stand downs

The option for employers to stand down employees due to the coronavirus crisis is very fact dependent and an employer should exercise the option cautiously. The employer must be able to demonstrate that:

  • There is a stoppage of work.
  • The employees to be stood down cannot be usefully employed (This is not limited to the typical work the employee performs).
  • The reason for the stoppage must also be one that the employer cannot reasonably be held responsible for.

Coronavirus and Australian workplace laws

Last updated 26 March 2020 | Published 4 February 2020

When considering our guidance, we encourage employees and employers to work together to find the most beneficial and workable solutions that suit their individual workplaces and staff. We are all facing difficult and unprecedented circumstances, and it’s in everyone’s interests to try to reach productive and cooperative solutions. Employers and employees can explore options that suit their individual needs, including taking different forms of leave (paid and unpaid), working from home, or taking extra precautions in the workplace.

Recent updates – 26 March 2020

Updated:

Recent updates – 24 March 2020

Updated:

We’ll continue to update the information on our website as the situation develops and as needed. The information provided is current as at the time of the last update. It is not legal advice but represents the views of the Fair Work Ombudsman based on the best available information. We encourage you to regularly check this page for more information.

On this page we provide links to important Government information about coronavirus.

We also answer frequently asked questions about workplace obligations and entitlements if you’re affected by the outbreak of coronavirus (also known as COVID-19).

Australian Government information about coronavirus (COVID-19)

Please visit:

  • Australian Government Department of Health  – for the latest information on the virus, including requirements and conditions for isolation and quarantine periods and when testing should be sought
  • Services Australia – for information and services to help you if you’re affected by coronavirus, including Centrelink payments and support
  • Australian Government Treasury  department – for information on the Federal Government’s economic response to coronavirus, including information on support for individuals, businesses and the economy.
  • Australia.gov.au   – for the latest coronavirus news, updates and advice from government agencies across Australia
  • Business.gov.au  – for information about financial assistance, eligibility and timing for new government support for Australian businesses.

Health and safety in the workplace

Enforceable government directions

“Where an Australian state Government or officer makes an order that is enforceable under the law (an enforceable government direction) and which prevents an employee from working, an employer is not required to pay the employee (unless the employee uses paid leave entitlements).” – Fairwork Australia

This could occur, where a work site or workplace has been closed down either temporarily or indefinitely. This does include the isolation measures which have been enforced to reduce the risk of Coronavirus spread.

The coronavirus (COVID-19) situation is continually changing as we gather new information and adjust according to the statistics and victims of the virus. Due to these reasons state governments will continually be changing rules over the upcoming months.

“In line with recent government announcements, some enforceable government directions have already been, or will soon be, issued with respect to restaurants, gyms, pubs, clubs and other services deemed non-essential.” – Fairwork.gov An example of this are Victorian and New South Wales governments closing work to reduce social gatherings in the space of 12pm to 12am.

As a result of the new rules being issued, many affected businesses will likely have the right to stand down employees, if they cannot usefully be employed. See When can employees be stood down without pay?

Workplace obligations and entitlements

We encourage all Australian employees and employers to work together to find solutions appropriate to the circumstances of the current working laws. This may include taking different forms of leave, working from home, or taking extra precautions in the workplace.

If you have an urgent enquiry about your workplace obligations or entitlements or feel you have been unfairly dismissed, please contact us on 1800 33 666

When can employees be stood down without pay?

Employers and employees are encouraged to work together to find appropriate solutions that suit the needs of individual workplaces and staff. Employees who are stood down without pay remain employed for the period of the stand down.

Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

Whether the option of standing down employees is available in circumstances relating to coronavirus is very fact dependent and an employer should exercise the option cautiously. The employer must be able to demonstrate that:

  • there is a stoppage of work
  • the employees to be stood down cannot be usefully employed (which is not limited to the work an employee usually performs)
  • the cause of the stoppage must also be one that the employer cannot reasonably be held responsible for.

If an employer unlawfully stands down employees without pay, the employees will likely be able to recover unpaid wages.

Employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has coronavirus.

Some examples of when employers may be able to stand down employees include:

  • if there was an enforceable government direction requiring the business to close (which means there is no work at all for the employees to do, even from another location)
  • if a large proportion of the workforce was required to self-quarantine with the result that the remaining employees/workforce cannot usefully be employed
  • if there was a stoppage of work due to lack of supply for which the employer could not be held responsible.

Is a contract involved?

Enterprise agreements and employment contracts often contain rules and agreements about when an employer has the option to stand down an employee without pay. Employers should always consider whether their obligations are impacted by any applicable enterprise agreement, award or policies.

If an employee is able to read their contract which does not contain any policies regarding stand downs it is under their best interest to contact an expert on 1800 333 666 to learn more about your options. If the employee does have rules written within their agreement regarding no pay during a stand down it does not hurt to contact Unfair Dismissals Australia to get clarification if one is unsure where they stand.

Please note, employers may not be required to pay employees for the period of a stand down but may still choose to pay their employees. Employees still acquire leave as normal for the duration of the stand down.

Hospitality Award

“On 24 March 2020 the Fair Work Commission made a determination to vary the Hospitality Award. The new Schedule L applies from 24 March to 30 June 2020. The changes improve award flexibility during the outbreak of coronavirus for classifications and duties, hours of work for full-time and part-time employees and annual leave. Find out more: Hospitality Award flexibility during the outbreak of coronavirus.” – Fairwork.gov

Useful Links

  • Australian Government Department of Health  – Find the latest information on the coronavirus, including requirements and conditions for isolation.
  • Services Australia – Find work and employment information and services to help you if you’re affected by coronavirus.
  • Australian Government Treasury  department – Find information on the Federal Government’s economic response to coronavirus.
  • Australia.gov.au   – All the coronavirus news, updates and advice from government of Australia.
  • Business.gov.au  – Information regarding financial assistance and eligibility and all the Australian Government support for Australian businesses.

Workplace Laws & Legal Action

THOSE embroiled in legal action will now have to make all efforts to resolve disputes before heading to court, thanks to legislation introduced today.

Attorney-General, Robert McClelland, has introduced legislation requiring people to take genuine steps to resolve their legal disputes before going to court in a bid to improve access to justice.

“Access to justice is not just about access to a court or a lawyer, it is about providing practical, affordable and easily understood information and options to help people prevent or resolve their disputes,” McClelland said.

The Civil Dispute Resolution Bill 2010 will require prospective litigants to lodge a statement with the court detailing what steps they have taken to resolve their dispute or, if they haven’t, the reasons why.

The statement will also provide additional information that the court can consider when making orders and directions under its existing case management and costs powers.

According to the new legislation, genuine steps to resolve a dispute include exchanging information between parties to more clearly identify the issues in dispute, or considering possible resolution through mediation or conciliation.

Litigants can also send a notice of dispute outlining the issues and referencing relevant information, or agree to participate in negotiations when initiating legal proceedings.

“These requirements will promote a move away from the adversarial culture of litigation by encouraging parties and lawyers to consider early options for resolution outside of the courts, before significant costs are incurred,” McClelland said today.

The Bill implements key recommendations of the National Alternative Dispute Resolution Advisory Council (NADRAC) and complements the active case management powers introduced in the Federal Court last year to promote the timely, inexpensive and efficient resolution of disputes, the Attorney said in a statement today.

The measures are in keeping with the federal government’s “Strategic Framework for Access to Justice” targeting better access to justice.

Coronavirus (COVID-19): Advice for employees in Australia

If work can be completed by an employee at home, the employer is recommended to:

  • Ask staff who have work laptops or mobile phones to take them home so they can continue working at a safe distance from a crowd.
  • Arrange paperwork tasks that can be carried out from home for staff who do not work on computers
  • If a majority of systems are cloud based and employees have computers that can be used from home the employee can often achieve a productive level of work from home.

If an employer and employee agree to working from home, the employer should:

  • Pay the employee the same wage as usual
  • Keep in touch with the employee
  • Actively check on the employees health and wellbeing.

Find out more about:

Choosing not to go to work

Some employees might feel they do not want to attend work as they’re afraid and of catching the coronavirus which also causes stress. This could particularly be the case for staff who are at higher risk. A higher risk environment are offices and workplaces with copious amounts of people. This does not necessarily mean a high volume of staff but rather a place many people come and go throughout the day.

An employer should take the time to listen to any concerns staff may have and should take the correct steps to protect everyone in the workplace.

For example, they could offer extra car parking where possible so that people can avoid using public transport, disallow walk-ins and instead operate on a book-in basis.

If an employee still does not want to go to work, they may be able to arrange with their employer to take the time off as holiday or unpaid leave. Depending on the situation the employer does not have to agree to these terms. To learn more about unpaid leave and workplace disagreements you can contact us here at Unfair Dismissals on 1800 333 666.

If an employee refuses to attend work without a valid reason, it could result in disciplinary action by the employer. During these stressful times communication is the key to negotiating a plan of action between staff and employers.

What if someone in the workplace has Coronavirus?

If someone is sick in the workplace with symptoms associated with the coronavirus, they should immediately:

  • Notify their employer and go home.
  • Avoid touching anything and anyone.
  • Cover the nose and mouth when they sneeze or cough. It is highly recommended to use a tissue or the crook of the elbow. Tissues must be immediately disposed of.
  • Use a separate bathroom from others, where possible.

An unwell person living alone must self-isolate for 14 days. If they live with others and is the first to have symptoms, they must self-isolate for 14 days. Everyone else in their household must self-isolate for 14 days.

If anyone else in the household starts displaying symptoms, the person with the new symptoms must self-isolate for 7 days. This is regardless of where they are in the 14-day isolation period.

Full-time and part-time employees who are unable to work due to the fact they are sick with coronavirus can take paid sick leave. If an employee needs to look after a family member or a member of their household who is sick with coronavirus, they are entitled to take paid carer’s leave. “An employer cannot make an employee take sick or carer’s leave. However, under these circumstances, the employee is not entitled to be paid unless they use their paid leave entitlements.” – Fair Work Australia

An employee is required to give their employer reasonable evidence of Coronavirus illness if the employer asks for it. Simply taking a day off and claiming to have Coronavirus may not be sufficient.

You can get more advice or help by either:

I’ve been fired from my job due to Coronavirus fears

If you or someone you know has been dismissed from work due to the corona virus there is a good chance it is an unfair dismissal and the terminated employee is entitled to compensation. To learn more get in touch with the staff at Unfair Dismissals Australia and receive a free consultation on moving forward. There’s nothing to lose. Call 1800 333 666

Full-time and part-time employees are entitled to take paid sick leave or carers leave should they be ill with Coronavirus or be required to care for someone in their household who has the virus. If an employee takes sick leave and provides sufficient evidence of having the virus and an employer fires the employee there is a high chance of unfair dismissal and the employee will be entitled to compensation.

It is encouraged employees and employers to work together to find appropriate solutions that suit the needs of each individual in the workplace. This may include taking different types of leave, working from home, or taking employers and employees taking extra precautions in the workplace to keep it clean and safe.

Useful Links

  • Department of Health – Use this website to keep up to date with the latest information on the Coronavirus, including requirements and conditions required for isolation along with quarantine periods.
  • Services Australia – This website will keep you up to date with Coronavirus support.

Dismissal While Taking Leave

An Article from fairwork.gov.au

Did you know there are no laws to protect an employee from being fired/dismissed while taking leave?

“Ms Ryan’s termination payment was not paid to her until 25 February 2019, as it was paid in the normal pay run of the Pharmacy. Wilcox J stated the following in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at p 355:

“It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.”

[59] The Full Bench in Ayub at [19] stated that termination would take effect when communicated to the employee subject perhaps to the additional requirement that the amount in lieu of notice has actually been paid to the employee. [my emphasis]. I do not consider the Full Bench to mean that in every circumstance it would be a condition on the payment having been made to the employee on the same date as notified to render that date the termination date. I consider that there is appropriate discretion to consider when the payment was made, but that it need not always be made on that specific date.

[60] In these circumstances, the termination payment was made on the next payment date for the Pharmacy. In the circumstances, I do not consider that remarkable, and do not agree with Ms Ryan that it leads to a conclusion that her employment ended on 25 February 2019.

[61] In a Full Bench decision in 4 yearly review of modern awards – Payment of wages [2018] FWCFB 3566 at [119], a provisional view was held that the Pharmacy Industry Award 2010, together with 85 other modern awards would be amended to include the following model term:

“X. Payment on termination of employment

(a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination; and

(ii) all other amounts that are due to the employee under this award and the NES.

(b) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.

Note 1: Section 117(2) of the Act provides that an employer must not terminate an employee’s employment unless the employer has given the employee the required minimum period of notice or “has paid” to the employee payment instead of giving notice.

Note 2: Paragraph (b) allows the Commission to make an order delaying the requirement to make a payment under clause X. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

Note 3: State and Territory long service leave laws or long service leave entitlements under s.113 of the Act, may require an employer to pay an employee for accrued long service leave on the day on which the employee’s employment terminates or shortly after.”

[62] Later, in a Full Bench decision in 4 yearly review of modern awards – Payment of wages [2018] FWCFB 4735 at [6], the following was stated:

“[6] We do not propose to vary the Alpine Resorts Award 2010, the Pharmacy Industry Award 2010 or the Rail Industry Award 2010, at this time. A statement will be issued shortly regarding the next steps in respect of these awards. In respect of the remaining 83 modern awards that do not presently specify a time period within which termination payments are to be made we confirm our provisional view and will accordingly vary these modern awards to insert the model term.”

[63] Accordingly, the Pharmacy Industry Award 2010 remains silent on the issue of when a termination payment is required to be made.

[64] The surrounding circumstances of Ms Ryan being on personal leave on the day that she was notified of her dismissal could be said to be unfortunate, however it is not a relevant consideration in terms of whether Ms Ryan met the minimum employment period. I do not accept Ms Ryan’s submission that she could not have been dismissed while on personal leave. There is certainly a provision in the Act to render unlawful the termination of an employee due to a short term illness or injury; however that is not the consideration before the Commission at this time.”

Ryan v Stafford City Pharmacy Pty Ltd – [2019] FWC 3615 delivered 5 July 2019 per Hunt C

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