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April 3, 2020
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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.

March 26, 2020
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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).

Government information about coronavirus

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 the Commonwealth or a State or Territory Government or officer makes an order, determination or direction 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).

This could occur, for example, where an enforceable government direction closes down a particular work site (and there is no way for employees to work remotely), or where an enforceable government direction prevents a particular employee from working (e.g. because they are required to self-isolate). In these instances, the employer is not required to pay the employee (unless the employee uses paid leave entitlements).

The situation is changing rapidly, and most States and Territories have now put in place enforceable government directions to prohibit mass gatherings or events, and some are enforcing self-isolation requirements for travellers and other people exposed to coronavirus.

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. For example, the Victorian Deputy Chief Health Officer has issued an enforceable government direction that certain non-essential services must shut down between 12pm on 23 March 2020 and 12am on 13 April 2020. The New South Wales Government has issued a similar enforceable government direction.

As these enforceable government directions have been issued, some affected businesses are likely to be able to stand down employees, if they cannot usefully be employed. See When can employees be stood down without pay?

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Frequently asked questions: Workplace obligations and entitlements

We encourage employees and employers to work together to find appropriate solutions that suit the needs of individual workplaces and staff. 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, please contact us on 13 13 94 and select the prompt for the coronavirus hotline.

On this page:

When can employers direct employees to stay away from their usual workplace under workplace health and safety laws?

Safe Work Australia  has information about when an employer can direct employees to stay away from their usual workplace under the model workplace health and safety laws.

More information:

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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.
constructive dismissals australia
March 24, 2020
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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.

March 19, 2020
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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.
January 5, 2020
by

Articles About Unfair Dismissals Australia

https://achievereducation.instructure.com/eportfolios/40/Home/Redundancy_and_Unfair_Dismissal

https://study.mdanderson.org/eportfolios/2570/Home/Unfair_Dismissal_and_Small_Business_in_Australia

https://american-heritage.instructure.com/eportfolios/55881/Home/Unfair_Dismissal_in_Australia__Know_Your_Rights_and_Learn_How_to_Get_Help_to_Claim_Them

https://canvas.elsevier.com/eportfolios/7772/Home/Unfair_Dismissal_under_the_Fair_Work_Act

https://utah.instructure.com/eportfolios/31600/Home/What_Constitutes_Unfair_Dismissal_in_Australia

September 17, 2019
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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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