A casual employee had been working as a machinist for approximately 23 years before being dismissed on 6 July 2020. The casual employee had been working 38 hours per week, however, when JobKeeper started the hours were reduced to 29 to match the Federal Government payment of $750.

From 25 May to 28 May 2020, the employee took a period of sick leave and provided a medical certificate. Upon returning to work, the employee was told to work extra hours unpaid to make up for the time taken off that was paid by JobKeeper.

After contacting both the Australian Taxation Officer (ATO) and the Fair Work Ombudsman (FWO) the employee learnt the hours did not have to be repaid. Later, the employee requested to take annual leave from 22 to 26 June 2020, which was approved.

The Head of Production, and HR Manager, however, requested the hours that needed to be ‘repaid’ be dealt with before the leave was taken. When the employee told the HR Manager of her advice from the ATO and the FWO, the HR Manager allegedly told the employee if the hours weren’t repaid, her employment could be “eliminated” and she would no longer be nominated for JobKeeper.

When the employee returned from annual leave, her manager requested she work additional hours to cover her sick leave by working an extra 30 minutes unpaid each day. The employee disputed this, and a short time later was called to a room where the Head of Production informed her that while she was on leave, he and the HR Manager had been discussing the matter and decided she was no longer eligible for JobKeeper.

After the meeting, the employee’s manager advised her the Head of Production wanted her gone immediately. The employee left and requested a separation certificate. The separation certificate indicated the reason was a “shortage of work”.

A witness who sat next to the employee confirmed the employee’s version of events.

The Head of Production claimed he told the employee he could not offer her shifts based on her availability and he would not be continuing to nominate her for JobKeeper. He also said - based on his understanding - that once an employee had been taken off JobKeeper for a week, they could not be put back on.

The decision

The Fair Work Commission (the “Commission”) considered the reason for the employee’s termination and deemed it unclear. The Head of Production maintained the dismissal was a result of the employee’s availability, whereas the separation certificate indicated it was because of a shortage of work.

The Commission determined the employee was not dismissed for a reason related to her capacity or conduct and considered the process adopted by the business was insufficient.

The Commission regarded the employee as highly skilled in her field of work and considered it was likely she would secure employment in the near future. The Commission ordered the employer to pay compensation of $14,550 equating to 21 weeks’ pay.

Learning for businesses

This case highlights the importance of seeking advice and clarification of best practice when it comes to disciplinary processes and termination, as it is heavily driven by legislative requirements.

It is vital that businesses know what applies to their employees and how it affects daily business activities. Following process can help defend a claim and safeguard the reputation of the business. All businesses regardless of size must have a valid reason and follow a fair process.

How we can help

If you are contemplating dismissing an employee, our experienced consultants can lead you through correct procedures or assist your business to develop long-term strategies that support the business through a termination, resignation, or redundancy.

The Victorian Chamber Consultants can also represent businesses in addressing potential and real claims as well as draft appropriate documentation, from response forms to submissions and witness statements.

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

• Award interpretation, classification and minimum entitlements
• Disciplinary processes, performance management and termination
• Personal illness and injury
• Parental leave and flexible working arrangements
• Redundancy
• Occupational Health and Safety and WorkCover

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

[2020] FWC 5909