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Casual entitled to JobKeeper while off sick

The employer failed to properly inform itself about how JobKeeper operated.
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Casual entitled to JobKeeper while off sick

Casual entitled to JobKeeper while off sick

16 November 2020

By Mike Toten

A dispute over whether a casual employee could stay on JobKeeper after being off work for health reasons has been resolved in the employee’s favour.

The employer deregistered her from JobKeeper and dismissed her for refusing to make up the work hours she missed. This was found to be unfair, both because of the manner in which it was handled plus the fact that employer gave “shortage of work” as its reason for terminating her employment, after demanding she work extra hours to make up for the ones she had missed while absent.


Facts of case

The casual employee was a machinist who had worked for the organisation for 23 years. The employer registered for JobKeeper and she received JobKeeper payments. But when she took four days off work due to illness, the employer demanded that she “repay” the hours for that week covered by JobKeeper by working extra hours upon returning. As a casual employee, she did not receive paid sick leave.

At the time she worked 29 hours per week, the number which equated to the JobKeeper payment of $750 per week.

The employee obtained advice from both the Tax Office and Fair Work Ombudsman that she did not have to repay the employer, so refused to do so. She also arranged to take a further two weeks’ unpaid leave, which the employer approved. An HR consultant retained by the employer responded with a threat that she could be “eliminated” if she did not repay the money, and accused her of taking “free money”. [Note: the employer disputed whether those words were used.]

The employee took the two weeks’ leave, but upon returning to work was again told to make up the “lost” hours, and again refused. Her supervisor had suggested she work half an hour extra each day until the 29 hours were made up. The employer responded by telling her at a meeting she would no longer be eligible for JobKeeper. Shortly after that, she was told that the production manager wanted her “gone immediately”.

She received a separation certificate that gave “shortage of work” as its reason for issue. However, she was also being asked to stay back and make up the hours she had missed through absence in order to “justify” her JobKeeper payments, which indicated no shortage of work.

Despite issuing the separation certificate (after the employee requested it), the employer claimed that it did not terminate her employment, but it took her off JobKeeper and stood her down. However, the latter was inconsistent with the “gone immediately” directive, which the employer did not dispute had occurred.

The employer also claimed it was “still learning about” how JobKeeper operated at the time. However, it wrongly concluded that the employee had become ineligible for JobKeeper because of her absence from work


Decision

The Fair Work Commission found that the employee was unfairly dismissed. It said that there was no impediment to a casual employee receiving JobKeeper payments while absent sick, nor any evidence that an employee was disqualified from JobKeeper assistance if he/she took leave to visit a sick family member.

Reinstatement was impracticable in this case due to the employment relationship breaking down, so the FWC awarded compensation of $14,550.

The bottom line: The main reason that the employer lost this case appears to be that it failed to properly inform itself about how JobKeeper operated in relation to casual employees being absent from work.

The FWC pointed out that there was no impediment to a casual employee receiving JobKeeper payments while absent sick, nor any evidence that an employee was disqualified from JobKeeper assistance if he/she took unpaid leave.

The employer also erred by stating “shortage of work” as the reason for separation, when it was clearly not the case.

As JobKeeper only commenced in April 2020 and has been amended since then, many cases involving it may be “test cases” before the FWC (ie no precedent for handling the issue in dispute). Therefore, employers are advised to seek expert advice before making decisions to deregister employees from JobKeeper or terminate their employment.


Read the judgment

Green v The Trustee for Vamos International Discretionary t/a Vamos Pty Ltd [2020] FWC 5909, 6 November 2020

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