JobKeeper casual fairly dismissed for lack of “genuine interest” to work

The Fair Work Commission (FWC) has endorsed the sacking of a JobKeeper recipient, who had been employed on a casual basis, after he refused to accept any shifts over an extended period while he was in receipt of wage subsidy payments which increased his typical weekly earnings from $275 to $750.

The on-hire food & beverage attendant was terminated on 11 September 2020, by which time the employer’s records identified he had failed to accept any shifts since he had last worked on 7 March 2020, despite being offered “58 single or multi-day bookings” in the period. In failing to perform a single shift whilst in receipt of the JobKeeper subsidy, the attendant declined or made himself unavailable for 25.79% of the shifts offered and completely ignored the balance. The attendant also failed to respond to email correspondence issued by the employer on 30 April; 19 June and 22 July which, in every instance, reinforced that employees receiving the JobKeeper subsidy must be ready, willing and able to work; must readily accept shifts offered; would be required to provide reasons for being unavailable for offered shifts and, identified that declining more than three consecutive shifts (without suitable explanation) would jeopardise ongoing employment.  

On 27 August, the attendant finally replied to a show cause letter, issued the day prior, by pleading ignorance as to the employer’s requirements and expectations and claiming not to have received any of their earlier correspondence. Despite the employer being able to verify the attendant had indeed received and opened all of their previous email correspondence, except for the email of 22 July, the attendant’s employment was not immediately terminated and instead, he continued to be offered shifts via the employer’s specialised app. The attendant was terminated on 11 September 2020 when it was established he failed to accept any shifts or otherwise contact his employer, despite the employer’s response of 27 August reiterating expectations for staff to readily accept shifts and asking the attendant to make contact if he wished to continue his employment.

When the attendant sent an email of 21 September seeking to challenge the dismissal, again insisting he had not been made aware of the availability of any shifts, the employer made attempts to speak with the attendant but he failed to reply to calls or emails. The employer later claimed this reflected the typical experience of attempting to engage with the worker, noting various staff had reached out to the attendant by phone – over 30 times during the period of his non-engagement – but he had not responded to any of the calls or messages left.

Before the Commission, the attendant sought to argue that the only shifts offered to him during Melbourne’s lockdown period would have been in “Covid (sic) risk environments”, but the employer’s evidence demonstrated only 25% of offered shifts were based at COVID-risk venues/sites and the attendant would not have been expected to accept those shifts, had he advanced any evidence of having a valid reason, such as being “immunosuppressed” or having a medical condition.

Whilst stopping short of conceding that the size of the JobKeeper subsidy had created a disincentive for him to work, the attendant was not able to challenge the validity of the employer’s evidence, which confirmed he had not accepted a single shift in six months; he had received and opened all but one email in respect of his employer’s correspondence during the same period; he was aware of all shifts offered via the employer’s dedicated ‘PinnBook’ app but, in respect of all shift offers which were ignored by the attendant (as opposed to those he actively declined), he had failed to progress to the secondary step within the app to establish at which venue/location those shifts had been offered.

In upholding the dismissal of the employee, Deputy President Masson described the attendant’s purported desire to work during March to September 2020 as “disingenuous”, noting:

“The fact that he either rejected, declared himself unavailable or simply ignored the offered shifts at the first stage of offer, says much as to his motivation, or lack of, to engage with [the employer] and meet his obligations to accept and undertake work during the period in which his ongoing employment was directly subsidized by the federal government and by extension Australian taxpayers.”

The Deputy President went on to observe that, although the attendant was “unwilling to concede on this point”, “there was little to no incentive for [the attendant] to work any shifts given that he was in receipt of JobKeeper payments that were substantially in excess of his pre-Covid (sic) earnings.”

The Deputy President determined that, in declining or ignoring all offers of work in the period 7 March to 11 September 2020, the attendant demonstrated an “unwillingness to be bound by his contract of employment as a casual employee” which provided his employer a valid reason for dismissal. In addition, Deputy President Masson accepted the attendant had been notified of the reason for his dismissal and was afforded opportunity to respond, lending weight to a finding the termination was not unfair.

In reference to the attendant’s assertions that the COVID lockdown period “were not normal times”, the Deputy President agreed this was correct, but he further observed that the attendant’s behaviour disclosed “an intention to decline to accept any shifts offered regardless of the nature of the role, location, or venue”.

Howard v Pinnacle People [2020] FWC 6975 (30 December 2020)

Elsewhere, just prior to Christmas, Deputy President Asbury of the FWC awarded a gym manager, whose redundancy was occasioned in March 2020 following the first pandemic-induced shutdown in Queensland, $21,000 in compensation, finding that retaining him in employment would have been “entirely consistent” with the objectives of the JobKeeper scheme.  

Whilst Deputy President Asbury acknowledged employers were not obligated to keep workers on the payroll just because of the availability of the JobKeeper scheme, she ruled the manager’s redundancy was not genuine and, in addition, noted the manner in which it was effected and the timing of the decision increased the “harshness” of the outcome, “in circumstances where there was no cogent reason for [the manager] to have been dismissed”.

Cooper v The Trustee for Cleveland 24/7 Unit Trust [2020] FWC 6715 (15 December 2020)