01 March 2021

The COVID casual dilemma – when enough is enough

JobKeeper has been a lifesaver for many people and companies. 

However, by the end of 2020, as COVID-19 restrictions started to ease and work increased, a different issue emerged – JobKeeper employees refusing to attend work.

A recent decision of the Fair Work Commission provides some reassurance and guidance to employers in this situation, upholding dismissal of a casual employee receiving JobKeeper payments throughout most of 2020 but who did not make himself available to work.

Background

Mr Howard was employed by Pinnacle People, a labour hire company. He had worked a regular and systematic pattern of engagement in various hospitality positions up until 7 March 2020, just as the COVID-19 restrictions commenced.

Once the JobKeeper scheme commenced, Pinnacle People registered Mr Howard as an eligible employee. 

In what is now a familiar story for some employers, Mr Howard then refused to accept any shifts offered to him after 7 March 2020. 

Mr Howard was offered a total of 58 separate assignments, including both single and multi-day engagements across Melbourne and in different hospitality settings, which he did not work. Pinnacle People attempted to contact Mr Howard approximately 30 times, by email and phone, during this time, which were ignored by him.

Crucially, Mr Howard never actually reviewed the details of the shifts offered to him. IT records indicated that he merely marked himself as unavailable for just over a quarter of the offered shifts and ignored the remainder. He therefore had no idea where the shifts were located or the nature of the work that was being offered to him.

Mr Howard was eventually dismissed on 11 September 2020. He then had the audacity to make an unfair dismissal application in the Fair Work Commission, unconvincingly claiming he had had wanted to work but believed the shifts offered to him would be in COVID-19 risk environments. He also claimed that he did not receive a show cause email from Pinnacle People.

‘Unwillingness to be bound by his contract’

In a win for common sense, Mr Howard’s unfair dismissal application was dismissed.

The Commission held that Mr Howard’s claim that he wanted to work was ‘disingenuous’. It was found that by making himself unavailable for shifts or ignoring them without ever considering the details of the shifts themselves, Mr Howard had demonstrated his ‘intention to decline to accept any shifts offered regardless of the nature of the role, location, or venue’. Regardless of his availability, without knowing the details of the assignment, Mr Howard simply could not assess whether or not there were any additional COVID-19 concerns.

As a result, the only possibility was that Mr Howard ‘did not wish to work during the period for reasons he failed to properly communicate to his employer.’ The Commission echoed a common public sentiment when he went on to state that there was ‘little to no incentive for [Mr Howard] to work any shifts given that he was in receipt of JobKeeper payments that were substantially in excess of his pre-COVID earnings.’

Casuals be warned!

This decision should serve as a warning for those casuals who are receiving JobKeeper payments and continue to decline shifts for no valid reason. 

This is not to say that there aren’t casuals who genuinely are not available for work or who have valid concerns regarding exposure to COVID-19. However, the Commission appears to agree that enough is enough when it comes to ‘zombie casuals’ who are (technically) employed but continue to not be available for work for other reasons.

If you’re having issues wrangling your zombie employees or if you need some assistance with any other employment matter, please feel free to contact us.

Authors: Jade Bond & Darren Gardner