In the unique case of Pamela Green v The Trustee for Vamos International Discretionary T/A Vamos Pty Ltd, a casual employee was terminated after refusing to work additional hours (to make up for a week of illness) in order to ‘earn’ her JobKeeper payments for the week. The employer told her she was no longer eligible for JobKeeper because she took leave, which is patently untrue.
The employee was found to have been unfairly dismissed as there was no valid reason for terminating her employment (there were no issues with the employee’s availability or a shortage of work as the employer tried to claim).
The employee was entitled to receive JobKeeper even though she did not work that week as she was absent on unpaid sick leave. The employer was ordered to pay $14,550.
Lessons for employers:
- Make sure you have a valid reason before you terminate an employee, this is the first hurdle you must pass in an unfair dismissal claim.
- Ensure that you do not terminate an employee for discriminatory reasons or risk an adverse action claim. Although this was an unfair dismissal, the termination clearly resulted from the employee choosing to take the unpaid sick leave giving her rights to pursue a discrimination claim.
- Employees do not have a right to refuse to work to receive JobKeeper payments so if there is no reasonable excuse for them to be absent from work, you are still within your rights to issue a lawful and reasonable direction for them to work.
Written by Nina Hoang
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