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Perspective

Employees forced to work additional hours to ‘earn’ JobKeeper payments

Businesses forcing employees to work additional hours (in excess of their contracted hours) to ‘earn’ the full JobKeeper payment rate are doing so illegally, and are in breach of the minimum payment guarantee, under the JobKeeper Scheme.

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:

  1. 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.
  2. 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.
  3. 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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Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career.

Paul Evans

Managing Director, Toro Digital

Psychological hazards of e-working during the pandemic is a relevant factor. The Australian Psychological Society identified these hazards as conflicts between work and family, workload and over-working, future uncertainty and isolation/loneliness.

Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career. Participants noted their productivity consequently declined by at least one hour a day for 62% and at least two hours for 32%.

Unsurprisingly, there has been a marked rise in mental health related prescriptions since March 2020.

These risks can be mitigated by undertaking appropriate risk analysis for each employee, ensuring controls are instituted that mitigate those risks, ensuring regular communication between management and employees around individual circumstances, setting clear expectations including around joint goals and objectives, scheduling regular informal team gatherings, and ensuring access to support and resources.

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