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Ian Howard v Pinnacle
 FWC 6975
Last year, a common issue for many employers concerned those casual employees, in receipt of JobKeeper, who refused to work.
With certain exclusions, the JobKeeper rules require payments to be made to employees who had worked for their employers for more than 12 months. This included ‘long term casual employees’.
A ‘long term casual employee’ is generally a casual employee who has worked for the employer for a period of more than 12 months and had been employed on a regular and systematic basis.
In most circumstances, casual employees can accept or reject work as suits since there is no ongoing expectation of work. The exception to this would be where a casual commits to taking on certain tasks or working particular hours. Where a casual employee does not work, such an employee is not paid. However, with the introduction of the JobKeeper wage subsidy, employers were required to pay their employees the full amount of the subsidy, regardless of how much time was worked.
Importantly, long term casual employees also have access to the unfair dismissal jurisdiction, such that actions taken by employers to terminate a casual employee can lead to unfair dismissal claims.
In this case, Pinnacle People (Pinnacle) employed Ian Howard (Mr Howard), as a casual food and beverage attendant on labour hire arrangements to various clients of Pinnacle.
When the JobKeeper scheme was announced, Pinnacle wrote to all of its employees asking them to confirm whether they would participate in the scheme. In so doing, it made clear that it was expected that all employees would accept shifts when offered unless there was a reasonable excuse for not doing so.
Prior to JobKeeper, Mr Howard’s average income from Pinnacle was $275 per week. This increased to $750 a week as soon as the JobKeeper scheme was introduced. However, at the same time, Mr Howard started either refusing shifts or not responding to requests to accept them.
Pinnacle wrote to Mr Howard and asked him to provide reasons as to why he had not accepted any shifts. In response, Mr Howard indicated that he understood that the usual venues at which he worked were closed due to the Victorian COVID-19 lockdown. By this stage, there were 23 shift offers that he had failed to accept.
Pinnacle responded that there was a general expectation that he would accept shifts and that shifts were not limited to particular venues. Pinnacle asked Mr Howard to confirm that he wished to continue to work with the company.
Finally, after Mr Howard had failed to accept 58 shifts, Pinnacle wrote to Mr Howard stating that his conduct appeared to show that he no longer wished to be an employee with Pinnacle and thereby terminated his employment.
Mr Howard claimed unfair dismissal, alleging that it was unsafe for him to work during the period due to COVID-19.
The FWC noted that despite being given the opportunity to give reasons as to why he did not wish to work, he never did so and his reliance on this excuse during the unfair dismissal proceedings was disingenuous, commenting that there was no evidence of any interest on his part of performing any work at all in circumstances where he was, due to the JobKeeper scheme, receiving a large pay rise.
The FWC found that there was a valid reason for dismissal in that his failure to accept 58 shifts had demonstrated an unwillingness to be bound by his contract of employment, even though he was a casual and further found he had been given ample opportunity to explain himself by his employer and to give reasons as to why his employment with Pinnacle should continue. On this basis, the FWC stated that the dismissal was not harsh, unjust or unreasonable.
The decision highlights that employers in such situations are not without options. It gives an insight into the FWC’s thinking with respect to a difficult conundrum that has been faced by employers because of the operation of the JobKeeper rules.
Care needs to be taken however in situations where there may be good reason for refusing shifts and advice should be sought on all potential risks before contemplating disciplinary action.
For further information / assistance regarding next steps and the issues raised in this article, please contact the authors, Tim McDonald, Partner, Stephen Marriott, Special Counsel or your usual contact at Moray & Agnew.