The employees were invited to nominate either annual or personal leave to cover their absences
Just weeks after the establishment of paid pandemic leave, an aged care facility neglected to pay employees who were made to stay home after contact with a suspected COVID-19 case. On 2 September 2020, a resident of an Ashfield aged care facility was identified as a close contact of COVID-19, after being treated by a doctor who was exposed to the virus.
The resident underwent a Polymerase Chain Reaction Test and was isolated. Nine employees of the Facility had been in direct contact with the resident. Upon recommendations made by the Public Health Unit, the Facility advised these nine employees that they were unable to attend the workplace. The impacted employees did not attend work between 8 and 12 September, reinstated after the resident had returned three negative test results.
Upon their return, the employees were invited to nominate either annual or personal leave to cover their absences. Union Industrial Officer Luke Maroney indicated to the Facility that, given the organisation’s direction, they must pay their employees their regular earning for that period. Maroney asserted that, by directing the employees not to work, the Facility had waived the usual requirement that work is performed in exchange for wages. Further, he submitted that nothing in the Public Health Unit’s recommendations authorised or required the Facility’s actions.
On behalf of the Facility, the respondent submitted that, given the pandemic’s disproportionate impact on aged care facilities (who account for almost 75% of Australia’s COVID-19 deaths), it would have been reckless for the Facility to ignore the Public Health Unit’s directions.
The Commission agreed with the respondent’s submission but found that the question of who bore the economic consequences was still open. The Commission considered the recent establishment of paid pandemic leave in the Aged Care Award, which is detailed here.
Ultimately, the Commission found that the nine employees ‘should not be worse off’ than those employees covered by the Aged Care Award. Further, it was satisfied that the Facility required the employees to stay home as a precautionary measure, rather than due to government guidance. The Commission ordered that the Facility repay the employee wages during the relevant time.
Key Takeaways for HR:
- The cost of paid pandemic leave in the aged care sector was found to fall on the employer
- Consequently, these employers must not deduct wages when directing employees to stay home as a precautionary measure for COVID-19
