Reduced hours and WFH have become the norm
Reduced hours and working from home have become mainstream practices, but employers must nevertheless act cautiously when standing down employees. In a recent decision, the Commission found that, despite the negative impacts caused by COVID-19 restrictions, an applicant had been wrongfully stood down for over four months.
Following COVID-19 restrictions imposed during the last week of March 2020, the respondent ordered employees to work from home. With school closures also occurring at this time, the applicant and respondent mutually agreed that it was convenient for the applicant not to work, as she took on additional caring responsibilities for her child. Upon the reopening of schools, the applicant made repeated attempts to contact the respondent to clarify her return to work. She received no answer to this until 10 September – over five months after she was first stood down.
In a letter on 10 September, the respondent stated that the applicant had chosen not to return to work and had requested to take leave without pay. He asserted that, during correspondence with the applicant, he never used the words ‘stand down’. In a separate letter dated the same day, the respondent terminated the applicant’s employment by reason of redundancy.
The Commission accepted that during the month of April, the applicant’s absence was by mutual agreement. However, given the applicant’s repeated requests to return to work between May and September, the Commission rejected the respondent’s submission that the applicant had elected to take leave without pay. The Commission considered the Fair Work Act 2009 s 524, which details the employer’s rights to stand down employees in certain circumstances, including a stoppage of work.
The Commission acknowledged the challenging circumstances initially brought on by the unprecedented consequences of COVID-19 restrictions but found the respondent could have clarified its legal obligations to the applicant as the weeks went by. Further, the Commission noted another employee in a similar role to the applicant, who had continued work for the five months during which the applicant had not been allowed to. The Commission found that, by its actions, the respondent had treated the applicant unfairly. Compensation of $7,175.16 was ordered to the applicant.
Key Takeaways for HR:
- Negative impacts of COVID-19 do not excuse employers of their legal obligations to employees and may not constitute a fair stand down
- Although stand downs may be mutually beneficial for both employer and employee for some time, this time cannot be extended further than is fair to the employee
