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Can staff refuse to work while on JobKeeper?

During the JobKeeper period an employee cannot unreasonably refuse work. JobKeeper is a business support package and not an automatic payment to Employees. Your staff still have obligations under their employment contracts/agreements to perform work, so long as it is safe to do so, and an entitlement to JobKeeper does not relieve employees of these obligations.

Therefore if they are refusing a shift some key points to follow:

  • Make clear that this is a reasonable request as per their employment conditions and in line with JobKeeper requirements.

  • Detail how the workplace is safe and the precautions are in place for them to return to work.

  • If they refuse ask the reason why? And get that information from the employee

Depending on their response will depend on what happens next….

  1. They accept the shift and realise they have an obligation and we are all in this together.

  2. They have a genuine reason and you roster them on an alternative shift or the following roster.

  3. Their reason is not valid and you remind them of their obligations and ask them to attend, if they refuse then you can issue a warning for non attendance.

If an employee refuses without a valid reason, depending on the circumstances consider disciplinary processes against the employee for refusing to follow a lawful and reasonable direction. Which when continued or clear misconduct occurs you can then terminate.

You need to continue to pay the job keeper until they are terminated though ☹

Our recommendation is:

Employers should consider taking a compassionate approach in these difficult times where employees may be concerned for their safety or have other child or carer commitments which may limit their ability to return to work. For these reasons, getting their explanation to why they cannot attend work prior to commencing any disciplinary process is key!

We suggest that employers openly discuss and consider any explanation an employee may offer as to why they are unable to work, and offer any possible alternatives, such as different shifts or other work that the employee is able to perform safely.

A fair process should be followed in all disciplinary processes including making sure that the employee is clear on the direction being issued and is aware that the consequences of not coming to work could be discipline. A failure to follow a lawful and reasonable direction can amount to misconduct (pending your award or agreement – get advice) and justify the termination of the employee’s employment.

Where an employee is terminated due to misconduct, they will no longer be eligible for the JobKeeper payments.

Also for those wanting to know from a formal sense an employer can also raise a Fair Work Commission dispute regarding the JobKeeper Enabling Directions by lodgeing a Form F13A.

Hope this brings some clarity.

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