This is a question that we are being asked a lot by employers who are currently performing ‘essential’ services but meeting resistance from staff that would prefer not to leave their bubble. No doubt this case study will sound familiar to some of you.
I own a retail store and although I am not allowed to open my shop, I am allowed to process online orders for contactless delivery. Since the Alert Level 4 lockdown was announced (and the restrictions imposed by the lockdown), I have since seen a rapid decline in my overall business revenue. However, my outgoings remain substantially the same and whilst I have taken measures to reduce those outgoings by negotiating a delayed payment structure with manufacturers, and agreeing a discounted rent for my commercial lease, I still need to pay staff even though the majority of my workforce remain unable to work.
I have successfully applied for the wage subsidy payment and feel reassured for the next 12 x weeks that I can pay my full-timer’s at least the subsidy of $585.50 a week (gross). Yet, I have encountered an unforeseen problem – some of my staff just don’t want to work and I need them to help with the online orders and dispatching? When I informed staff that we were authorised to process online orders, I thought they’d be thrilled to return to work. Whilst most were happy at the prospect, there are some that would prefer to stay in the bubble (or stay in bed) and not attend the workplace.
My question is – can staff reasonably refuse to return to work and still expect to be paid the wage subsidy? It does seem unfair that staff who refuse to work can still receive the wage subsidy, surely this can’t be right, can it? How should I approach the situation and what’s the answer?
The answer is simple – no work, no pay!
Ok, maybe not that simple – but you should first clarify whether there is an underlying reason which prevents them from returning to work (e.g. are they immunocompromised which might make them vulnerable to contracting COVID-19?)
If so, then their refusal to work is reasonable.
If not, have you put measures in place to eliminate or minimise the risk of contracting COVID-19 in the workplace? For example, creating a roster with only a limited amount of staff working together at one time, social distancing, clear workspaces, offering PPE (protective gear such as masks, gloves), having a clear health/safety policy or code of conduct. If you have put these measures in place (and notified staff), then any refusal to work could be deemed unreasonable and does not obligate you to pay that staff member the wage subsidy.
It is important for both parties to remember that although these are unprecedented times, the employment relationship is still on foot and the duty to act in good faith still applies. With that in mind, staff need to be ready, willing and able to work unless there is a justifiable reason for them to refuse. So, if there is an unreasonable refusal to work then those that refuse cannot reasonably expect to receive the wage subsidy or any form of remuneration. Staff may also be exposed to disciplinary action by ‘failing to comply with a reasonable and lawful’ instruction.
If you resonant with the case study and find yourself in a similar situation, please do not hesitate to get in touch for more specific advice.