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Can an employee refuse to take leave during COVID-19?

Shanni Zoeller ||

In response to the COVID-19 pandemic, the Federal Government implemented a JobKeeper Scheme (the Scheme) which has seen eligible employers given a wage subsidy (the JobKeeper payment) of $1,500 (gross) per fortnight which is then passed onto employees, ensuring the employee receives an income and remains employed. To accompany the Scheme, amendments were made to the Fair Work Act 2009 (Cth) giving employers who qualify for the Scheme the ability to issue “JobKeeper enabling directions”.

A “JobKeeper enabling direction” can be a direction to:

  • reduce an employees’ hours of work;
  • amend an employees’ duties;
  • change an employees’ location of work; and/or
  • change an employees’ usual days or times of work; and,
  • ask the employee to take annual leave (for example, taking twice as much leave at half pay).

These directions must be reasonable, necessary and given in circumstances where an employee cannot be usefully employed for their normal hours or duties for reasons attributable to COVID-19 or Government initiatives. The direction must be in writing after consultation with the employee/s and cannot take effect until at least three days after the issuance of the direction.

These directions will remain in operation until withdrawn or up to 28 September 2020, whichever is the earlier.

These directions have been a practical solution for many employers, with employees being receptive to such directions, especially knowing that the pandemic is temporary albeit unknown in duration. Earlier this month, the Fair Work Commission (FWC) heard the first case in the JobKeeper dispute jurisdiction, McCreedy v Village Roadshow [2020].

Ms McCreedy is employed by Village Roadshow (VR) in a part-time (30 hours per fortnight) position in the staff services department. Due to the Government’s public health orders, VR closed its theme parks on the Gold Coast and stood down employees, including Ms McCreedy.

VR issued Ms McCreedy with a JobKeeper enabling direction not to attend work. VR also wrote to Ms McCreedy (and all other staff) requesting that staff who had an annual leave balance of more than 2 weeks (for full-timers) or 4 days (for part-timers), to take 2.5 days (for full-timers) or 50% of his/her part-time hours per week as annual leave until the employee had 10 days, or the 27 September 2020 was reached.

Ms McCreedy did not consider VR’s request to take annual leave as reasonable and refused to take the leave despite having approximately 9 weeks (or 18.6 days) of annual leave accrued. Ms McCreedy submitted an “annual leave justification” stating reasons as to why she would not be taking her leave, which VR declined. Accordingly, she lodged a dispute with the FWC.

The FWC considered, amongst other things, Ms McCreedy’s personal circumstances, VR’s Leave Policy and its operational requirements and found that Ms McCreedy had unreasonably refused VR’s request which was aimed at “reducing VR’s annual leave liabilities during a time when it is unable to operate its business for what is now, approximately 7.5 weeks, and into the short-term future.” Further, the judge stated that Ms McCreedy’s “rejection of the request has been excessive, and disappointingly vitriolic, when regard is had to the fact that she has paid for some of the proposed holidays without first obtaining formal approval.” Accordingly, the FWC found that VR’s direction for Ms McCreedy to take one day of annual leave per week as reasonable.

Although not taken into consideration by the FWC, Ms McCreedy was receiving an additional $375 per week on an account of the JobKeeper payment.

It is clear that a practical and no-nonsense approach prevailed in this case. It is important to recognise that tough decisions are being made, every single day, by businesses and employees alike, in response to an everchanging COVID-19 environment. Fingers crossed that we can all get back to some form of normalcy sooner, rather than later.

If you require assistance or have any questions about your entitlements or the JobKeeper scheme, please do not hesitate to contact a member of Coleman Greig’s Employment Law team, who would be more than happy to assist you today.

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