What now and what next for your workplace – Coronavirus COVID-19 2020 – A question on everyone’s mind right now. We have seen over the last few days more and more businesses in the retail sector closing up shop and standing down their employees. It is certainly a difficult time as business owners navigate the current situation and COVID-19.
When we think about a stand-down there are things that you must be cautious of as it is not as simple as advising your team “sorry but I have no choice I need to stand you down from work”
s524 of the Fair Work Act (‘Act’) allows for a stand-down BUT CAUTION stand-down provisions as set out in s524 of the Act does not give all employers an overall right to stand down under the COVOD-19 situation. The circumstances, as set out in the Act are when;
- employees can no longer be ‘usefully employed’,
directly because
- of a ‘stoppage of work’ (this term has a specific meaning).
We all know that businesses are deeply impacted and there has been a dramatic slowdown BUT as published in the material by the Fair Work Ombudsman a stand-down does not apply because ‘business is slow’ or if there is ‘not enough work’
As set out by Denise O’Reilly – O’Reilly Workplace Law in the newsletter received Saturday 28/3/2020 –
Whilst government directives may meet the requirement for a ‘stoppage of work’, not all current COVID19 scenarios do. The risks of getting it wrong are high, and include employees later seeking back paid wages for the whole period of the stand down, and or bringing claims including:
- constructive dismissal claims leading to dismissal related claims (such as unfair dismissal or general protections claims);
- employees notifying the Fair Work Commission (Commission) of a stand-down dispute;
- employees alleging the stand down amounted to unreasonable management action causing them a psychological injury in relation to which they bring a workers’ compensation claim,
- amongst other things.
Importantly, even if workers do not dispute the stand down when it happens, they are entitled to pursue action well into the future (up to 6 years), potentially compromising a business’ ability to recover from the economic downturn.
Before making any decisions in what you are going to do ask yourself these questions
- Can I keep the employees on in some way shape or form?
- Is there any useful work for them to do (future planning – see article)
- Try to look to the future – what will that be – what will 3-months look like?
- If you can conclude that stand-down is not an option then you may have to consider redundancy
For any support contact the team at Fresh HR Insights by using this link HERE
I have written a recent blog on useful work employees can do- read it HERE
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