Jo* got in touch with the Gold Coast Community Legal Centre office via telephone during the COVID-19 pandemic. Jo was looking for employment law advice regarding COVID-19 and being asked to stand down from her job.
Jo worked on the production line of a prefabrication factory. She is highly skilled and has worked for the same company for almost 10 years. The company is classified as a small business as it has less than 15 employees. Jo said she thought she had an Employment Contract, but it was short and poorly written. She couldn’t remember if it mentioned an Award but was sure it was not an Enterprise Bargaining Agreement.
Jo said that on or around 1 April 2020 when she returned from personal leave her boss handed her a Stand Down notice – without pay which was effective from the next pay cycle which started on 2 April 2020. She was told that there was a downturn in work and that should there be an upturn in work she could come back on a casual basis until ‘things got better’. Jo says her boss was refusing to pay any entitlements like holiday pay. Jo said that the company is still trading with other (less-skilled and lower-paid) employees working at the factory.
Jo wanted to know her legal options, so she spoke to one of the Centre’s Civil Law solicitors. The solicitor advised her that concerning Stand Down provisions, these can be included in employment contracts and as the Centre has not been able to look at Jo’s employment contract the following advice is premised on the basis that such a provision is not present in Jo’s employment contract. The Centre’s solicitor advised Jo to review her employment contract to confirm if this was the case.
Concerning COVID-19, section 524(1)(c) of the Fair Work Act gives the employer the ability to Stand Down an employee where there has been a ‘stoppage of work’ under circumstances where ‘the employer cannot reasonably be held responsible’. Gold Coast Community Legal Centre’s solicitor advised Jo that her employer was not a non-essential business under the then - Non-essential business, activity and undertaking Closure Direction No 2 of 27 March 2020. The Centre’s solicitor advised that a downturn in work does not at face value meet the requirements for Stand Down under the provisions of the Act, however, a significant downturn in work may be a reason for redundancy.
The solicitor told Jo she should look at the Fair Work Ombudsman website to locate her applicable Award as there are, under many Awards, specific employer obligations they have to follow to make someone redundant.
Concerning the validity of the Stand Down, in general, the Solicitor told Jo to contact the Fair Work Commission and apply under section 526 of the Fair Work Act to deal with this dispute by arbitration, or under section 595(2) mediation or conciliation.
If the Stand Down was regarded as valid - for the period of the Stand Down, Jo’s entitlements will not be affected and will accrue in the usual manner.
Concerning the Stand Down - if it is to be regarded as invalid - Jo may have:
- an unfair dismissal claim – constructive dismissal (in which instance she would be required to indicate a date from which the dismissal took effect – which would be 2 April 2020, giving a filing deadline of 21 days up to and including 23 April 2020;
- general protections claim (non-dismissal) – adverse action – work place right to work and earn her wages and legal entitlements – no filing deadline; and
- a claim for unpaid accrued entitlements – filing deadline 6 years.
Concerning not receiving any entitlements like holiday pay, Jo has a right to litigate for any accrued benefits due and owing to her in the Fair Work Division of the Federal Circuit Court, for claims under $20,000, Fair Work Division Small Claims, for Claims more than $20,000 (Jo may have significant long service leave accrued), it would be a general Application to the Fair Work Division of the Federal Circuit Court. Jo has six years to claim the date the debt became due.
The Centre’s solicitor finished the session by telling Jo that she had several options, but it is not the Centre’s policy to recommend any particular option as the elements and remedies are significantly different. The Centre’s solicitor advised it may be best to initially check if the Fair Work Commission would regard the Stand Down as legal as the outcome of that decision would help Jo to decide how to proceed.
As this is a complex area of law, the Centre’s solicitor recommended Jo get a second opinion from a specialist Community Legal Centre Employment Lawyer and provided the names of two contacts know to him from the Community Legal Centre Employment Law Network.
NOTE: All advice provided by our Centre’s solicitor is based on the latest information available from Commonwealth and Qld State Government; information from specialist Community Legal Centre’s including JobWatch and Caxton Legal and ongoing communications of the Community Legal Centre Employment Law Network.
*Not her real name.