A recent case heard before the Fair Work Commission has highlighted the need for employers to ensure that procedural fairness is applied prior to standing down an employee, even where the stand down has occurred due to factors outside of the employers’ control. Although in this particular case, it was held that the stand down itself was legal under the Fair Work Act 2009, the employer was deemed to have followed an unfair process when selecting which employees would continue to be rostered for available shifts and those who would be stood down without pay.
This finding demonstrates that in circumstances where an organisation can continue to perform and provide some work for employees during periods such as a Government directed lockdown, there is an obligation for employers to ensure that each of their employees be considered equally if they are capable of completing the available work. In this case, an employer operating in the aviation industry was found to have acted unfairly when it stood down an employee despite continuing to roster his colleagues who held higher skill levels for available shifts.
The employer’s core business is to provide customer services operations and perform arrivals duties for multiple airlines. The work performed requires that employees be trained in the operating system of an airline before they can perform work for them. Such training is not required for employees to perform arrival duties. Between 30 March and 3 May 2021, a standdown was implemented by the employer, however they were able to continue operating at minimum capacity. A number of employees (including the applicant) who were trained to service one airline were stood down, while the employer continued to roster on other workers who were trained to service multiple airlines.
In addition to having only been trained to work on one airline, the applicant had a flexible work arrangement in place which restricted his rostered hours, and he was unable to perform his additional duties working in the mishandled luggage department at the time due to suffering from a wrist injury. Further training on other airlines had been offered by the employer to the applicant during previous periods of stand down, however the employee had declined such opportunities despite the airline that he had been trained to work for having had a very limited number of flights.
During the stand down period in question, the employer rostered those employees who had been trained to work for those airlines that were operational. Additional arrival duties were then allocated to these same employees where their rostered work time did not equate to at least 19 hours. In applying this process, the employer elected to prioritise those employees who had the capacity to work across multiple airlines over those who were considered less qualified.
Although the retention and use of trained qualified staff was acknowledged by the Fair Work Commission as making sense from an operational perspective, the Commissioner did note that the Fair Work Act 2009 does require employers to act fairly and in a manner that does not place undue burden on its employees. Given this requirement, the Commission determined that the decision made by the employer in this instance to not provide any rostered work to lesser skilled employees did pose an unfair burden on the applicant. It was further determined that the employer’s actions in rostering only skilled workers was to the detriment of those who were less skilled. It was held that the applicant could have continued to have performed approximately 20 per cent of his ordinary hours during this period and as a result, $547.20 in compensation was awarded.
In making its finding, the Commissioner relied on a previous case from 2020 in which an employer had attempted to reduce the impact of COVID-19 on its business by standing down one employee but retaining the rest. It was held in this case that the fair approach would have been for the employer to distribute the workload across multiple employees to enable them each to work in a reduced capacity.
These cases highlight that there is a need for employers to assess the fairness of any measures implemented during any period where stand downs are required or in circumstances where a reduction of work is experienced by an employer that is outside their control, such as during the COVID pandemic, and that it would reasonably be expected that any available work would be shared between employees so far as is possible.
In circumstances where there is a reduction in the amount of work that is available to be performed during the COVID-19 pandemic, it is important that consideration be given as to whether:
- The nature of the available work is something only certain employees can do
- Certain employees are being rostered on more frequently than others and if so, why this is occurring
Unless there is a genuine and valid reason for not rostering an employee on to work during such periods where there is some work available to be performed, all employees who can complete the duties should be considered equally.
So far as is practicable, employers should also be transparent with staff who have been stood down or who have agreed to reduce their hours, and it should be communicated to them why certain employees are continuing to be rostered to work (such as required skill sets, and the nature of the work being performed).
We would also like to remind employers that where, due to circumstances outside of their control, they are unable to fully engage an employee to perform 100% of their role, it is important that prior to any reduction or variation of hours occurring, consultation with impacted employees occur to reach a mutual agreement to temporarily modify their hours. Any consideration of a variation of hours must be undertaken in a reasonable manner and consideration should be given to reductions for an entire team rather than one individual employee.
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