These times employees face are unprecedented in workplace relations. How each case is handled will depend on all the circumstances of a workplace dispute or any other action taken by Employers to an employee issue. Nonetheless, workers have rights and the various Tribunals that determine matters have an obligation to look at community expectations and not doggedly follow the rules of evidence and black & white law.
The Tribunals are not Courts, nor should they be, as their history is framed in either human rights or conciliation and arbitration between employer and employees and/or their representatives. The scales of justice and natural justice principles have never been so important for the world of work.
At Susan Moriarty and Associates we understand this and while we are a law firm, we commit to these principles and what the ‘common person’ or ‘person in the street test’ would think of employer behaviour. There are laws to follow but common sense should prevail.
Here are some tips and some challenges any employee might face during the Corona Virus response and our united efforts to curtail the dangerous impact this virus has on our populace and our health system.
1. Do I have to attend work if I am frightened of getting the virus or passing the virus on to another vulnerable person with whom I have regular contact?
Employers have an obligation under Work Health and Safety Laws to ensure the health of safety of their workforce. You have an obligation too to ensure you don’t breach your own or a colleagues health and safety. If you suspect infection, stay home, notify your employer in the usual or directed way and claim sick leave if you are a permanent employee. If you don’t have enough sick leave you are able to access your annual leave or long service leave (if your entitlement is due). Some employers require approval for you to access these entitlements, ask your employer. If you are permanent part-time you have the same rights pro-rata. If you are casual employee you can access without threat to your ongoing employment, unpaid sick leave. We note the Federal Government is looking at implementing some assistance to casual employee so familiarise yourself with these.
There is a risk you can be deemed that you have abandoned your employment, if you are just scared and don’t turn up for work and don’t contact your employer. It is acceptable to refuse to work in an unsafe environment where your employer has done nothing to mitigate the spread of the virus by providing personal protective equipment (PPE), social distancing or any like strategies. Be careful here and contact us or your union for advice.
2. Can I lose my job if I have to self-isolate or take time off work for any reason related to contracting corona virus or if a family or household member contracts or is ill who you must care for.
No. The anti-discrimination legislation and the state and federal industrial relations laws protect you from unlawful discrimination on the basis of a disability or medical condition or association with a person who has a disability or a medical condition. The industrial relations laws protect you from adverse action being taken against you for an unlawful reason such as unlawful discrimination. You have a right to access your personal leave to provide care and/or support for a family member or member of your household who is ill. You industrial instrument, which might be an enterprise agreement as well as an Award, may provide better entitlements.
Ensure you apply for personal leave promptly and notify your employer.
3. Can I access all the usual remedies and lodge applications in the Tribunals for things like unfair or unlawful (wrongful) dismissal, discrimination or make adverse action claims not involving dismissal?
Yes, but you should get advice from your union or us or contact the Fair Work Ombudsman or visit their site on www.fwo.gov.au. There have been recent posts on the Fair Work Ombudsman Website regarding COVIT 19. It is useful information that is readily available. The Fair Work Ombudsman will not give legal advice or advice on the potential success of a matter that is lodged with the Fair Work Commission. The Tribunals have arranged for matters to be conducted by teleconference, including hearings.
4. If I am a public servant what are my rights?
If you work in the public service as a professional or support employee in an office environment, your employer should be taking the same preventative measures of clear advice to workers and social distancing required by all employers under Work Health and Safety Laws. Discrimination and General Protections laws against adverse action, equally apply to the public service and public sector. If you are a frontline worker in health or other social or support services (eg; departmental public offices servicing the community, including Teachers, transport workers and other government services), you are entitled to work in a workplace free from discrimination and where work health and safety measures are taken to protect you from an unhealthy or unsafe workplace.
Remember, there will be expectations of common sense – what would a
reasonable person expect and what do the laws say. An employer cannot
protect you from Corona Virus as a guarantee but they must take reasonable
steps to ensure your workplaces are healthy and safe. If you believe
there is a risk in your workplace raise it, in the first instance, with your
supervisor and if you are ignored or dismissed out of hand seek advice and
help. Frontline workers in the public service or sector have a right to
expect that their employer will provide them with adequate personal protective
equipment, you do not have to put yourself at risk.
Thank you for reading our first blog with tips for employees. We will be keeping a close watch on issues and complaints that come our way and post further blogs to assist employees, alert employers and stakeholders of what is happening on the ground in workplaces.
We hope humanity prevails and issues are few.