Despite unprecedented circumstances, employers still need to consider the requirements of dismissal under the Fair Work Act when ending employment to avoid legal action against them.
When dismissing or standing down employees due to COVID-19 limitations, employers must continue to comply with the applicable award, enterprise agreement, workplace policy or employment contract, as well as providing employees with their legal entitlements, such as notice, accrued leave and redundancy payments.
The Fair Work Act prohibits employers from dismissing employees due to illness or injury, meaning that if they have contracted COVID-19, or have symptoms that prevent them coming into work, they cannot be dismissed.
Employers who are affected by COVID-19, such as those who are facing business slow down or are shutting down may dismiss employees under redundancy. Employees may be entitled to redundancy pay if their continuous service to the employer is less than 12 months. Regular redundancy eligibility requirements still apply and not all employees will be eligible, such as casual workers, apprentices and trainees.
The Australian Government has enabled employers to make temporary and partial stand downs during COVID-19. Stand downs can be enforced without pay if the business has been closed due to enforceable government direction (non-essential services), if a significant portion of employees are under self-quarantine, or if work is forced to stop due to lack of supply.