woman carrying box after being fired

The Fair Work Act offers guidance in a COVID-19 context to employers who may be unsure whether they can lawfully stand down employees when their roles become redundant. The Fair Work Commission recently heard a case involving a Melbourne school who stood down two Library Technicians and a Classroom Learning Assistant during the city’s lockdown in August 2020, which brought to light the new considerations employers must make.

When determining whether an employee should be stood down (in situations where there is a stoppage of work – i.e., COVID-19 lockdowns) in accordance with the FWA, it specifies that the employee in question must meet certain guidelines. Section 524(1) of the Act specifies that school may stand down employees in certain circumstances:

  1. When the employee cannot be “usefully employed” over the period in question
  2. When there has been a stoppage of work for which the employer cannot be held reasonably held responsible

To determine whether someone could be “usefully employed”, the school had to first explore any alternative tasks for the employees, before they are able to deem them “useless”. The Commission found that the second condition had not be satisfied, because even though ‘on-site’ teaching had ceased, virtual teaching provided alternative roles for the employees to undertake since their roles were not confined to the physical classroom.

In the light of Melbourne’s current lockdown, the lessons learnt from this case may come in handy for other Melbournian employers sooner than they thought. Contact Daniel Morgan for advice.

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