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COVID-19 causes FWC to be inundated with various employee claims

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Due to the COVID-19 pandemic, the Fair Work Commission has seen a substantial increase to the amount of claims brought by employees.

On 7 May 2020, the Fair Work Commission’s President, Justice Ross, announced the Fair Work Commission’s Coronavirus (COVID-19) response (click here to read his full statement).
Justice Ross noted that there had been a significant increase in the number of claims since the commencement of COVID-19.

In April 2020, the number of unfair dismissal applications received was 65% higher (as compared to April 2019), and general protections claims involving dismissal had also increased by more than 20%. Reflecting the difficult circumstances that many employers and employees find themselves in, the preparedness of parties to reach agreement through voluntary settlement has also declined.

Furthermore, employers are struggling to understand the new JobKeeper provisions, including its application to casuals and the difficulties surrounding regular casuals who said they were not available anymore and did not need to attend work to receive the $1,500 fortnightly JobKeeper payment.

As at 7 May 2020, the FWC had received 212 JobKeeper dispute applications.  Of applications lodged, approximately 25% are within the FWC’s jurisdiction, with the remaining 75% of the cases raising jurisdictional issues.

Of the 25% of applications that were within the FWC’s jurisdiction (noting that some applications relate to more than one of the subjects below):

  • 41% relate to a dispute about a JobKeeper enabling stand down direction;
  • 12% relate to a dispute about a direction about duties of work;
  • 9% relate to a dispute about a direction about location of work;
  • 65% relate to a dispute about a request to make an agreement about change to an employee’s days or times of work;
  • 12% relate to a dispute about a request to make an agreement to take annual leave; and
  • 5% relate to a dispute about a request for secondary employment or training etc.

Seven percent of cases lodged have been settled, 33% are currently open, and approximately 60% have been withdrawn, largely because of the above jurisdictional issues.

Of the applications that raise jurisdictional issues (again noting that some applications relate to more than one of the subjects below):

  • 56% relate to whether a casual employee is an “eligible employee” to receive JobKeeper payments;
  • 17% relate to the “one in all in” principle and nomination of employees for JobKeeper payments’;
  • 3% relate to employer eligibility for the JobKeeper scheme;
  • 7% relate to a stand down that occurred before 9 April 2020’;
  • 5% relate to a dispute about an employee’s employment status’; and
  • 13% relate to a dismissed employee who seeks re-engagement in order to become an eligible employee.

As demonstrated above, in these unprecedented times, disputes between employees and their employers have significantly heightened. The substantial increase in unfair dismissal & general protection claims should confirm to employers the importance of seeking legal advice prior to making any decision to terminate an employee’s employment.

For any questions in relation to the content of this article, please contact the MST Lawyers’ Employment Law on 61 3 8540 0296 or workplace@mst.com.au