What type of direction can an employer give its employees?
Employers across Australia have seen a substantial increase in the number of directions they have had to issue to their employees, due to government directions, business survival and continuity, or health & safety obligations. These directions include: mandatory COVID-testing; temperature checks of employees; increased disclosure of illness, travel and contact history; working from home; changes to work days, hours, location and duties; and imposition of hygiene regimes including mask-wearing and physical distancing measures.
As a result of these directions or, more likely, as a result of how these directions have been imposed upon employees, employers have consequently seen an increase in the number of challenges to those directions, on the basis that they are not reasonable nor lawful.
So, when is an employer’s direction considered lawful and reasonable?
Where the government has issued a relevant direction or relevant legislation allows a direction to be made (for example the JobKeeper directions that are in place for certain employers until 28 March 2021), an employer may give a direction to an employee. For a direction to be considered lawful, the employer must follow any required process including any written notice to an employee and consider the specific circumstances of each direction.
Most employment contracts require an employee to comply with the employer’s reasonable and lawful directions. Reasonable and lawful directions are those that are reasonable in all the circumstances and do not breach any relevant law.
Under the current health and safety legislation in WA it is an employer’s obligation to provide and maintain, as far as practicable, a safe working environment for its employees. A similar obligation exists under the new legislation that will come into effect later this year, being the Work Health and Safety Act 2020 (WA) and its regulations. Therefore, an employer’s direction to its employees in order to meet its duty of care to its employees and others that may be impacted is likely to be considered reasonable and lawful.
However, before issuing a direction related to health and safety obligations, an employer should consider the specific needs of its employees and customers (for example, vulnerable persons such as children and elderly people, transport and aged care workers) and the impact of any such direction on its employees.
Common directions that are likely to be considered reasonable include: mandatory PPE and safety processes; requiring employees to undertake a COVID-19 test or medical examinations to assess fitness for work; requesting unwell employees to stay away from work to prevent the spread of illness; directing an employee to participate in a workplace investigation; or requiring an employee to undertake tasks within their job description, level and skillset.
Employers will need to carefully consider the consequences of any direction, including whether an employee is entitled to payment where they are directed not to attend work or required to participate in an investigation or assessment of fitness for work. It is also prudent to consider any suggestions made by an employee as to alternative solutions to the direction being given.
So what about the COVID-19 Vaccine – can I mandate it?
With vaccinations commencing in WA on 22 February 2021, employers across all industries are considering whether they can mandate vaccination for their employees. The Fair Work Ombudsman and Safe Work Australia provided updated guidance on this issue on 19 February 2021 and will likely continue to do so as the roll-out continues.
Where a government direction or legislation makes it mandatory, employers will need to ensure their employees comply and can direct their employees to do so.
Where no government direction is in place (which is currently the situation), there are likely to be limited circumstances where an employer can require mandatory vaccinations. If an employer intends to do so, they must carefully consider whether their workplace is one where a mandatory vaccination policy is appropriate and implement processes to ensure employees are aware of the relevant policies and any directions related to vaccinations.
Employers will also need to consider whether the employee has reasonable grounds to refuse to be vaccinated, for example health, political, or religious grounds.
What are the consequences if an employee refuses vaccination?
Whether or not disciplinary action can be taken on the basis that an employee cannot or will not be vaccinated will depend on the specific circumstances of the individual employment and the unique requirements of a workplace.
Where an employer improperly terminates an employee’s employment, or otherwise injures their employment, it risks damage to reputation and employee morale, and claims for breach of contract, discrimination, unfair dismissal or adverse action.
Where to from here?
Employers should consider how, if and for whom they are considering mandating a vaccine and update their policies and procedures to address workplace health and safety obligations, including vaccinations.
It is important to get tailored and practical guidance on your rights and obligations as an employer, including preparation of customised employment contracts, an in-depth review of your policies and procedures and practical advice on implementing those documents.
Find out more at https://www.hhg.com.au
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By HHG Legal Group
