If an employee cannot carry out their job, does an employer have to allow them in to work?

Key Points 
  • If an employee is unable to perform all their duties, (excepting workers compensation situations) an employer will generally be permitted to send their employee home until the employee can and - sometimes - they may not have to pay them.  
  • In the alternative, depending upon their contract, the employer can assign the employee alternate tasks to perform.  
  • Importantly, the employer - not the employee - gets to choose which option works best for the business.

If you are an employer, reading Fair Work Commission (FWC) decisions can be very depressing.  Too often, the FWC is unwilling to hold employees responsible for their poor (or worse) decision making.  Indeed, the FWC will often hold employers responsible for managing the consequences of even the most egregious employee misconduct.   Meanwhile, such employees seem to escape any repercussions.

In that context, a recent decision of the FWC is a 'breath of fresh air' for employers.  The FWC actually held an employee accountable for its poor choices.  It decided that an employer was not liable to pay a worker where he was unable - due to his own stupidity - to carry out his full duties.

This matter concerned a BHP Biliton driver. In 2016, the employee’s driver’s licence was suspended for non-payment of fines. Since his Employment Agreement required him to maintain a valid driver’s licence, his supervisor directed him not to work until the suspension ended.

The employee then applied for compensation during this non-work period.

The FWC made a mess of the initial decision, but got it right on appeal!

The issue was whether the employee was entitled to payment during this period. 

The FWC initially ordered the employer to pay the employee for the relevant period. However, on appeal, the FWC Full Bench overturned this decision.

Decisions by employees in their private lives can have consequences for them at work

The initial FWC decision allowed the employee to evade responsibility because the Deputy President misinterpreted an employer’s right to assign alternative work as an obligation to do so.

However, the Full Bench decided that this contractual clause merely widened the potential scope of an employee’s duties and did not impose a requirement on the employer to provide the employee alternative work.

So, since the employer did not have additional work, and the employee was unable to carry out his usual duties, he was not entitled to payment.

Personal responsibility for employees may be diminished – but it is not dead

This decision has shone a light through the fog of employment law, making employees responsible for their actions.

The FWC compared this situation to where an employee is intoxicated at work, because although the employee will be excused from work, the employer will not have to pay it for time off.

This does not always mean that the employer is able to terminate the employee, especially where they are unwell (even if it was due to their own stupidity).

However, in our experience, where an employee ceases to be paid – they often resign.

Yet, it is great news for employers as they do not have to bear the consequences of employees making poor choices in their private lives. 

Post by Warwick Ryan 

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