Workplace COVID-19 regular wrap-up - 10 July 202010 July 2020
It has been some time since we released a regular wrap-up. There have not been many notable employment or WHS matters to report on as people seem to have adjusted to the new normal relatively well. However we thought it was timely to provide another update given the regrettable developments in Victoria this week, which will no doubt impact many of our clients and their employees.
COVID-19 causing a massive surge in unfair dismissal claims
The Fair Work Commission has seen an dramatic spike in its workload as a result of COVID-19. Bernadette O’Neill, the General Manager of the FWC, told a Senate committee that the number of unfair dismissal claims had increased 70%, reaching levels that were “unprecedented, so significantly higher than any other period from our records”. Consequently, parties are experiencing longer wait times for their matters to proceed to conciliation or hearing. Justice Ross, President of the Fair Work Commission, also observed that fewer matters were settling, further extending wait times as a greater proportion of matters progress to hearing.
At present, there are few published decisions dealing with terminations in the COVID-19 landscape. However, employers are reminded that their obligations to employees continue to apply. In Mohammad Aimal v Battery Energy Power Solutions, the employer asserted a jurisdictional objection to Ms Aimal’s unfair dismissal claim because they dismissed him due to a “genuine redundancy” of his position. However the employer had to abandon this jurisdictional objection because it had not complied with the consultation obligations under the relevant Award.
In view of the exponential increase in the number of claims being made, and the increased likelihood that employees will seek to enforce their rights by taking matters all the way to hearing, employers should take extra care to comply with their legal obligations before making any decisions in relation to their employees or face the likely prospect that they will not be able to successfully defend any claims made.
WHS obligations relating to mental health during a pandemic
As Victoria enters another period of COVID-19 lockdown, employers should expect that this will have an adverse impact on some employees mental health and psychological wellbeing. Employers should be mindful of their WHS obligations to employees who may be impacted. We have provided some guidance on these issues in previous regular wrap-ups and we encourage employers to take another look: