What Can I Do if the Employee Is Sick?

If your employee has indicated that they have contracted coronavirus, you should handle the employee as you would any sick employee. Full-time employees accrue 10 days of sick or carer’s leave each year. Any untaken leave carries over to the next year. Employees can use their sick leave if they are not fit for work due to personal illness. You may request that your employee provides a medical certificate as evidence of their illness. Once they have used up all their sick leave but are still unfit for work, your employee may remain employed on unpaid leave.
If the sickness occurs over a longer term and you are considering dismissal, you are expressly prohibited from dismissing the employee if they have been absent for less than three months in a twelve month period. Even if the absence extends beyond this period, dismissing the employee still exposes you to significant risk. You will need to be able to demonstrate they cannot perform the requirements of their role. An employee could bring: 

  • a general protections claim, arguing that you dismissed them on unlawful grounds (i.e. because of their personal illness);
  • an unfair dismissal claim (if eligible); or 
  • a discrimination claim under state or federal anti-discrimination legislation.

Can I Quarantine My Employees?

Yes. As an employer, you have an obligation to ensure the health and safety of your employees. This obligation can extend to not exposing them to other potentially infectious employees. If possible, requiring the employee to work remotely is a valid way to achieve the quarantine without too much inconvenience.
You should be careful around discrimination issues if you are quarantining groups of employees. However, doing so if you have reasonable concerns they might carry the coronavirus (e.g. recent travels) is a legitimate way to ensure the health and safety of your employees.

What Can I Do if the Employee Is Prohibited from Travelling Back to Australia Because of a Travel Ban?

It is good practice to:

  • check the terms of the travel ban using reliable sources (e.g. the Department of Foreign Affairs and Trade website); and
  • require employees to provide details of how the travel ban applies to them. 

If the travel ban does apply, employees can use their annual leave. Once they have used up their annual leave, they can remain employed on unpaid leave.

It can be challenging to manage a business where key employees are absent. This is even more so the case where their return date is unclear. If you need to find a short-term replacement, you may choose to engage an employee on a maximum term employment agreement for one or more fixed periods. If you do so, you should provide them with context around the reason for their short-term employment. Their employment will (if drafted correctly) automatically terminate at the term of their contract. 
Alternatively, you may engage a contractor to fill the gaps. Here, you should include a right to terminate their employment for convenience on short notice. It is useful to have a short notice period so you can appropriately respond should the permanent employee or contractor return on short notice. It is also often best practice to communicate to the employee that you plan to re-hire in the interim. This way, they will not be taken by surprise upon their return.
If you are considering dismissing the absent employee, you should be aware that doing so could certainly expose you to significant risks. Some of these risks are outlined below.

Unfair Dismissal

If the employee has worked for you for more than six months (or more than twelve months if your business employs fewer than 15 permanent employees), they are eligible to bring an unfair dismissal claim. Dismissing an employee because of a temporary travel ban is likely to be deemed harsh, unjust or unreasonable.
Therefore, the dismissal may be unfair. However, your exposure may decrease over time if the travel ban continues to apply for a long period of time. If this occurs, you should reassess whether in the new circumstances the dismissal is unfair. In your assessment, you may consider the employee’s ability to perform the inherent requirements of the role.

General Protections

Alternatively, the employee may lodge a general protections or discrimination claim where they argue the reason for termination was unlawful. For example, they could claim that you terminated their employment on the basis of their race.

Key Takeaways

Employees who are unable to return to Australia due to the coronavirus may use their sick or annual leave and remain employed on unpaid leave. You may consider engaging an employee or contractor to replace them. If you choose to do so, having a short notice period will allow you to be flexible should the original employee return on short notice. If you choose to move to dismissal, you expose yourself to significant risks if an employee files a claim against you. However, these risks will depend on the specific facts. It is always advisable to consult an employment lawyer in such situations.