Work in the hotel industry during the pandemic lock down
Prior to the pandemic, a hotel worker on the Gold Coast had worked 8-hour shifts five days a week. In the first week of August 2021, the local government of Queensland mandated a lockdown for all non-essential activities. The hotel industry is considered a non-essential business activity. So, the hotel remained open but only kept a skeleton staff.
Essential worker at the hotel
The worker’s role included checking guests in and out, answering phone and email enquiries, taking payments, filing paperwork, storing luggage, booking, managing room allocations, reporting and balancing receipts.
Stood down during the lock down in August 2021
The hotel worker was allowed to work on 1 and 2 August but on 3 August, the hotel worker was informed that she was to be stood down without pay until the end of the lockdown on 8 August 2021. The order for her to be stood down was extended until 9 August 2021 and then, to 13 August 2021.
Asked to accept reduced work hours because of the slow business
On 13 August 2021, the hotel worker was allowed to work but she was no longer offered any shifts from 16-21 August 2021. She was able to work a normal shift on 22 August 2021. The hotel sent the worker a letter asking her to accept temporarily reduced work hours because of the lack of business due to the most recent lockdown.
The worker ignored the letter but then on 26 August 2021, her supervisor called her to inform her that if she refused to sign the temporarily reduced work hours, then she would be stood down and would not be rostered anymore. On 30 August, the hotel manager wrote again to the worker inviting her to accept the temporary reduced work hours because although the hotel was operating, it was experiencing occupancy rates that were drastically lower than normal.
Application filed questioning reduced hours and stand down
The worker then filed an application questioning the lock down and the offer to work reduced hours. She claimed the hotel violated s524 of the Fair Work Act 2009 when her work hours were reduced and when she was stood down for refusing to accept the reduced hours.
Worker questioned being stood down for refusing the reduced work hours
The worker was eventually reinstated on 8 September 2021 but she was stood down because she refused to work at reduced hours. Whilst she was stood down, the hotel assigned a colleague of hers to fulfil the worker’s role. Also, even when the regular hotel staff were working at reduced hours, the hotel was still hiring casual staff who did work that could have been done by the regular staff. There was no need for the reduced hours.
The worker believed that she should not have had to work reduced hours because while there were fewer guests occupying the hotel, there were still other work that the worker could have done. She had worked in five other departments at the hotel and she had extensive knowledge in other departments so she should have been redeployed to work in other departments instead of her work hours being reduced.
Feeling pressured to agree to reduced hours
The worker also felt pressured by her supervisor and the hotel manager to agree to sign a waiver and to work reduced hours. The worker felt that reduced hours was a significant and major change to her employment contract.
Also, the worker felt that the hotel had no right to pressure her to sign the waiver because the waiver was open-ended and there was no mention of the date when she would be allowed to return to her full hours. She felt that the hotel did not have any right or cause to stand her down for refusing to sign the waiver and refusing to work reduced hours.
The hotel’s business was on survival mode
For its part, the hotel proved that it was only operating at 10% capacity in August, at 38% capacity in September and October, and in November it was running only at 22% capacity. At that time, JobKeeper benefits were no longer available to them and the business was running at a loss. They were running the hotel on survival mode.
Reduced hours were the means to distribute available work equally
By offering the regular employees reduced hours, the hotel was trying to retain their workforce and share the limited work available amongst all their employees in as fair and equal a manner as possible. By offering reduced hours, they were looking after their entire team. They tried their best to explain this to their workers. Two employees refused to work at reduced hours and while one worker filed this application, the other had found work elsewhere.
Why the hotel hired casuals and did not re-deploy the worker
It was true that the hotel did hire casuals but only when the regular staff could not fulfil their requisite hours. The only reason why the work given to the casuals was not offered to the worker was because the worker never replied to any of the supervisor’s or the manager’s emails. The hotel’s emails directed the worker to contact Human Resources if she had any questions and the worker never contacted HR until just before she filed her application.
The manager could not re-deploy the worker in other departments as it would cost the hotel more money to train her to do other work and it would also unfairly deprive the workers in those other departments the little available work that there was.
Being stood down was never meant as adverse action against the worker
The worker was stood down because the hotel could not give her any more work that they had offered. She was not stood down because she had asserted her workplace rights. The catastrophic state of the hotel’s business was not within the control of the management to ameliorate as it was the effect of the pandemic’s direct impact. In fact, in September, when there was slight upturn in business, the workers who had agreed to the reduced hours were able to work regular hours.
Worker was not singled out
The hotel never singled out the worker as 80% of their regular staff continue to work on reduced hours. In 8 September 2021, when the worker was allowed to work at her regular hours, other members of staff still worked at reduced hours. The only reason why the worker was allowed to work full hours was because she was able to work across two departments.
In fact, as of the time of the filing of the application and the hearing on the application, the borders of Queensland still remained closed. There is still much uncertainty as to when the hotel’s business can bounce back. The worker’s employment contract allows the hotel to stand her down due to unforeseen events that the hotel and its management were not responsible for.
The FWC’s reasoning on whether this situation falls under s.524
Section 524 of the Fair Work Act allows employers to stand down employees when the employee cannot be usefully employed because of an industrial action, a breakdown of machinery or equipment that was not the fault of the employer; and a stoppage of work for a cause that the employer is not responsible for.
While the lock down period may fall under the category of “stoppage of work,” a reduction of available work cannot be considered as a “stoppage of work.” Thus, there was no genuine stoppage of work as the hotel was still in operation although it was operating at a severely reduced capacity. Thus, the stand down of the worked cannot be considered under s524(1) as authorised.
Reasoning regarding a monetary award
However, under s526, the FWC is tasked with treating both the hotel and the worker with fairness. It must consider that even with the business circumstances of the employer, it exerted efforts to mitigate the employee’s loss.
The FWC found that all but two of the regular employees of the hotel had accepted the reduced work hours. The one who had not accepted the reduced work hours had found work elsewhere. By filing this application, the worker is seeking to recoup what wages she could have earned had she not refused the work hours.
The FTC found that the worker was out of touch with the reality of the industry where she worked. She insisted to be put to work in another department so that she can work full hours even if it meant more expense for the hotel whose business was floundering. Also, it would deprive other regular workers their chance to earn income just so the applicant can work her regular hours. By agreeing to accept reduced hours, all the employees agreed to share the burden of the pandemic equally. Only the applicant refused to share the burden equally with others.
The FWC did not give the worker a monetary award.
Source: Kiah Anastasia Shanks v Schwartz Family Co [2021] FWC 6332 (12 November 2021)
