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February 02, 2021

Question from Halliburton HR ([email protected])

One of our employee at remote site has refused to cov-19 test as per client requirement, if there is no other work beside this client, since the employee cannot work for this client without negative test result, can we give notice to terminate his contract? Thanks.

Hi Mary

My sincere apologies for the delay in getting back to you.

Unfortunately we are not able to provide specific legal advice through the Help Desk service.  However, we can clarify the law.

First, you should consult the employment contract and determine whether or not it gives you the right to take disciplinary action in these circumstances.

Second, employers have a duty to protect workers’ health and safety under OHS legislation – this duty applies to your company and your client’s company, and part of this duty involves ensuring the workplace is COVID-safe.  If employees are exhibiting symptoms of coronavirus, it may be reasonable to require them to undergo testing before you allow them to return to work, with the purpose being to protect the health and safety of those in the workplace.  It is less clear whether or not an employee can be compelled to undergo testing if they are not in a higher risk category (for example, if they are not exhibiting symptoms, aren’t required to work with vulnerable people, have not been overseas and have had no close contacts), or if they aren’t required to come into close contact with others in performing their work duties.

Finally, employees have a duty to be ‘ready, willing and able’ to perform their work duties, but it is not clear that refusing to undergo a COVID test would necessarily mean they are in breach of this duty.  Ultimately it will depend on the surrounding circumstances (which we are not privy to).

Terminating an employee in these circumstances could expose you to an unfair dismissal or general protections claim.  We recommend seeking professional legal advice.  If you require advice on a commercial basis, you can contact Hannah Dunai at [email protected] or (03) 9321 9816.

Kind regards

Ella Clements

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