By Courtney West
Jury duty plays a central role in our justice system and is a type of community service leave that applies to both casual and permanent staff. And while losing your employee for several days or weeks is always inconvenient, it’s important that businesses are aware of what they can and can’t do while their employee is away on jury duty.
In this article, we explain the dos and don’ts of jury duty, and what employers need to be mindful of when an employee is called for or empanelled on a jury.
What can I do if my employee is called for jury duty?
Employees should advise their employer of their expected period of leave as soon as practicable. As an employer, you can request evidence of the employee attending jury selection or duty in the instance that leave is requested.
A person performing jury duty is usually compensated by a payment from the courts, but it’s often a minimal amount. In some states, employers must continue to pay full-time or part-time employees on jury duty their full wages, while in others they’re only required to pay make-up pay – the difference between the employee’s normal wages and the court payment. This can be quite costly to employers, especially small businesses, so it’s recommended that you contact HR Assured’s 24/7 Telephone Advisory Service for further assistance.
Can I stop my employee from attending jury duty?
As an employer, you must release any employee called for jury service. You must not stop the employee from attending, including using threats to their employment, wages, or working hours. You must also not require the employee to take annual leave or personal leave to cover their absence, nor direct them to work additional hours.
If the loss of your employee to jury service will cause significant hardship to the business, you may request that the employee be excused by explaining the impact on your business if they were to serve. This will only be possible before the jurors have been selected (also known as empanelment), and therefore, should generally be done when the employee first receives the letter of summons. Only the employee can make this request, however, the business may assist in this process by providing supporting documentation. It should be noted that making such a request doesn’t guarantee that the employee will be excused.
An employee may also request to be excused on personal grounds, such as based on family responsibilities, medical conditions, study commitments, transport difficulties, or conflict of interest.
Can I terminate my employee while they are on jury duty?
Most Australian states and territories have laws which impose significant penalties on employers who either terminate an employee or otherwise detrimentally change an employee’s employment because they’re performing jury service. Threatening termination is also unlawful.
For example, in NSW, this is a criminal offence bearing a maximum penalty of $22,000 for a company, and $5,500 and/or 12 months’ imprisonment for an individual.
While these prohibitions relate to termination of employment because of jury service, it’s also not recommended for employers to terminate an employee while they’re on jury duty but for a different reason. While it may be theoretically lawful, there’s a significant risk that the termination will be found to be because of the jury service unless there’s compelling evidence otherwise.
Additionally, you’re inviting public scrutiny and potential reputational damage, not to mention the cost of defending your case, which will likely be several times greater than the cost of retaining your employee. In any instance that you may need to process an employee termination, it’s generally advised that you wait until the employee has returned from empanelment.
What else do I need to know?
Jury duty is governed at a state and territory level, so the rules differ across Australia. Every employer has a unique situation when it comes to jury service, so if you have questions about what you need to be aware of, we advise that you seek professional advice before taking any action.
Taking part in this civic duty is important and businesses need to understand their role, ensure they meet all their obligations, and support their employees appropriately if they get called. For more information on jury service and what this means for your business, please reach out to our experts via our 24/7 Telephone Advisory Service.
Courtney West is a Workplace Relations Advisor and assists a variety of clients via the Telephone Advisory Service. She is currently studying for a Bachelor of Laws/Bachelor of Arts.