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AHRI:ASSIST - question and answer

The team at AHRI:ASSIST answer members' questions every day. If members can't find what they're looking for they can send through their questions via the 'Ask AHRI:ASSIST' email service.
Here are some of the questions covered:

Q. As an employer, are we required to pay for medical eye exams or prescription lenses for an office admin employee?

If a person’s eyesight is deteriorating as a result of work, employers do need to consider whether they are doing everything reasonably practicable to reduce that risks. That does not necessarily mean paying for costs of medical examinations or lenses, but we cannot categorically exclude this without further information.

If the employee does have an illness or injury which affects their eyesight there is also a question of whether reasonable adjustments are being made to accommodate that condition. This is a requirement under anti-discrimination law. In some cases it may be necessary to direct an employee to attend a medical examination in order to determine what adjustments should be made. If this is the case, we would consider it appropriate for the employer to cover the costs of that examination.

Q. Can sexual harassment occur at a work function?

Yes. Sexual harassment can occur outside the office, such as at client functions, external seminars, road trips, Christmas parties and even at customer’s premises.

It can also (and does increasingly) occur by email (private and work) and on social media platforms (e.g. Facebook and Twitter).

Q. Do I have to give an employee a hearing before I dismiss an employee on performance or misconduct grounds?

There is no implied right of an employee under an employment contract to be heard in relation to grounds for intended dismissal. It is arguable however, that if an employer fails to observe its own disciplinary procedures and policies, which require procedural fairness to be given to employees, it will breach the implied term of trust and confidence.

There is also some support in cases for an argument that an employer must not exercise discretion available to it under the employment contract in manner that is capricious or in bad faith.  For example, if an employer deliberately sets performance standards at an unattainable level for an employee because the employer seeks grounds for termination, the exercise of its discretion might arguably breach the employer’s implied contractual duty of good faith.

Obviously, the failure to give an employee a reasonable opportunity to understand and respond to grounds for dismissal before a decision to dismiss is made will increase the likelihood of the dismissal being found by the Fair Work Commission to be unfair, if a claim is made under the FW Act unfair dismissal scheme.

Q. If I purchase a business and inherit some of the staff from the previous owner, can I place them on probation?

Yes, however if the circumstances give rise to a “transfer of business” for the purposes of the FW Act the MEP will not “restart” in relation to the employees transferring to you, unless you recruited them on condition that you would not recognise their service with the previous owner.

Q: We are sending an employee to Thailand next month for work-related training and it has been recommended that the employee be immunised. The question has now been raised – who pays? Can you please help?

You have a legal obligation to make sure any employees work environment is, as far as is reasonably practicable, without risk to health and safety.

With this in mind, providing payment for required immunisation to travel would be a reasonably practicable measure to address health and safety risks and it is something that the business should provide to the employee.

Probation period

Q.  How long should a probation period be?

Employment contracts will often contain provisions for a probationary period, being an initial period of service during which time both the employee and employer can decide whether they wish the employment to continue.  From an employer’s perspective, it provides an opportunity to assess the employee’s suitability for the role for which they have been recruited.  From the perspective of the probationary employee, there is an appreciation that that their work performance will be under review and they do not have a guarantee of ongoing employment.

However, there are many myths about probationary employment. For more information, please refer to our AHRI:ASSIST resources on Probationary periods.

Employee relations

Q.  What is an Employer of Choice?

An employer of choice is any employer that attracts, optimises, and holds top talent for long tenures because the employees choose to be there. Employers who gain a reputation as valuing their employees can establish key points of difference to their competitors. To ensure identification, attraction and retention of key people, organisations should have in place a number of people strategies such as; recruitment and retention, talent development, succession planning and reward and recognition.

The top 5 characteristics of an Employer of Choice:

  • Recognises and rewards staff well  
  • Invests in the learning and development of its people  
  • Operates ethically and fairly at all times  
  • Has family/life friendly workplace practices
  • Management is passionate and engaging to work with

Parental Leave

Q.  Can a (pregnant) employee go on unpaid parental leave before six weeks of the expected date of birth of the child?

If an employee is unfit for any work due to a pregnancy-related illness they can take unpaid special maternity leave. This period is included in the 12 month parental leave entitlement.

NB The Government announced in February 2013 that it intends to amend the FW Act NES so as to provide that unpaid special maternity leave taken prior to giving birth is additional to the NES entitlement to take parental leave after the birth.

Employee Relations

Q. Who is liable for sexual harassment?

The perpetrator is directly liable (personally) for his or her conduct. Any person who aids or abets the perpetrator will also be liable.

Redundancy

Q. What other benefits are payable on termination?

You must pay for unused annual leave and long service leave accrued until termination. Under the FW Act, annual leave loading must be paid on annual leave payments (if the employee would have received that on leave taken). Any unpaid expense claims will need to be reimbursed in accordance with the employer’s policy. In some cases, pro rata bonuses will be payable.

Employee Relations

Q. What is sexual harrassment?

Sexual harassment is unwelcome behaviour or conduct of a sexual nature that causes offence, humiliation or intimidation of the victim. The obligation not to sexually harass others applies to all workplace participants and is not only limited to direct employees of and employer. Included in this wide category of workplace participants are fellow employees, contract workers, commission agents, partners and job applicants.

Q. What is the penalty for a breach or non-compliance?

In the case of a serious breach of the Fair Work Act requirements in respect of employee records a corporate could be liable for up to $25,500 in penalties and an individual $5,100

Further, for a breach of the FW Regulations in respect of record-keeping or pay slip requirements may lead to the Fair Work Ombudsman issuing penalties. This can occur within a year of an alleged contravention. The maximum fines for each contravention, which must be paid within 28 days of an infringement notice being issued, are $2550 for a corporation and $510 for an individual.  

Contracts

Q. How do I know if my employees are covered by a modern award?

To be covered by a modern award, an employer needs to be a National System Employer.

After this is established, award coverage is usually determined by looking at the following:

  • Definitions and interpretation clauses – this will have a definition of the industry the award is to cover and may help in determining whether the award is applicable to the employee
  • Coverage clauses – generally relates to the industry which the award covers, e.g. the retail industry, and may exclude some occupations specifically
  • Classifications clauses – generally this will list the duties performed by employees covered by the award at different levels

WHS

Q. What are my OHS obligations for employees that work from home from a regular / irregular basis? 

You have the same general duty to ensure the health and safety (so far as reasonably practicable) of those employees that work from home. If you have a worker who regularly works from home, you must ensure that they have a safe working environment, they can communicate effectively with you, and they have an emergency plan and appropriate first aid facilities.

Termination

Q. Do I have to give the employee a reason for dismissal?

There is no common law obligation on an employer to give reasons for terminating an employment contract on notice.

However, if an employee is able to access the FW Act unfair dismissal scheme, a failure by the employer to give the employee notice of the grounds for dismissal before a final decision is made to dismiss, will count against the employer if the employee subsequently makes an unfair dismissal claim.

The FW Act also provides a general protections scheme which prohibits dismissal for certain reasons, including the fact the employee has a certain attribute or is engaging in a certain activity.  An employer will be better equipped to defend any general protections claim if it can prove the reasons for any adverse action and show that the decision-maker was not motivated by protected activity or attribute of the employee.

It may be easier for a claimant to prove that the claimed reason for taking adverse action is not the real reason if the claimed reason was not imparted as the reason for taking the action at the time it was taken. An employer may decide not to supply a reason for dismissing an employee if the employee cannot access unfair dismissal laws (i.e. because they have not served their minimum employment period, or are award/agreement-free and earning in excess of the threshold earnings).  This is not a good idea though, because of the potential exposure to general protections claims.

It may be easier for a claimant to prove that the claimed reason for taking adverse action is not the real reason if the action is not consistent with usual processes and procedures in the organisation.  If your organisation has established a process for dealing with unsatisfactory work performance or misconduct (such as a series of steps escalating to dismissal, with various rights of employees and employers during that process clearly specified) and this process is followed consistently, the employee will find it difficult to prove that the actions were for a reason associated with the employee’s protected activity or protected attribute.  This requires adequate training of managers so that they can implement those procedures properly.

When there is potential for one or more employees to be dismissed on grounds of redundancy due to the employer’s decision to implement a major workplace change, modern awards and enterprise agreements may oblige the employer to consult with the affected employees before a dismissal decision is taken.