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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: If evidence of misconduct about an employee arise when they are taking annual leave, do I have to wait until the employee is back from leave before investigating?

No, provided you give the employee a reasonable opportunity to respond to the allegations and the evidence when they return from leave.

Q: Is information contained in a reference accessible?

An ex-employee does not have a right of access to a confidential reference you give about the ex-employee to a prospective employer, if you gave the reference on a confidential basis. However, please note the common law duty not to provide a false, misleading or negligent reference for ex-employees.

Q. If an employee approaches an employer to advise they have been offered employment elsewhere and would like to offer the employer to opportunity to make a counter offer, what rights does the employer have to move that employee on? Is this enough of a break down in the working relationship to warrant dismissal?

I don’t think this would be grounds for dismissal.

Generally, an employer must have a valid reason relating to the performance or conduct of an employee in order to terminate their employment.

Q. Can we enforce employees to take 4-week unpaid leave in addition to their 4-week paid leave?

Generally, you can’t force an employee to take a period of unpaid leave. However, there are limited circumstances where this may be reasonable. For example, If your employees are not covered by an award or an enterprise agreement you may require them to take a period of leave during an office shut down over the Christmas/new year period. If they do not have sufficient annual leave to cover this period, then it may be reasonable to require them to take a portion as unpaid leave.

Q. How many fixed term contracts can we have the same employee on before they are considered a permanent employee? 

If an employee has been employed on a series of fixed or maximum term contracts which have been routinely rolled over, it is likely that person will be deemed an ongoing employee and be eligible for redundancy pay (subject to meeting other requirements of redundancy). It will be unlikely, however, that non-renewal of one fixed/maximum term contract at the expiration of the term will give rise to redundancy pay eligibility.

Q. For health and safety reasons, we would like to have a “no facial hair policy” as our staff are required to wear respirators which will not work properly on those with facial hair. 

How do we handle those that have facial hair for religious reasons?

There is an exemption in the Queensland Anti-Discrimination Act which provides that a person may do an act that is reasonably necessary to protect the health and safety of people at a place of work.

If, as you indicate, the employees are required to wear a respirator while at work for health and safety reasons and this cannot be done so with facial hair, it’s likely that the exemption would apply.

Q. If an investigation for misconduct reveals that the employee accused was not at fault or there was no discernible outcome, should the associated documentation sit on the employee file or in an alternative location?

You should retain a copy of the report, however, it would not be necessary to keep it specifically on the employee’s file.

Q. Is Defence Reserve leave classified as community service and therefore annual leave accrues when an employee is on the Defence Reserve leave/Military leave?

An employee’s entitlement to take defence services leave arises under the Defence Act 1903 (Cth) and the Defence Reserve Service Protection Act 2001 (Cth).

Defence services leave will not break an employee’s continuous service, meaning that entitlements to annual leave, personal/carer’s leave and long services leave continues to accrue during periods of defence services leave.

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.