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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:

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.

WHS

Q: What's a "PCBU"? Is a PCBU a person?

A PCBU is any physical person or organisation or other legal entity conducting a business or undertaking. This may be an individual employer, a corporation, an association, a partnership, a sole trader, or a volunteer organisation (if it employs any person to perform work).

Privacy

Q: What are the privacy implications relating to payroll information?

A: You do not need employee consent to hand over personal information about employees to a contractor providing training or payroll management, if the employee would reasonably expect this information to be passed on.

Q. We have accidentally overpaid someone for the last 3 months, are we able to get the amount in overpayment back?

A. If an overpayment has occurred, in order to deduct any amount from an employee, you must ensure that written consent is given by the employee.  The only deductions that can legally be made from an employee are those pertaining to PAYG income tax deductions. Employers need to mindful that there are special rules regarding the deduction or withholding of monies from workers’ wages.

When notifying employees of overpayments, or where an employee does not consent to a deduction being made, it is a good practice to explain that an administrative error has taken place in processing their pay but as a sign of good faith; these amounts will not be recouped. Employees should however be notified that their rate of pay will be reduced to reflect the correct amount in future pay cycles. It is often useful to point to the particular source of wage information applicable to them (e.g. modern award, enterprise agreement, contract of employment etc.) to assist in explaining the correct rate of pay.

Personal and Carer's Leave

Q. An employee has provided a medical certificate for an absence before a public holiday. I suspect that the employee was fit for work that day. The certificate does not describe the employee’s illness. What can I do?

There is little you can do without concrete evidence that suggests the employee was fit for work.

Managing ill and injured employees

Q. We have an employee who is continually late to work. We believe he may be suffering from an illness. How is this situation best handled?

Turning up for work on time is clearly a reasonable requirement of the role.

You should meet with the employee to explain why the lateness is a performance issue and ask the employee if they have any personal issues that might be contributing to their unsatisfactory performance. If the employee indicates that their health is a contributing factor to their poor performance, explain that you need to understand why so that you can determine if there are any steps you could take to help the employee to perform their role satisfactorily. You could suggest that the employee obtain a medical report from his/her doctor and provide that to you. Alternatively, you could ask the employee for permission for you to talk to their doctor. If you do the latter you should make a record of the conversation and give a copy to the employee.

The employee may refuse to cooperate with your request for their medical details. If this happens, you can inform the employee that they must provide the information within a reasonable period. If not, you will have no option but to act in relation to their performance issue without considering the impact of their health.

Explain to the employee that your request for their information is reasonable in the circumstances.

When you receive the medical information you will need to determine whether it indicates that the employee’s health is a contributing factor to the performance issue. If so, you need to determine what measures you might reasonably take to help the employee to turn up to work on time (e.g. different working hours or breaks).

For more information on this, please refer to our case study – performance management of an ill employee.