Skip to

Global website search.

Other websites

Menu

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. Does the job description form part of the employment contract?

This will depend on whether the job description is attached to the employment contract, or if the job is described in detail in the body of the employment contract. Employers need to be aware of the effect job descriptions can have on managerial directions; a comprehensive job description in association with an employment contract may limit the employer’s implied contractual right to require an employee (and the employee’s corresponding duty) to comply with all lawful and reasonable directions of his or her employer.

Q. Can I lawfully terminate an employee for absenteeism?

You can discipline, and potentially dismiss an employee for not following rules about taking sick leave e.g. notifying the employer as soon as practicable of sick leave absences. You can lawfully terminate the employment of an employee who has exhausted their paid sick leave entitlement and taken more than three months of sick leave days in a year. However, if the sick leave absences are because of an impairment or disability, anti-discrimination laws may require a degree of flexibility in responding to sick leave absences if it reasonably accommodates the employee’s condition.

Q. Can an employer ask staff to pay a deposit for compulsory uniform items?

The Fair Work Act prohibits an employer from directly, or indirectly, requiring an employee to spend an amount in relation to the performance of work, if that requirement would be unreasonable.

Generally, it may be reasonable to ask staff to pay a deposit for uniforms depending on the amount.

If the employee is covered by an award or enterprise agreement this may include terms relating to payment for uniforms.

Q. Can we force employees to take unpaid leave in addition to their 4 weeks' 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. Is there a maximum notice period for advising someone that their role is being made redundant? Could a company advise someone that their role will be made redundant in 6 months time once a particular project is completed if we cannot find a suitable alternative role?

There is no maximum notice period for advising someone that their role is being made redundant.  Advising someone that their role will be made redundant in 6 months’ time once a particular project is completed if you cannot find a suitable alternative role will not be notice of termination.

Q. What are the privacy implications in a sale of business situation?

You do not generally need to obtain employee consent to give a prospective buyer of your business access to records of personal information about your employees, provided your employees would reasonably expect that this access would be given. Often at a preliminary stage only aggregated information that is not personal information will be provided to a prospective buyer. It might also be illegal to tell the employees about the sale (for example due to ‘insider trading’ laws), which is an exemption of the requirement to consent for disclosure.

Q. What is sexual harassment?

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 are the privacy implications in a sale of business situation?

You do not generally need to obtain employee consent to give a prospective buyer of your business access to records of personal information about your employees, provided your employees would reasonably expect that this access would be given. Often at a preliminary stage only aggregated information that is not personal information will be provided to a prospective buyer. It might also be illegal to tell the employees about the sale (for example due to ‘insider trading’ laws), which is an exemption of the requirement to consent for disclosure.

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).