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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:

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.

Annual leave

Q. My business can’t afford to be without my employees for four weeks a year, can I force them to cash out their annual leave?

Use this checklist to determine whether you can cash out annual leave:

If an enterprise agreement applies to the employee’s employment, it must contain a cashing out clause that requires that:

  • “cashing out” not leave the employee with a leave accrual less than 4 weeks
  • each cashing out be achieved by separate written agreement between the employer and employee
  • the ‘cash’ be equal to the amount the employee would have received if the employee had taken the leave

If so, you can cash out the leave in accordance with the term.  If the enterprise agreement does not include a cashing out term (or the term does not impose the above requirements) you cannot cash out annual leave.      

NB the above also applies if a modern award applies to the employee’s employment and provides for cashing out.  

However, as at February 2013 no modern award provides for cashing out of annual leave.  Therefore if a modern award applies to the employee no cashing out is permissible.

If the employee is award/agreement free then cashing out is only permissible if:

  • “cashing out” does not leave the employee with a leave accrual less than 4 weeks
  • each cashing out is achieved by separate written agreement between the employer and employee
  • the ‘cash’ paid be equal to the amount the employee would have received if the employee had taken the leave

The requirement that the ‘cash’ be equal to the amount the employee would have received if the employee had taken the leave is measured as at the time of cashing out.  The amount must include leave loading if that would have been payable.

Managing ill and injured employees

Can I fill or make the employee’s position redundant while the employee is on stress leave?

In the short term, it would be best not to make any decisions that might impact on the employee’s ongoing employment until efforts are made to enable a return to work. This will reduce the risk of both further aggravating the employee’s stress condition and an extended period on which the employee is receiving weekly payments.

If the employee is receiving weekly payments under the employer’s workers’ compensation policy the employer will ordinarily be subject to an obligation to provide suitable employment.  The employer need not do this if it would cause it unjustifiable hardship (see above).

If a return to work is unlikely or would cause the employee unjustifiable hardship, the employee’s position may be filled or made redundant provided that this decision is taken solely on the basis of the requirements of the business rather than the employee’s impairment.

Probationary periods

Q. Do I have to give an employee a reason for not having their employment continued beyond the probationary period?

If (a) there is no such requirement imposed by the employment contract; and (b) the MEP has not expired, then you will not have any exposure to unfair dismissal if you fail to give a reason.  However, the employee could contend that the reason is discriminatory or in contravention of the FW Act general protection provisions.  Therefore, it is usually a good idea to give a reason for dismissal and document the process that led to the dismissal decision.

Case study

In November 2012 the Federal Magistrates Court imposed a $15,840 penalty on West Coast Propellers for dismissing a 16-year-old after 4 months’ service because the boy’s mother queried his pay.  The director was personally fined $2,640.  The prosecution followed an investigation by the Fair Work Ombudsman.  Although the employee was within the MEP, the fact that the employer dismissed the employee because he (or his parent) queried whether he was being paid correctly, resulted in the employer contravening s 340 of the FW Act.

Q. Do I have to warn an employee who is underperforming during their probationary period that they are unlikely to have their employment continued beyond the probationary period?

If (a) there is no such requirement imposed by the employment contract; and (b) the MEP has not expired, then you will not have any exposure to unfair dismissal if you fail to give a warning before dismissal.

Redundancy

Q. How do I choose which employees to make redundant?

Firstly, roles become redundant, not employees.  Employees may be displaced by the redundancy of their role.  Those employees will either be retrained, redeployed or retrenched (ie their employment terminated as a consequence of redundancy).

If a role becomes redundant because the functions or tasks being undertaken in the role are no longer required by the employer or a decision has been taken to allocate that work to other roles, then the employee occupying that role will have to either be retrained, redeployed or retrenched.

If the reduction of workload in a particular area means that less people are required to perform a particular role, then the issue of selection of employees becomes relevant. The use of “LIFO” (last in first out) is legitimate as are many other methods.  The selection criterion must not be discriminatory or contrary to the FW Act general protections provisions.

WHS

Q. We suspect that an employee may have falsified a claim that they injured themselves at work (there were no witnesses and no other evidence of this event) – what do we do?

You should direct the employee to undergo an independent medical examination to determine the nature and extent of the injury. Unfortunately, in many cases it will be very difficult to prove that the injury did not occur in the way that an employee claims. There may be other forms of investigation that will reveal the truth of the incident. These include reviewing other evidence to see whether it corroborates the employee's version or not, for example, phone records to identify the location of the worker at the time of the incident.

Q. Our employees can work from home if they want, do we have to provide them with a first aid kit?

You must ensure that an employee who regularly works from home has appropriate first aid facilities. A prudent employer would provide a first aid kit to such an employee, unless you have taken reasonable steps to satisfy yourself that the employee already has appropriate first aid facilities in his/her home.

Bullying and harassment

Q. What is the duty to prevent bullying?

The primary safety duty is essentially the same across all jurisdictions in Australia, which is to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to health and safety risks arising from the workplace. This includes the risk of bullying.

Termination

Q. I’ve found someone who I think will do a better job than my current employee, can I terminate them?

This will, in effect, amount to a performance-based dismissal of the person whose employment you are seeking to terminate. You will need to either implement a performance improvement process (if the employee can access unfair dismissal laws) or negotiate an agreed separation with the employee, if you want to replace them.

Maintaining Employee Records

Q. Can an employee record be inspected?

While an employee record should remain confidential at all times and accessed only by HR managers or the equivalent, employees and former employees or their representatives such as lawyers or union officials are entitled to request that the employer provide a copy of their record or some aspect of it. Further, the Fair Work Ombudsman has the power to have its inspectors inspect and copy records

Contracts

Q. MY CONTRACT ALLOWS FOR FOUR WEEKS OF ANNUAL LEAVE PER YEAR. DO I HAVE TO GET APPROVAL FOR THIS LEAVE?

Most employment contracts should provide a condition that leave is subject to approval.Provided an employee has a positive leave balance, employers and employees must agree on a mutually convenient time for an employee to take leave. Employers can generally refuse to approve leave (and this is usually done so on the grounds of imposing particular strain on an employer’s business if the leave were to be approved), however, employers do need to be careful when deciding whether to approve or deny leave applications and ensure that reasons are provided to employees.

Probationary periods

Q. DO I HAVE TO GIVE AN EMPLOYEE A REASON FOR NOT HAVING THEIR EMPLOYMENT CONTINUED BEYOND THE PROBATIONARY PERIOD?

If (a) there is no such requirement imposed by the employment contract; and (b) the MEP has not expired, then you will not have any exposure to unfair dismissal if you fail to give a reason. However, the employee could contend that the reason is discriminatory or in contravention of the FW Act general protection provisions. Therefore, it is usually a good idea to give a reason for dismissal and document the process that led to the dismissal decision.

Case study

In November 2012 the Federal Magistrates Court imposed a $15,840 penalty on West Coast Propellers for dismissing a 16-year-old after 4 months’ service because the boy’s mother queried his pay. The director was personally fined $2,640. The prosecution followed an investigation by the Fair Work Ombudsman. Although the employee was within the MEP, the fact that the employer dismissed the employee because he (or his parent) queried whether he was being paid correctly, resulted in the employer contravening s 340 of the FW Act.

Parental leave

Q.  AN EMPLOYER SUSPECTS AN EMPLOYEE WHO IS ON PARENTAL LEAVE IS GUILTY OF STEALING. CAN THE EMPLOYER INVESTIGATE WHILE THEY ARE ON LEAVE? HOW DO YOU HANDLE THIS SITUATION?

Yes, but you need to make reasonable adjustments to the investigation process to give the employee a reasonable opportunity to answer the allegations.

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