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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: What can define the difference between a social function versus work organised staff function. What defines the work function outside of work hours?

A: There is no statutory definition of when an out-of-hours employee social event which occurs away from the workplace becomes a ‘work’ event, i.e. one which the employer is entitled to regulate or for which it could be directly or vicariously liable.

However, you need to consider whether there is a sufficient connection with work or the workplace such that the employer would be entitled (under the contract between it and the employee) or obliged (under legislation) to regulate the particular conduct which you are investigating.

This is because an employer is entitled and/or obliged to regulate certain conduct of its employees towards other employees even if it occurs outside of work hours and away from the workplace. For example, an employer can and should require that employees may not at any time bully, assault or sexually harass (or otherwise discriminate against) their fellow employees. The reason for this is that an employer is likely to be vicariously liable under relevant legislation for unlawful conduct such as this, unless it has taken all reasonably practicable steps to prevent it.  

In those circumstances, the unlawful conduct has a sufficient connection with the workplace and so the social event becomes (for that purpose) a work event.

Q. I have an employee who has not turned up to work for 2 consecutive days and has not contacted us to seek approval for the absence. What can I do?

You should send a message to the employee warning them that if they do not make contact with the employer and seek approval for their absence, their employment will be terminated on grounds of abandonment. If no response is received within 48 hours, dismissal will generally be permissible. If you know why the employee is absent, termination may not be as straightforward.

Q. What are the main factors that affect retention?

There are many factors that affect retention and they include; poor leadership and incompetent management, lack of training and development opportunities, lack of suitable rewards and benefits, lack of succession planning and career development, little flexibility with work arrangements and the culture of the organisation.  Each topic is discussed in detail and useful information can be located in the Information sheets and templates.

Q. I prefer my contracted parental leave employee to the employee who is on leave. Do I have to let them return to their old job?

When parental leave ends an employee is entitled to return to the position he/she held before commencing leave. If that position no longer exists, the employee is entitled to return to an available position at an equivalent level or similar nature and pay to the former position.

Q. Can I impose rules about the way that employees give notice of sick leave or carer’s leave absences, and discipline employees if they do not observe these rules?

You can insist that an employee notify you as soon as practicable of the taking of leave and the expected leave period.  You can insist that notice be given in a certain way.  However, you cannot insist that this notice be given by a particular time before work is due to start.

If an employee does not give notice as soon as practicable or in the prescribed way, you can discipline the employee.  However, you will need to be prepared to defend any claim that the discipline is because of the fact the employee has taken sick or carer’s leave, as opposed to the way it has been taken (which claim might be raised as a contravention of the FW Act general protections provisions).

Q. How is engagement linked to retention?

Employee engagement is linked to retention as highly engaged employees are less likely to leave an organisation than with employees that are disengaged. Engagement strategies are similar to retention strategies. Both incorporate a holistic approach of interventions, programs and activities to support the culture.

Q. Can I put an employee on probation after the employee has finished a fixed term contract?

Yes, however if the MEP has expired, any dismissal during the probationary period will be subject to FW Act unfair dismissal laws.

Q. Can we electronically record meetings?

Meetings or conversation can only be recorded with the express consent of all parties involved. You should take the appropriate safeguards to ensure that, if a dispute arose about whether consent was obtained, you could definitively prove that consent was freely given by all involved.

To secretly or covertly record a conversation may contravene several Australian laws, and would mostly be useless as evidence due to the Evidence Acts.

Q. Can I extend a probationary period?

Yes, if the employee agrees or there is provision in the original employment contract allowing you to extend the probationary period.  However, once the MEP expires (being the minimum period of service before the employee has access to FW Act unfair dismissal laws) then the employee may be able to challenge any dismissal within the extended probationary period under FW Act unfair dismissal laws

Q. Should I have any concerns about contacting the employee directly while on stress leave?

Yes.  In some circumstances it is advisable to establish protocols with the employee’s relative or partner for communication whilst he or she is on stress leave. The reasons for this include (but are not necessarily limited to) the risks of exacerbation of a stress injury.

Q: We are considering reducing hours of a casual employee that has been with our organisation for a number of years. The employee's contract completed yearly states that work is dependent upon work being available. Due to the length of service are there any obligations we should be aware of.

Unless the enterprise agreement provides otherwise, a casual is not entitled to notice or redundancy pay. However Fair Work Act unfair dismissal laws may apply which means you will need to comply with the award requirements for consultation with employees.

Q. Can I direct my employees to take annual leave and in what circumstances?

You can require employees to take annual leave if the requirement is reasonable.  Factors determining reasonableness include the reasons for imposing the requirement and the notice given of the requirement.  It will be reasonable during Christmas shutdowns or when accrual is excessive (provided the employee understand when leave is excessive and is given reasonable warning that he or she needs to run down accrual). Modern  awards and enterprise agreements often provide clauses dealing with directions to take annual leave so these should be consulted when considering a direction of this nature.

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

Q. Can I put an employee on probation after the employee has finished a fixed term contract?

Yes, however if the MEP has expired, any dismissal during the probationary period will be subject to Fair Work Act unfair dismissal laws.

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.

Q. Do HR policies form part of the employment contract?

Whether HR policies are incorporated into the employment contact, will depend on how the contract of employment is drafted. Some employment contracts may incorporate an HR policy manual into the employment contract by reference, (i.e. by stating that the contract incorporates the clauses contained in the workplace’s policy manual) which will make those policies express term of the employment contract. Wording here is essential, as incorporation of policy documents can be held to be binding on employers as well as employees, and where it is alleged that employers have breached their own policies, aggrieved employees may have a right to sue under breach of contract as well as other potential avenues of redress.

Employers should take particular caution if incorporating disciplinary procedures into employment contracts as this may unnecessarily introduce a new avenue for employees to challenge disciplinary processes where adherence to these are promised as a condition of employment.

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

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.

Please refer to the Fair Work Ombudsman website for more information.

Q. What is the difference between a salary and wages?

Wages are generally paid on an hourly basis.  They can change depending on the number of hours worked and whether overtime or penalty rates are included.

A salary is an annual amount commonly paid either fortnightly or monthly.  In most instances the salary amount does not change even if the hours worked in a particular week vary.

Q.  An employee wants to take a period of unpaid leave to go on a holiday but they have not accrued sufficient annual leave.  Do I have to approve this? What do I do if the employee says they are going anyway?

You do not have to approve unpaid leave to take a holiday.  If the employee threatens to take the leave anyway you can warn the employee that you will terminate their employment if they take an unauthorised absence from work.

You could offer to advance them paid annual leave on condition that they authorise you to deduct the amount advanced from any amounts otherwise owing to the employee if their employment ends before accruing the amount of leave advanced.

Q. What are alternative solutions to making people redundant?

If the consideration of redundancy arises from a need to reduce labour costs, you could negotiate changes to employment (transfer from full to part-time, or temporary reductions in wages).  You can invite (or, if reasonable, require) employees to take annual leave or long service leave.  You could also create options for employees to take up unpaid leave or secondments

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 not included in the 12 month parental leave entitlement.

Q. Would requiring an employee to sign to acknowledge they have been advised of the content of a memo be considered reasonable?

Yes, employers can require their employees to sign a memo to acknowledge that they have read and understood the content, if requiring that signature is reasonable in all the circumstances. It is important that the content is reasonable, and that employees are not necessarily being asked to agree to the content of the memo.  

Disciplinary action cannot be taken on every occasion an employee refuses to sign a document, it would depend on the content of the document and whether the request to sign was lawful and reasonable (for example, asking to sign a workplace policy such as an OH&S Policy to demonstrate the employee has read and understood the policy).

Q. We are in the process of transferring our business.  what are our obligations with regard to our employees records?

In a transfer of business situation the previous employer is required to transfer the employment records for each transferring employee upon one of the following occuring:

  • the transfer of business assets
  • when the work is outsourced or ‘in-sourced’
  • for associated entities, when the employee is transferred.

The new employer must ask the old employer to provide them with the employee’s records and the previous employer must provide the records to the new employer

Please refer to our section on Transfer of Business for more information.