Dear Reader,

Here at the Bulletin, I often get sent queries about employment law issues like dismissal, redundancy, leave, awards, agreements and more.

So this week, I thought I would share 3 of the most frequently asked questions (and their answers!) with you…

Here goes…

Question: Is sick leave included as part of a redundancy payment?

Answer: Unless a contract of employment or industrial instrument provides for it, employees do not have an entitlement to be paid for accrued but unused sick leave when their employment is terminated.

Payment for accrued but unused sick leave is definitely not part of any redundancy payment.

Question: I have an employee who needs to take two days off to have some dental work done. Is he entitled to use personal leave for this or should he be using annual leave instead?

Answer: Strictly speaking, personal leave is only available for illness or injury.

However, if the procedure is such that the employee will be unfit for work (for example he is having his wisdom teeth out under general anaesthetic), it would be permissible for him to use personal leave (even if the procedure is elective).

Question: I was wondering how long we have to keep an employee’s file after their employment is terminated? Are there any rules surrounding this?

Answer: You need to keep your true employee records, which include things like pay, leave, overtime, leave, hours of work etc, for a period of 7 years.

When disposing of these records, make sure that you observe any privacy policy that your company may have and carefully destroy any personal or sensitive information belonging to an employee.

To find out the answers to more frequently asked employment law questions, keep an eye out for the Letters section in your next Employment Law Practical Handbook update. It’s due in your mailbox shortly!

Not yet a subscriber to the handbook? Click here for more information.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

Continues below…

How to find ‘acceptable alternative employment’ for a redundant employee
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

Following on from Tuesday’s Bulletin, today I’m going to show you what kind of employment is considered ‘acceptable alternative employment’ in a redundancy situation.

If you find an employee ‘acceptable alternative employment’, you may not have to pay them redundancy pay.

Also, an important thing to remember is that even if the employee doesn’t think the employment you’ve found for them is acceptable, it still may be!

Employment can be ‘acceptable alternative employment’ if:

• the work is ’similar’;
• the location of the work is not unreasonably distant (i.e. is not too far away from the employee’s previous role with you);
• the pay and hours of work are similar;
• the seniority of the role is the same;
• the job security is comparable to the security they had with you;
• the work load is not substantially different; and
• the work matches the employee’s skills set, qualifications and experience.

Now, not all of these factors will be relevant in all cases. For example, seniority may be irrelevant when the work is unskilled.

But you still have to tread carefully…

For example, in a recent case (Vicstaff [2010] FWA 3141), FWA rejected an employer’s application to be relieved of the obligation to make redundancy payments on the grounds that acceptable employment had been obtained for the retrenched employees.

Their application was rejected because FWA determined that the pattern of working hours for the new employment was substantially different and would involve substantially less take-home pay because of reduced overtime.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook