With all the changes the Fair Work Act has made to dismissal legislation, you’d certainly be forgiven for being a little wary about dismissing an employee these days.

Because the fact of the matter is, even if you think a dismissal is cut and dried, there’s a good chance it’s not…

Just take this recent case as an example:

A tow-truck driver was dismissed after telling his employer he no longer wanted to be a part of an out-of-hours roster system he had agreed to for years.

The employee was awarded $22,408 in compensation. (Glenn Westblade v Harvey & Dunn Pty Ltd T/A Albury Auto Body Repairs [2010] FWA4961 (21 July 2010).

So what can you learn from this case?

In short, you need to make sure you have covered all your bases before you dismiss an employee.

For example, before dismissing an employee, you should always ask yourself the following three questions:

1. Do you have a valid reason for dismissal? Make sure you have a sound reason for the dismissal that you can prove.
2. Have you demonstrated procedural fairness in your decision to dismiss? This is where the employer in the case above went wrong – you must ensure you follow all the proper procedures when dismissing an employee.
3. Is dismissal a proportionate punishment in the circumstances? Ask yourself if the ‘punishment’ of dismissal fits the employee’s ‘crime’.

Need more information on dismissal? Check out the Dismissal and Unfair Dismissal chapters in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information on how it can help you manage your employees effectively and legally.

Until next time…

Claire Berry
Workplace Bulletin

Last week, a rather interesting case caught my eye…

It involved Australian fashion chain Cotton On, who admitted to failing to pay 3289 employees for attending training sessions and staff meetings outside of work hours over an 11 month period in 2008.

The company voluntarily paid back $278,000 to the under payed employees and will now report to the Fair Work Ombudsman (FWO) each year for the next three years about the wage rates and entitlements it pays its employees.

Cotton On will also display A3 sized statements apologising for the underpayments in each of its stores for the next 30 days and put all of its HR managers through a workplace relations compliance program.

So why did this particular case catch my eye, I hear you ask?

Because it draws attention to a common misconception held by many employers…

Continues below…

How to avoid underpaying your employees

Under the Fair Work Act, you are only required to pay an employee overtime if an entitlement arises under a modern award, enterprise agreement or employment contract.

However, many employers forget that even if an employee is not entitled to overtime under the Fair Work Act, they must still be paid for each hour that you request or require them to work.

This includes things like training sessions and staff meetings outside of work.

For more information about reasonable hours of work, check out chapter M3 Minimum Conditions of Employment – Hours of Work in your Employment Law Practical Handbook.

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

Until next time…

Claire Berry
Workplace Bulletin

I got an interesting question from subscriber earlier this week – one I think you will want to know the answer to as well.

So today, I thought I would share the question (and its answer!) with you…

Here goes…

Question: I have a long term employee who has been with our organisation for 12 years. She performs her role adequately, but due to a downturn in business, we can no longer justify paying her current salary for the role.

Answer: If you think that the salary being paid for a job in your business is excessive (having regard to the tasks, skill and experience required by someone to perform that job), then this is a redundancy situation.

This may mean that you need to offer the new role (with the adjusted rate of pay) to the current occupant. You would also have to offer them any other suitable role that was vacant.

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 will be packed full of subscriber questions and answers just like this one, and 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

At one point or another, you’ve probably had an employee complain to you about something.

The way they clash with another employee… the fact that they feel their manager is unfairly expecting too much of them…etc…

And the problem is that sometimes, it can be easy to dismiss a complaint without giving it too much thought.

You may think – “Hmmm, OK, I’ll keep an eye on that one” or “I’m flat chat with this paperwork at the moment, so I’ll look into it next week”.

But you can’t afford to do that…

A recent finding by Fair Work Australia proves exactly why you can’t just dismiss employee complaints.

Check out Charles’ article below for an analysis of the case and what you can learn from it.

Until next time…

Claire Berry
Workplace Bulletin

The Federal Government has recently announced that they intend to introduce a single, comprehensive Commonwealth anti-discrimination Act at some stage in the near future.

Even though this new, streamlined Act isn’t being brought in for a while yet, you may hear little tidbits in the news about changes to discrimination laws and new draft discrimination legislation over the coming months.

For example, in last Thursday’s Bulletin, I told you that the government will soon establish breastfeeding as a separate ground for discrimination.

So in short, keep you eyes and ears alert to news about changes to discrimination laws!

I will, of course, keep you informed about everything you will need to know in future Workplace Bulletins.

You can also expect an updated version of the Discrimination chapter in your Employment Law Practical Handbook to be released shortly.

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

Until next time…

Claire Berry
Workplace Bulletin

Even though I haven’t spoken about it much in the Bulletin lately, you will probably remember that the Federal Government’s paid parental leave scheme is due to kick off from 1 January 2011.

And there’s no doubt about it…

It will be a huge change!

You will need to be aware of exactly how paid parental leave will affect your business. For example, you will need to know how to make payments to employees… who is eligible for the scheme, and much more.

Nothing has been set in stone just yet, but earlier this month, the Government released draft legislation that is due to be finalised soon.

In his article today, Charles will go through what this draft legislation contains and what it will mean for your and your business.

Stay tuned to future Bulletins for more information on paid parental leave as it becomes available.

In the meantime, to find out more about parental leave in general, check out the Parental Leave chapter in your Employment Law Practical Handbook.

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

Until next time…

Claire Berry
Workplace Bulletin

Just last week, the Federal government announced that breastfeeding will soon be established as a separate ground for discrimination.

Even though breastfeeding already falls within the current definition of sex discrimination, the Government plans to make breastfeeding a whole new ground to emphasise the fact that it is a protected attribute.

It also plans to introduce legislation that will prevent employees being discriminated against on the grounds of their family responsibilities.

The government have yet to announce exactly when these new measures (along with a number of other changes I will discuss in future Bulletins) will be introduced.

But they are coming…

How to make sure new changes to discrimination legislation won’t affect you

Before these changes are brought in, you should review your current policies and practices.

This will help you determine if the new legislation will impact the way you do business and will also help you avoid liability down the track.

You should ask yourself the following questions:

• What is your approach to dealing with employees who have family responsibilities?
• What is your approach to breastfeeding in the workplace?
• Are your approaches to these matters lawful?
• Do you have policies in place that outline your approach to these matters?

If you don’t already have sound, lawful policies in place, now would be a good time to introduce them.

That way you can get in before the legislation is officially brought in and minimise your chances of breaching it!

Check out Charles’ article below for a recap of the things you can never discriminate against an employee for.

Until next time…

Claire Berry
Workplace Bulletin

• dismissing an employee;
• changing an employee’s role; or
• discriminating against an employee for any reason (e.g. for their union involvement).

I can’t stress this enough…
Don’t just ignore adverse action provisions – they could come back to bite you…
You need to take steps to ensure that you do not take unlawful adverse action against an employee.
Why? Because any worker can lodge an adverse action claim against you, and if you’re found to have breached adverse action provisions, you could be made to pay an unprecedented sum in damages.
Also, if an adverse action claim is made against you, the onus is on you to prove you did not break the law.
A difficult task indeed, because until recently, adverse action provisions had been largely untested, leaving us all in the dark as to how a claim would be judged.
However, the first ever ruling on an adverse action claim was recently handed down…
Check out Charles’ article below for a summary of the case and the lessons it can teach you about protecting yourself if a claim is made against you.
If you’re after more detailed information on what constitutes adverse action, check out the General Protections chapter in your copy of the Employment Law Practical Handbook.
Not yet a subscriber to the handbook? Click here for more information.
Until next time…

Claire Berry

Workplace Bulletin

Welcome to today’s Bulletin.

I’m sure you heard about the cloud of volcanic ash that halted all air travel in and out of Western Europe last week.

Thousands of passengers bound for Australia were stranded in various European destinations and had to wait until airspace re-opened to fly home.

Why am I writing about this in the Workplace Bulletin, you may ask?

Well, the answer is simple: natural disasters such as this can affect you directly as an employer.

For example, if one of your employees gets caught up in a natural disaster while away on holidays, would you know what kind of leave to apply to the extra time they are out of the office?

Would the extra days count as annual leave, or is there a specific type of leave that should be applied in circumstances such as this?

Well, I decided to check with our lawyers, and here’s the answer they gave me:

If you have an employee who is caught up in a natural disaster and therefore can’t attend work, this is unpaid leave unless you give the employee the option of taking it as annual leave. Of course, you can also treat it as special paid leave if you want to.

Remember, however, that some permanent employees will not have sufficient annual leave accruals. This will require you to advance the leave.

So there you have it.

Until next time…

Claire Berry
Workplace Bulletin

Having employees who work from home on a regular basis can have great benefits – both for you and your employees.

The employee can fulfill their family obligations more easily by not having to worry about long, time-consuming commutes, and it gives you an avenue to keep valuable staff happy and retain their services.

But don’t just assume that allowing an employee to work form home is as easy as saying “Go for it”.

There are a number of things you need to consider before allowing employees to work from home on a regular basis…

1. You will need to consider how you will be able to effectively assess the employee’s performance.

For example, you may have to come to an agreement with the employee that they send you through weekly or monthly reports on their progress.

Alternatively, you may want to introduce a more stringent goal-setting process – e.g. arrange monthly meetings with the employee to set goals and targets for the next month. This will make it easier for you to measure the employee’s performance.

2. You will need to consider the effect of working alone and having minimal contact with others on the employee.

It is a good idea for you to introduce measures that ensure employees who work from home don’t feel isolated or ignored.

One thing you could do to combat this is create a regular communication schedule between the employee and other staff members. You could also arrange a support group of sorts consisiting of other employees who also work from home.

Another option is to arrange regular meetings with the employee where they come into the office to meet with you or other managers and employees.

And don’t forget – it is also your legal responsibility to ensure that an employee’s home office space is safe, comfortable and free of OHS risks!

It is not enough for you to just assume that an office an employee sets up in their own home will be adequate in terms of OHS.

Check out Charles’ article below for information on how to make sure your employee’s home office is safe and without risks to health.

Until next time…

Claire Berry
Workplace Bulletin