The Australian Institute of Company Directors released its Director Sentiment Index for the second half of the year on 1 December 2016. One of the headline findings is that, despite greater global uncertainty, 34% of directors expect their business to increase both levels of staffing and investment. Business confidence among directors has increased by ten index points and is at its highest since 2013.
When a business increases its staffing levels, it also adjusts all manner of systems and processes. The risks to the business associated with its employees increase. At Everingham Solomons, we hold a comprehensive database of employment documents that can be tailored to the needs of your business to assist you to manage risks around the employer/employee relationship.
For example, we can set your business up with template engagement letters for casual, part time, full time, Modern Award and non-Award staff. We have a comprehensive and robust employment contract for managerial and professional staff. We can assist with agreements for your independent contractors as well.
You may be struggling for time to document your own policies and procedures for your business. We have over 50 template policy documents from which you can choose: Anti-Discrimination and EEO; Code of Conduct; First Aid; Internet Email and Computer Use; Personal Grievance; Work Health & Safety; Workplace Bullying, and so on.
When you need to write to your employees about various issues, you need to follow certain steps and use appropriate language. For example, in show cause or warning letters, letters for the recruitment process, letters regarding the taking of various forms of leave, and the like. We can provide you with a set of correspondence documents covering these matters and others.
We invite you to make an appointment for January 2017 to see us about your employment document needs and start the year on the right track. Everingham Solomons can tailor a document package for the needs of your business because Helping You is Our Business.
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Through the employment of staff an employer has exposure for the actions of an employee that bind the employer. This long established legal principle is referred to as Vicarious Liability.
Vicarious Liability is a liability imposed on one person for the wrongful act of another on the basis of a legal relationship existing between them. This extends to an employer being liable for the wrongful act of an employee.
An employer has long been found to be liable for the harmful acts of an employee if they are done within the course of their employment. A simple example of this would be an employers liability to pay damages in circumstances where an employee in the course of their employment has negligently caused harm to another person.
A recent High Court decision has explored the possibility that an employer could also be held responsible for the actions of an employee when they have gone beyond their normal course of employment and have engaged in intentional and criminal acts.
The recent High Court decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 dealt with a horrific systematic sexual abuse of school children performed by an employed master of a boarding school.
Whilst the victim did not succeed ultimately due to limitation issues, the High Court’s decision has opened the door for liability of employers for the criminal acts of employees in certain circumstances.
In the Prince Alfred College case the High Court looked at the role the employee was appointed to, the special position he was placed in with respect to the victim and the high level of authority, power, trust and control that was delegated to the employee. This combined with the vulnerable position of the victim, presented a factual scenario whereby the occasion for wrongful conduct was as a result of the employee’s role.
Whilst this is not an absolute rule in respect of the criminal acts binding an employee it does present an indication for employers in scenarios whereby they have highly dependent and vulnerable people under their care, such as schools, hospitals, aged care facilities, disability providers and alike.
Employers need to ensure that they have proper systems and polices in place to maintain supervision of staff and ensure transparent reporting systems.
At Everingham Solomon’s we have the skills and expertise to assist you with your employment needs because Helping You is Our Business.
As a general rule, a small business employer is not required to pay redundancy pay, as set out in the National Employment Standards however there are some circumstances where you may be legally required to make these payments.
A “small business employer” is defined under the Fair Work Act as an employer who employs fewer than 15 employees at the time of the redundancy. This includes all employees you employee, the employee who is being dismissed, and any other employee who is being dismissed or terminated.
A casual employee is not to be counted unless they are employed on a regular and systematic basis.
Notwithstanding the National Employment Standards, you may still be obliged to pay redundancy because of the specific terms of a modern award or an enterprise agreement. Examples of modern awards which prescribe redundancy pay for small business employers includes the Joinery and Building Trades Award, Timber Industry Award, Manufacturing and Associated Industries and Occupations Award.
In such circumstances the scale of redundancy pay is usually less than that prescribed by the National Employment Standards.
There are also other employees who are not entitled to redundancy payment, whether they are employed by a small or large business in the following circumstances:
an employee with less than 12 months continuous service;
a casual employee;
an employee who is terminated because of serious misconduct;
the employee is employed for a specific task or for a specified period of time or season and is terminated at the completion of the task or time period;
a training arrangement that applies for a specific period of time; and
the employee is an apprentice.
The bottom line is that the majority of small business employers are exempt from paying redundancy pay however there are certain modern awards where a small business employer is required to pay an employee redundancy pay.
At Everingham Solomons we have the expertise and skills to help you with all of your business’s legal needs and requirements, becauseHelping You is Our Business.
Often, after the separation of employment both employees and employers are concerned about whether or not restraints will apply to the former employee as part of their post-employment obligations to their former employer.
In New South Wales a restraint is valid to the extent to which it is not against public policy bearing in mind an employer is not entitled to be protected against mere competition but is protecting its legitimate interests by enforcing the restraints. Such interests may include employer’s trade secrets, confidential information, the employer’s goodwill, including its connections with its customers.
It is also worth noting that there are statutory obligations under the Corporations Act that an employee cannot use information obtained to gain advantage for themselves or for someone else which may cause detriment to a corporation.
A Court when determining a restraint period, gives considerable weight towards enforceability when the parties have entered into a restraint agreement. Such a restraint agreement can be properly documented in an employment contract.
There are also recognised obligations of loyalty that an employee owes to an employer that do not cease on the termination of employment.
Restraints are important to ensure that the interests of the employer are protected. A clearly defined restraint agreement sets out both the geographic area as well as the time that the parties agree is reasonable to protect the employer’s commercial interests.
The enforceability of the length and area of restraints are unique to a particular business and take into account the background of the separation of employment. For example, for a Court a relevant fact when considering a restraint would be if the employee was made redundant as it goes to the reasonableness of the restraints in the circumstances.
It is important for employers to protect their commercial interests including but not limited to, any intellectual property that is created by staff during their time of employment.
A clearly defined restraint provisions within an employment contract shows the intention of the parties and goes towards securing an employer’s position.
At Everingham Solomons Solicitors we have the expertise to provide advice in relation to drafting employment contracts focusing on restraints placed upon employees to protect the employer’s rights because Helping You is Our Business.
Often a business will have staff who hoard their annual leave, whether it is to insulate themselves for a rainy day, to seek longer periods of leave in the future, or perhaps they just prefer to work rather than holiday.
For a business, this hoarding can create issues. Greater financial provision has to be made for annual leave entitlements. Uncertainty can exist as to whether those staff members may seek long periods of leave at a time not suitable to the business. Employee errors or even fraud can remain undetected if an employee never takes annual leave.
The ability for an employer and an employee to agree to cash out some of an employee’s annual leave has not featured in most Modern Awards. That is about to change. The Fair Work Commission has recently determined that model rules for the cashing out of annual leave are to be inserted in 112 Modern Awards.
What will the requirements be?
A signed agreement between employer and employee on each occasion (signed by a parent or guardian if the employee is under 18)
The agreement must state the amount of leave to be cashed out, the payment to be made, and when it will be made
The payment must be based on wage rates that apply at the time of the cashing out not an earlier time
A four week accrued entitlement to paid annual leave must be retained by the employee
In any period of 12 months, only 2 weeks accrued annual leave can be cashed out
The employer must keep a copy of the agreement as an employee record
But remember, an employer is not allowed to exert undue influence or pressure on an employee to make, or not make, such an agreement. Further, an employer is not to knowingly or recklessly make false or misleading representations about an employee’s workplace rights. So, care needs to be taken in seeking to implement the cashing out of annual leave in your business.
At Everingham Solomons, we have a range of resources available to assist employers meet their human resources obligations because Helping You is Our Business.
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Sometimes it suits employers to hire people for short, fixed periods of time. For example, there may be a specific project with a defined period that requires specialised staff.
A fixed-term contract is an employment agreement which will continue until an agreed date. The term is fixed and it is clearly defined as having a start date and a finish date inserted into the employment contract.
The benefits for an employer of a fixed-term contract is that the employer can conclude the employment relationship upon the expiry date without the need to give reason for termination. An employer that has employees on fixed-term contracts can just elect not to renew the contract.
In this scenario the employee upon reaching the expiry date and not having been offered a renewal is prevented from bringing an unfair dismissal claim or seeking other entitlements such as a notice period.
Issues arise in the event that an employer seeks to bring an early conclusion to the employment contract before the agreed expiry date. In these circumstances, the employer may need to payout the remaining term of the fixed-term contract which might be significant.
Naturally, fixed-term contracts must be genuine in the eyes of the law. An employee who is continually placed on rolling fixed-term contracts may be able to argue that they have had a reasonable continuing expectation that their employment was on an ongoing basis. In this scenario, upon the expiry of the fixed-term contract the employee would be able to bring a claim for unfair dismissal.
If an employer is considering retaining staff on a fixed term contract, it should do so only if there is a genuine expectation that the staff will only be required for a fixed period of time.
Problems can arise in respect of fixed-term employment contracts when employers fail to include termination clauses within the contract. In this scenario, an employer may be stuck with the employee for the fixed term without an ability to terminate the employee within the fixed term.
If an employer has identified a need for an employee for a fixed period of time, they should ensure that their fixed-term contract considers the following:
Appropriately drafted termination clause that allows the employer to dismiss an employee for misconduct or poor performance before the expiry of the term;
Where possible, limiting the term of the fixed term contract;
Making it clear that no notice need to be given to the employee on the expiry of the term of the contract, and their employment will end at that time and their contract will not be renewed.
If you are considering taking on staff for a fixed period of time to meet the needs of your business, Everingham Solomons can assist with drafting the appropriate fixed-term contracts needed, because Helping You is Our Business.
A September 2015 decision of the Fair Work Commission (FWC) resulted in a stop bullying order being made in favour of an employee of a real estate agency.
After a number of incidents between two employees, a confrontation took place between the employees in the tea room. One of the employees called the other a “naughty little school girl running to the teacher” and then defriended her on Facebook. The Deputy President of the FWC said that action “evinces a lack of emotional maturity and is indicative of unreasonable behaviour… [she] took the first opportunity to draw a line under the relationship… when she removed her as a friend on Facebook as she did not like [her] and would prefer not to have to deal with her”.
Some of the reporting on this case has made much of the Facebook defriending incident. In the context of the case, however, it was one of the last in a long line of incidents between two employees with a broken relationship. One employee’s response to their poor relationship was to belittle, humiliate, embarrass the other, and treat her differently from other employees. It was repeated, unreasonable behaviour by that employee, which posed a risk to the health and safety of the other employee. In fact, it resulted in her seeking treatment for depression and anxiety, and making a workers compensation claim against the employer.
The message for employers is to act promptly and reasonably when broken relationships at work start to turn toxic. Seek a mediated outcome between the employees, even engage a professional to assist, and avoid the stress, lost management time and cost of dealing with a stop bullying application before the FWC.
At Everingham Solomons, we can proactively and pre-emptively assist you develop your organisations approach to workplace bullying because Helping You is Our Business.
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In a recent case in the Fair Work Commission, an employee who behaved drunkenly and inappropriately at a work Christmas party won an unfair dismissal case against his employer. The message for employers is that your duties are not necessarily limited to the office; so be careful this season in supplying unlimited alcohol to your staff, or face the consequences.
Mr. Keenan was an employee at Leighton Boral when he attended a Christmas party for the firm in December of 2014. At the party, Keenan’s employer supplied unlimited alcohol for employees without supervision. As a result of becoming highly intoxicated at the function, Keenan acted inappropriately, swearing at his boss and repeatedly harassing a female colleague for her phone number. Keenan and several other colleagues then proceeded upstairs to a public bar, where he allegedly sexually harassed a female colleague and bullied other colleagues.
As a result of Keenan’s behaviour, he was dismissed following the function. Keenan then proceeded to make an application for unfair dismissal to the Fair Work Commission.
Keenan’s worst behaviour occurred after the Christmas party in the upstairs public bar. However as this was not in an employment setting, for Keenan’s behavior in the public bar to constitute grounds for dismissal it needed to be proved that it impacted the capacity of fellow employees at work. In this case it did not, as his colleagues were unconcerned by his behaviour.
The work party, on the other hand, was sufficiently “in the course of employment”, as Keenan attended due to an invitation by his employer. However the Vice-President of the Commission found that Keenan’s behaviour did not constitute grounds for a dismissal. This was due to several reasons, the most notable being that Keenan’s employer allowed unlimited alcohol consumption. The Vice-President found that it was “entirely predictable that some individuals will consume an excessive amount and behave inappropriately”. It was contradictory for Leighton Boral to supply endless alcohol and then dismiss Keenan as a result of his behaviour.
With the approaching office silly season, employers should be aware that a broader duty is owed to employees that does not end when they leave the office at 5pm. Where there is alcohol supplied at work functions, employers should provide supervision to limit intoxication, and ensure that employees get home safely.
At Everingham Solomons we have the experience and expertise to assist and advise on you or your company’s work place legal needs, because Helping You is Our Business.
Since 1 January 2014 the Fair Work Commission has had powers to make orders to prevent workplace bullying.
Workers who believe they are being bullied can apply to the Fair Work Commission for assistance.
A worker is deemed to have been bullied, while at work if:
An individual or group of individuals repeatedly behaves unreasonably towards another worker, or a group of workers of which the worker is a member; and
That behaviour creates a risk to health and safety.
A worker is defined broadly as including employees, contractors, sub-contractors, outworkers, apprentices or trainees and work experience students. The Fair Work Act does not apply to volunteers and members of the Australian Defence Force.
Whilst the amendments to legislation is relatively new, it is worth considering that past acts of bullying can be considered by the Fair Work Commission. In an Application by Kathleen McInnes [2014] FWCFB 1440, a respondent raised a jurisdictional objection to an Application on the basis that the Fair Work Commission should only consider bullying conduct after 1 January 2014. In this case, the Applicant had alleged that she had been bullied over a six-year period between 2007 and 2013.
The Fair Work Commission rejected the Respondent’s jurisdictional objection stating that past behaviour may be taken into account because the legislation is ‘basing future action on past events, rather than changing past rights and obligations’.
The type of Orders that the Fair Work Commission can make can include but are not limited to, ordering:
a person not to contact the worker alone;
an employer to regularly monitor workplace behaviour;
that certain behaviour stop;
that the employer provide information, support and training to workers; and
that the employer review its workplace bullying policy.
In this regard, orders can be made against the employer, co-workers and/or visitors to the workplace. Contravention of a Fair Work Commission order can result in a fine of up to $10,200 against the offending party.
These amendments to the Fair Work Act has significantly increased an employer’s exposure to claims in respect to bullying.
Everingham Solomons encourages businesses to be proactive in their approach to potential claims, by ensuring that their code of conduct, anti-bullying policy, risk management and investigation and claims process is relevant and up-to-date.
Everingham Solomons has the expertise to review policies and procedures regarding workplace behaviour and the complaint processes, because Helping You is Our Business.
All employees in Australia are subject to 10 employment entitlements that are provided to all employees under the National Employment Standards (“NES”). In respect of notice periods under the NES the minimum notice periods are as follows;
Employee’s period of continuous service with the employer at the end of the day the notice is given
Period
Not more than 1 year
1 week
More than 1 year but not more than 3 years
2 weeks
More than 3 years but not more than 5 years
3 weeks
More than 5 years
4 weeks
There is a common misconception that the notice periods set out in the NES are the notice periods an employer can actually rely upon in terminating an employee’s employment. The law is that the National Employment Standards only set out a minimum, so, in circumstances where there is no employment contract or enterprise agreement with a clause stating precisely what the period of notice is a ‘reasonable notice period’ will be implied instead.
This was highlighted in a recent Supreme Court of New South Wales case being, Susanna Ma v Expeditors International Pty Limited [2014] NSWSC 859.
The case of Susanna Ma involved an employee at a global shipping company who had 24 years of service. There was no termination of employment clause in her contract, therefore the Court was able to find that a ‘reasonable notice period’ of 10 months be applied to the employee in these circumstances. This is in contrast to 4 weeks as a notice period under the NES for more than 5 years of continuous service.
The Court in this case looked at the employee’s circumstances such as her age (which was 49 years), the relatively high wage and the seniority of her position.
Cases such as Susanna Ma highlight the need for employers to have well-drafted contracts of employment in place. In circumstances where there is no express clause in relation to notice periods a Court may well interpret a reasonable notice period as being in excess of the National Employment Standards. It is important to have employees on current and clearly defined employment contracts with sufficiently drafted termination clauses.
If you are an employer who wishes to review their employment contracts, or an employee facing termination in their employment, Everingham Solomons can assist, because Helping You is Our Business.
The Australian Institute of Company Directors released its Director Sentiment Index for the second half of the year on 1 December 2016. One of the headline findings is that, despite greater global uncertainty, 34% of directors expect their business to increase both levels of staffing and investment. Business confidence among directors has increased by ten index points and is at its highest since 2013.
