Valid Reasons for Termination of Employment

jmhThere are a number of valid reasons to terminate employment. These include:

 

Capacity

Capacity relates to the employee’s ability to perform the inherent requirements of the job. To rely upon capacity as a reason for termination, the core duties of a position should be compared against the employee’s ability to perform those duties. Evidence should exist to attest to the lack of capacity, and reasonable alternatives considered to termination.

Conduct

Reasons related to conduct can range from serious contraventions of workplace health and safety obligations to serious misconduct. There must be evidence that the conduct occurred. You should then assess whether termination is fair or whether a lesser form of disciplinary action is more appropriate.

Performance

In cases of persistent poor performance of duties, the employee should be notified of the precise issues, given an opportunity to respond and generally provided with a reasonable period of time to improve. There should be prior warning that continued poor performance may result in termination.

Genuine redundancy

Genuine redundancy may constitute a valid reason if it can be demonstrated that a position is no longer required to be performed by anybody, consultation with the employee has occurred, and acceptable redeployment options considered and offered.

Termination Pursuant to Employment Contract

The employer may terminate provided the employment contract contains a mutual notice of termination clause, and provides for the same or more generous notice period than required by the National Employment Standards.

Termination of any employment is always a serious issue, often involving complex legal issues and heightened by emotion and stress on both sides. Expert legal advice is required.

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.

Click here for more information on Jessica Simmonds.

Social Media at Work

RHGThe use of the internet and iphones by workers is increasing, and with social media becoming more and more popular, so too is the use of these devices by employees during work hours.

Whilst some employers may encourage their staff to actively promote the business via social media networks such as Facebook and Twitter, many a boss is lamenting the rise of the thumb-twitching, seemingly constant, updating of employees’ status between nine and five.

The most obvious impact of an employee using work time for personal communications is decreased productivity. But having the employee’s mind more focused on who “liked” what and what they had for breakfast could be the least of the employer’s worries.

The use of social media at work also raises concerns regarding inappropriate conduct which can negatively impact on public perception of the business, or could also lead to bullying and harassment or disclosure of confidential information (whether intentional or not).

There are further risks for employers when attempting to discipline employees who inappropriately use social media.

To combat the risks of inappropriate social media use, it is recommended that employers adopt a social media policy which provides strict guidelines on the use of social media in the workplace, as well as out of hours. Such a policy can also reiterate employees’ responsibilities in relation to harassment and confidentiality.

A standard social media policy should include:

  • a definition of inappropriate use;
  • details of the employer’s expectations in relation to social media use in the workplace;
  • a warning that comments made in private accounts out of hours may result in disciplinary action;
  • reiteration of obligations around the use of confidential information;
  • consequences of inappropriate social media use.

If you think your business could benefit from a social media policy, contact the employment law team at Everingham Solomons where Helping You is Our Business.

Click here for more information on Rebecca Greenland.

Do you know about the Paid Parental Leave scheme?

jmhThe Government-funded Paid Parental Leave scheme (PPL scheme) commenced on 1 January 2011. From 1 July 2011, employers have been required to facilitate the payment of paid parental leave (PPL) through their payroll.

Who is eligible?

Employers are not responsible for determining whether a person is eligible; the assessment is completed by the Family Assistance Office (FAO)

In order to be eligible the employee must meet certain criteria, including a carer test and work related tests.

How does it work?

The scheme provides eligible working mothers and initial primary carers of children born or adopted on or after 1 January 2011 with PPL for the duration they are not working, to a maximum of 18 weeks at the national minimum wage.

PPL payments will be paid in ‘instalments’ where possible on the employee’s regular pay day, however an employer is not obliged to make an instalment until they have received the amount due to be paid from the FAO.

Employer obligations

An employer’s obligations include:

  • pay instalments to the employee when the funds have been transferred from the FAO and, where possible, in accordance with the employee’s usual pay cycle
  • not withhold unauthorised deductions
  • comply with all of its other obligations, including those which might arise under an industrial instrument, contract of employment or other law — for example, annual or long service leave.
  • provide a pay slip to the employee in the same manner as usual and in accordance with normal pay slip requirements
  • make and keep records for 7 years for each person who receives PPL pay
  • notify FAO in writing as soon as practicable if any relevant business changes happen — for example bank details, payroll dates, ceasing of business, person ceases to be employed (for example, is made redundant), person returns to work, and if any underpayments or overpayments of PPL instalments occur.

How Everingham Solomons can help

If you think your business could benefit from a Paid Parental Leave policy, contact the employment law team at Everingham Solomons where Helping You is Our Business.

Click here for more information on Jessica Simmonds.

Beware – the Work Health and Safety Act has Commenced

RHG1 January 2012 saw the commencement of the harmonised Work Health and Safety Act. To date, the new legislation to implement a national approach to workplace health and safety has been adopted by the Commonwealth, New South Wales, Queensland, Northern Territory and ACT governments.

The Work Health & Safety (WHS) legislation requires those persons who have a duty to ensure health and safety in the workplace to manage, or at least minimise, risks to workers so far as is reasonably practicable.

This duty applies to the person who is conducting a business or undertaking (a PCBU). A PCBU includes:

– employers

– corporations

– associations

– partnerships

– sole traders

– volunteer organisations that employ workers

The PCBU must ensure the health and safety of workers, and also has a duty of care in relation to customers and visitors to the workplace.

Workers include employees, volunteers, labour hire staff, apprentices, contractors, sub-contractors and work experience students. Workers have a duty to take reasonable care for their own safety whilst at work, and to ensure that their actions in the workplace do not detrimentally impact on the health and safety of others.

In order to satisfy the new legislative requirements, PCBUs should develop work health and safety policies and procedures. However developing a policy will not of itself ensure compliance with the WHS Act – PCBUs must ensure that workers are trained in work health & safety matters and comply with the strategies adopted by the PCBU.

Is your business compliant with the WHS legislation?

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from provision of written policies, advice regarding termination of employees and redundancy, contracts of employment and warning letters, to the application of the Modern Awards, because Helping You is Our Business.

Click here for more information on Rebecca Greenland.

Put A Halt To Sexual Harassment In The Workplace

RHGNo-one, man or woman, should be subject to harassment of a sexual nature in any circumstances and particularly not in the workplace.

Whilst notions of equality and commonsense should dictate that sexual advances in the work environment are not condoned, unfortunately sexual harassment by both employers and co-workers remains problematic in Australian businesses.

Obviously the emotional and health effects of sexual harassment impact severely on the victim. But rarely do employers expect a sexual harassment claim to affect their business.

Employers need to be aware of the ramifications of an employee bringing a claim for sexual harassment, and should take positive steps to prevent an incident occurring in the workplace.

It is vital that all businesses have a harassment policy in place, preferably in conjunction with anti-discrimination and equal opportunity strategies.

Employers need to ensure that not only is a policy in place, but that complaints regarding sexual or any other form of discrimination are dealt with in a confidential and responsive manner, and that all grievances raised are adequately addressed.

Unfortunately many instances of sexual harassment result in the victim’s employment being unfairly terminated. In such a situation, the employer can expect OH&S implications to flow from a failure to create a safe working environment, together with an unfair dismissal or unlawful termination claim being filed by the employee.

A breach of the general protections grounds under the Fair Work Act (which include sexual discrimination and filing of a complaint) can result in the employee being awarded compensation, together with the employer being fined up to $33,000 for a corporation or $6,600 for an individual, for each offence.

It is therefore important that employers have the necessary written policies in place to comply with their legislative obligations.

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from provision of written policies, advice regarding termination of employees and redundancy, contracts of employment and warning letters, to the application of the Modern Awards, because Helping You is Our Business.

Click here for more information on Rebecca Greenland.

Facebook Rant Leads to Termination

MKG-newThe growth of social media creates problems for both employers and employees alike.  The lines between what happens inside and outside work have become blurred especially now that so much work happens outside the confines of the four walls that used to be well defined as the ‘workplace’.

Fair Work Australia, in a recent case, upheld the decision of the employer to dismiss a retail worker for his Facebook rant.  The worker was employed by a large retail store and was paid by commission.  He was allegedly not paid properly on three occasions.  The first two occasions the problem was rectified.

On the third occasion however the problem had not been rectified so the worker jumped onto his Facebook account and his update was along the lines of that his employer was useless and he also said “they are going down tomorrow” which Fair Work Australia took as a threat.

The worker had 70 Facebook friends, 11 of which were work colleagues.  Needless to say the employer found out pretty quick smart and took a dim view of the posting.  The employer determined that it was a threat against the operations manager and was also a breach of its policies and procedures.

The worker lodged an application with Fair Work Australia claiming that he was unfairly dismissed.  Fair Work Australia found that the employer had justifiably dismissed the worker.  On the point of Facebook and whether the employee’s argument that it occurred away from work, and whether that had any merit, the member of Fair Work Australia said ‘The fact that the comments were made on the (employee’s) home computer, out of work hours, does not make any difference.  The comments were read by work colleagues and it was not long before the (employer) was advised of what occurred.  As the employer has said, in my view, the separation between home and work is now less pronounced than it once used to be’.  Another salient fact in this case was that the employer had a policy dealing with harassment and bullying.  Although it would have been preferential for it to also have a policy dealing with Facebook, given the uncontested facts in the matter, it was unnecessary.

At Everingham Solomons we can help you with all such policies and procedures and have packages dealing with all aspects of employment because Helping You is Our Business.

Click here for more information on Mark Grady.

Off-Setting Modern Award Obligations

jmhModern awards have covered most workplaces from 1 January 2010. A common misconception is that paying above award rates will automatically release an employer from compliance with award obligations. Unfortunately, it is not that simple.

Awards govern more conditions than just pay rates, for example, rostering arrangements, allowances, and shift penalties. An employer needs to take positive steps to comply with, vary, or exclude the operation of these and other award conditions.

A breach of award conditions can attract civil penalties of up to $33,000 for a corporate employer and individuals involved can also be penalised up to $6600 for each breach.

Off-setting arrangements

As a general principle, over-award payments can only satisfy entitlements to which the payment is directed. For example, paying a higher hourly rate than the modern award rate of pay will not necessarily off-set penalties or loadings in the modern award, unless it is clear that the parties intended it to do so.

In view of this, a good starting point is to include a ‘set-off’ clause in your employment contracts.

Individual Flexibility Arrangements

This type of clause can be complemented by entering into an Individual Flexibility Arrangement with a particular employee in order to vary the effect of the application of certain terms of the award (e.g. overtime, allowances, loading).

Whether you are an employer or employee, Everingham Solomons will be more than happy to assist you with any employment queries because Helping You is Our Business.

Click here for more information on Jessica Simmonds.

Workplace Bullying

RHGEmployers are entitled to direct and control how employees carry out their work and to provide feedback on employee performance. But employers (and senior employees) should be mindful not to “let the power go to their heads” and tip the scale from constructive criticism to workplace bullying.

Workplace bullying can be difficult to define, but is generally classified as repeated unreasonable behaviour that threatens, intimidates or humiliates a person in the workplace and usually has negative effects on the bullied persons’ health and safety.

Bullying can be quite overt, such as physical assault or being demeaned and patronized in front of colleagues. However, it is common for the bullying behaviour to be subtle and only directed at the victim out of the hearing of others in the workplace.

The perpetrators of bullying usually employ the less overt techniques of trivial criticism, lack of acknowledgment, isolation, withdrawal of work and setting of unrealistic targets in order to ‘fly under the radar’ whilst fulfilling their own misguided desire to wield power or play puppetmaster.

Employees affected by bullying suffer from stress and anxiety, loss of self esteem and feelings of isolation at work. Apart from the negative health & well-being effects on the employee, a worker who is the subject of bullying will not be operating to their full working capacity which in turn affects the profitability of a business.

Employers should be mindful of the ways in which the incidence of workplace bullying can be reduced, including:

  • developing a workplace bullying and harassment policy, as part of an overall OH&S policy.
  • educating employees as to what constitutes unacceptable behaviour, and encouraging respectful behaviour in the workplace
  • being responsive to allegations of bullying by providing avenues for employees to make complaints (without suffering ramifications for whistleblowing)
  • monitoring the workplace for signs of bullying behaviour (such as employees taking excessive amounts of leave)

Employers need to be aware that in some cases, depending on the nature of the harassment, employees can commence legal action against their employer for failing to prevent bullying in the workplace.

It is therefore important that employers have the necessary policies in place to prevent bullying and create a safe & productive workplace environment.

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from policy updates to termination of employees, contracts of employment to redundancy correspondence, warning letters to application of the Modern Awards because Helping You is Our Business.

Click here for more information on Rebecca Greenland.

Significant changes to O H S Law

On 7 June 2011, the Work Health & Safety Act 2011 became law in NSW. The WHS Act repealed the Occupational Health & Safety Act 2000 and made three significant changes to the old law.

First, the new Act does away with the reverse onus of proof, which under the old law, meant, in effect, that all the prosecution had to prove was a work accident and then the onus shifted to the defence, which had to prove that  the actions, that might have been taken to avoid the accident, were “not reasonably practicable”.  This statutory reversal of the onus of proof was an assault on that principle of English criminal law, which Rumpole called the “golden thread”,  namely that the prosecution must prove beyond reasonable doubt every single element of the crime charged and the defence does not have to prove a thing.  Under the new Act, the prosecution must prove all of the elements of the offence including that the measures, that are asserted should have been taken to avoid the accident, were reasonably practicable. This will be easy if the risk of the accident was obvious e.g. unguarded machinery but, if the risk was not obvious, then the prosecutor will have to think twice about the evidence required.

Secondly, the new Act does away with the provisions which deemed as guilty officers of a guilty corporations.  In their place are provisions imposing upon officers a duty to exercise all due diligence.  The definition of officers is the same as the Corporations Act.  Exercising due diligence includes taking steps to have knowledge of OHS matters, understanding hazards, ensuring that they are eliminated and the like.  Some insurance companies offer cover for fines imposed on officers for OHS breaches but lawyers suggest that there are public policy difficulties about this because it is analogous to arranging for one person to do the time for another person’s crime.

Thirdly, the new Act does away with a trade union secretary’s right to prosecute an employer for an OHS breach. Not surprisingly, there was hot debate from the Opposition in the NSW Parliament about this change and the Government was always going to have its way.

Will the changes to OHS law make work places safer or affect the frequency of prosecutions or make it easier to defend a prosecution?  The answer is, as the late Zhou En-lai, formerly Premier of China said, when asked what effect he though the French Revolution had had on the course of European history:  “Too early to say”.

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace issues from OHS obligations, contracts of employment and policy updates to termination of employees, redundancy correspondence and warning letters because Helping You is Our Business.

Click here for more information on Mark Johnson.

The Employment Contract Checklist

jmhMany employers use employment contracts that are out-dated, or may not have employment contracts for their staff at all. Are the employment contracts your business uses up to scratch?

Employers need to ensure their employment contracts comply with the current legal requirements. This means contracts need to be compliant with the National Employment Standards and the applicable Modern Award.

The National Employment Standards provide for minimum entitlements, such as hours of work, leave entitlements, flexible working arrangements and more.

For example, Business Pty Ltd is employing a new full-time administrative assistant. All Business Pty Ltd’s full-time staff work a 40 hour week. Business Pty Ltd has been using the same style employment contract since 2003. The employment contract states that the new administrative assistant must work 40 hours per week, and anything more than that is considered overtime.

Business Pty Ltd hasn’t realised that the National Employment Standards provide that full-time employees are to work a maximum of 38 hours per week. While an extra 2 hours work per week will likely be considered to be ‘reasonable additional hours’ which the employer may reasonably ask the employee to work, the appropriate award overtime provisions will apply to those 2 hours.

For example, if the new administrative assistant will be covered by the Clerks – Private Sector Award, then he or she will need to be paid time and a half for those extra 2 hours of work every week.

Business Pty Ltd needs to ensure that their employment contract is amended to meet these minimum requirements.

So, are the employment contracts your business uses up to scratch?

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from contracts of employment and policy updates to termination of employees, redundancy correspondence and warning letters because Helping You is Our Business.

Click here for more information on Jessica Simmonds.