March 9, 2018

8 common facts about employment law for employers

When it comes to employment, a lot of what employers and employees believe myth, hearsay or out-of-date information. Some of these “facts” are very often wrong.

To help you cut through the noise, we set the record straight on “eight most common employment law alternative facts”.

‘Fact’ 1: An employee earning more than the high-income threshold can’t bring an unfair dismissal claim.

The reality: The high-income threshold – currently $138,900 exclusive of super – can be overridden in terms of the modern Award or enterprise agreement. So, if an employee is entitled to bring an unfair dismissal claim, it may not matter what they earn. They can still bring a claim.

‘Fact’ 2: Once an employee has worked six months they’re out of probation and can bring an unfair dismissal claim

The reality: A probationary period gives both an employer and employee the chance to assess each other, their role and ensure they’re a good long-term fit. Under the Fair Work Act, all employees serve a six month probation period – although it’s called a qualifying period. During the qualifying period, employees can’t bring an unfair dismissal claim; and for employees of smaller businesses – with less than 15 staff – this qualifying period lasts 12 months, regardless of what their employment contract says about their probation period. So small business employees can only usually bring an unfair dismissal claim after they’ve been employed for a full year.

‘Fact’ 3: An employee can’t bring a workers’ comp or bullying claim if they’re being performance managed

The reality: While an employee can’t bring a claim over “reasonable management action conducted in a reasonable manner”, bullying behaviour doesn’t fit into this category because it’s not reasonable. Similarly, a worker who ends up suffering from anxiety or depression after a bad performance review may still succeed with a claim if they can show their employer didn’t act appropriately.

The important thing here is that, even if an employer is legitimately managing someone’s performance, they need to do it in a reasonable manner. If you need help determining what constitutes “reasonable”, get in touch.

Fact’ 4: Employment contracts need to be in writing, and verbal agreements don’t count

The reality: An employment contract can be verbal, in writing, or a mix of both.

Here’s a tip though, the less that’s written down, the messier – and more expensive –  any potential claim is likely to get. So always put it in writing where you can.

‘Fact’ 5: Employers always have to accept an employee’s medical certificate

The reality: There are some circumstances where employers are entitled to question an employee’s medical evidence within reasonable question. This may include asking questions of the employee’s treating doctor or even requesting an independent medical examination.

‘Fact’ 6: Employers need to give employees three warnings before dismissing them

The reality: Every case is different. A lot depends on the employee’s conduct and the circumstances surrounding it. For instance, if a worker engages in serious misconduct they can be dismissed summarily, or without notice. The most important thing here is to follow your internal policies, and ensure your actions are “reasonable”. If you don’t have any internal policies, call us now.

‘Fact’ 7: Employers no longer have to give notice of termination in writing

The reality: Yes, they still do, although what constitutes notice in writing is evolving. For instance, in one recent case the Fair Work Commission found an employer had satisfied this requirement, when they sacked the employee via SMS.

We’d never advise an employer to take it to that extreme (and of course in these situations context can be crucial). But what’s clear is that “notice in writing” no longer necessarily means a signed and sealed letter.

‘Fact’ 8: Employers need to give written warnings

The reality: Although notice of the termination needs to be in writing, strictly speaking, the warnings leading up to the dismissal don’t have to be.  However, the recommended option would be a written warning.  Most importantly, they’re much better as evidence if the matter ever ends up in a court or tribunal. They also mean that the employee can have no doubts about what your expectations are. Ideally, have the conversation (and keep a file note), but also get the warning down in writing and give it to the employee as soon as possible after your conversation.

Want to know more?
The reality of employment law is that it’s complex, circumstantial, and ever-changing. So if you’re not certain about where you stand be sure to get in touch.

say hi to our author

Merilyn founded Catalina Consultants in 2012 on the belief that all organisations, regardless of size, should have access to top quality bespoke HR services. She enjoys working closely with her clients and believes that the best results are built on relationships of rapport, trust and authenticity. Growing up, Merilyn had her sight set on stardom and dreamed of becoming an actor. She also sang and played the piano, but ended up studying accounting and HR. Whilst she hasn’t won her Grammy just yet, she still loves a good karaoke night. Merilyn loves to travel with her family, with South Africa being one of her most memorable destinations.

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