Free Employment Law Papers and Resources

Employment Contracts

• Issues to cover in an employment contract.
• Links to Fair Work Act resources.

Dress Standards

• Can employers set standards of dress?
• What can you do if an employee does not dress appropriately?
 

Fair Work Act

• What is an adverse action?
• Discrimination.
• Unfair dismissal.

 

 

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From “Hi” to “Goodbye”
How to protect your business ...

Finding a good employee can be a real challenge. However, once an offer of employment has been accepted, the most important point in the hiring process has arrived. At this point, employers should ensure that all aspects relating to the candidate’s employment are clearly understood.

A written Contract of Employment provides legal protection and guidelines for both employers and employees. The Contract should be agreed upon by both parties at the outset. Trying to correct misunderstandings about employment conditions after employment has commenced can be difficult and time consuming (and is certainly best avoided ).

Relying on verbal agreements made during the interview process is a huge mistake. This unwise practice leaves the employer very exposed.

When writing a Contract of Employment, keep it short and simple. A short, simply written letter will often suffice.

What should you include in a Contract of Employment?

1. Hours of work (including overtime policy);
2. Pay entitlement: Always check whether a new employee is covered by an industrial award. If you are unsure of an employee’s rate of pay, check their entitlement with Fair Work Australia. An employee who is underpaid is entitled to back pay and the employer may be fined.
3. Workplace policies including:
   -computer access;
   -technology;
   -occupational health and safety;
   -intellectual property protection;
   -sexual discrimination;
4. Probationary period (provides employers with flexibility and may protect them from unfair dismissal laws);
5. A non-compete clause (you don’t want to spend time and energy training an employee just to have them leave and set up a similar business of their own just around the corner ) This clause is especially important for small businesses.

Why is the 1st July 2009 important?

New workplace laws will be introduced which change many aspects relating to how businesses dismiss an employee. Small businesses, which have previously been exempted from certain requirements in relation to unfair dismissal, will need to learn how these changes affect them. If you need advice in regards to new unfair dismissal laws (Fair Work Act) we suggest you speak to us. You may find reading our seminar paper called “Fair Work Act 2009 Unfair Dismissal” helpful. There are two versions of the paper, one for employers of less than 15 people, and the other for employers of 15 people or more.

So, whatever industry you are in, make sure that you protect your business from “Hi” to “Goodbye”.

 

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Dress Standards

Can employers set dress standards in the workplace?

Employers in general have the right to set dress and appearance standards at work as long as the requirements are related to the nature of the job, are reasonable in the circumstances, don’t differentiate based on sex, race or age and allow for exceptions for religious and cultural beliefs or people with disabilities. Cases in this area have upheld dress codes when they have been applied fairly and to all employees equally.

What can you do if an employee does not dress appropriately?

As an employer you could be well within your rights to express your concerns with this employee and ask the employee to improve their level of appearance when they are working. Alternatively it may be advisable to consider implementing a dress code for all employees covering these issues and any other appearance related concerns you might have. The benefit of this approach is that it will hold all employees to the same standard and it won’t single out one employee.

 

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Fair Work Act

The Fair Work Act which commenced on 1 July 2009, changed the whole landscape of federal workplace laws. The Act contains well over 600 pages. Following are a couple of the areas covered by the Act.

A new concept called adverse action is introduced. An adverse action is taken by an employer against an employee if the employer dismisses the employee or discriminates between the employee and other employees. Adverse action is taken by an employer against a prospective employee if the employer refuses to employ the person or discriminates against the person in the terms or conditions on which the employer offers to employ the person.

An employer must not take adverse action against a person who is an employee, or prospective employee, because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The Workplace Relations Act contained a similar provision but only in relation to existing employees, not prospective employees. Accordingly, the new Act will bring in a new regime of unlawful discriminatory conduct in the employment area. To date, federal discrimination law has been confined to race, sex, age and disability when the employing a person. Other areas have been proscribed under the Australian Human Rights Commission Act but the Commission has had limited power to impose sanctions where breach has occurred.

Essentially the same exceptions appear in the new Act as already found in the Australian Human Rights Commission Act. That is, adverse action is not prohibited if it is taken because of the inherent requirements of the particular position concerned or if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed where the action is taken in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.

We recently successfully argued the applicability of these exceptions where a complaint of failing to employee a person on the basis of their religion was made under the Australian Human Rights Commission Act against a faith-based educational institution. However, there are many potential difficulties in establishing in a particular case that the exceptions apply. Those educational institutions which feel that the exceptions apply to them ought to conduct a detailed audit of their constitutional documentation, policies and procedures to ensure that everything is in place to argue the exceptions should the need arise. Once a complaint is made, it will be too late to do so.

The Fair Work Act also reintroduces to the Federal scene an unfair dismissal regime. Most employees at educational institutions covered by the new Act will be protected from unfair dismissal once they have completed six months' employment. A person is unfairly dismissed if Fair Work Australia (FWA) is satisfied that:

1. the person has been dismissed; and
2. the dismissal was harsh, unjust or unreasonable; and
3.  the dismissal was not a case of genuine redundancy. 

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account all these things: 

1. whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees);
2. whether the person was notified of that reason;
3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
5. if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal;
6. the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal;
7. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Basically, these factors are all designed to ensure that procedural fairness is afforded to the employee or, as the Act puts it elsewhere, that "a fair go all round" is given to both employer and employee.

If you have further queries, feel free to contact us. You may find our seminar paper called “Fair Work Act 2009 Unfair Dismissal” helpful. There are two versions of the paper, one for employers of less than 15 people, and the other for employers of 15 people or more.

 

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