Planning a Christmas shutdown? Plan ahead
Is your business shutting down for the Christmas period?
Employers are obliged to provide impacted employees with at least 28 days’ written notice of a temporary shutdown.
In addition, any requirement for an employee to take annual leave during a shutdown period must be reasonable.
Non-compliance could leave your business exposed to paying its employees even when your business is closed.
Jury service
Employers, do you have employees going on jury service? Here’s a heads up.
When an employee is required to undertake jury service, they are entitled to paid community service leave. Whilst the employee will receive jury service pay from the government, the employer is required to make up the difference between what the government pays and the employee’s ordinary pay.
Under the Fair Work Act, an employer is required to make up the difference in the employee’s pay for a maximum of 10 of the employee’s working days, however State legislation in some instances requires an employer to make up the difference between the employee’s jury pay and their ordinary pay for longer.
Termination letters – don’t let the basics bring you down
Too often we see employment termination letters which do not specify a reason for the termination.
If you are not specifying the reason for dismissal in your letters of termination, you are probably exposing your business/employer to risk.
Not specifying the reason/s for termination in writing, increases the risk of dismissal-related claims (or in the very least makes the defence of them more difficult), as it leaves the door open for employees to allege that the dismissal was in breach of anti-discrimination or general protections laws.
Looking to temporarily replace an employee who is going on parental leave?
We often see employers make mistakes with this.
Employers should know that employees taking parental leave in accordance with the Fair Work Act are entitled to a “return to work guarantee”. That guarantees that upon completing the leave the employee will return to their pre-parental leave position, or, if that position no longer exists, an available position for which s/he is suitably qualified and suited and nearest in pay and status to the pre-parental leave position.
When recruiting a replacement to fulfil the duties whilst the employee is on parental leave, the employer must inform the replacement employee that: their engagement is temporary; and that the employee on leave has a guarantee to return to work when the leave ends.
Employers should also inform the replacement employee of the rights of the employee on leave in the case of a stillbirth or infant death, or where they cease to have responsibility for the care of the child.
Let’s talk notice of termination.
Are your employment contracts silent, or less than definitive, when it comes to the amount of notice to be given to employees?
Employees can bring a claim for “reasonable notice” when their employment is terminated and the employment contract is silent, or not definitive, as to the period of notice of termination (and when an Award or enterprise agreement providing for notice does not apply).
As to what period of notice is “reasonable notice”, that is determined by the Courts and can be 12 months or more in some circumstances – and that’s a lot of potential damages (not to mention the legal and other costs!) for an employer to pay for an issue that could easily have been avoided.
So, it is a very good idea for employers to ensure that their employment contracts clearly state and define what the termination notice period is to be.
Let's talk public holidays.
With numerous public holidays looming (we’re looking mostly at you, Victoria…), a few refresher points for employers about hashtag #publicholidays
Where an employee (except, generally, a casual) would be at work on a day if the day was not a public holiday, the employer usually must pay to the employee the base rate of pay for the employee’s ordinary hours of work on that day.
Employers can request that employees work on a public holiday.
Employees can refuse an employer’s request that they work on a public holiday if the request is not reasonable, or if their refusal is reasonable. The reasonableness (or not) will be determined by looking at things like:
- how much notice the employee was given about having to work on the public holiday (employers should certainly give notice to employees sooner than later);
- whether the employee had an expectation that they may need to work on the public holiday (employment contracts can be very helpful here);
- the employee’s personal circumstances and any family responsibilities they have;
- whether the employee would receive remuneration for the day which would adequately reflect an expectation of work on a public holiday; and
- the nature of the employer's business (e.g. would the business need to close if the employee did not work on that day).
Subject to generally limited exceptions, where an employee works on a public holiday, they will be entitled to be paid penalty rates (although check your Award, EA and/or contract of employment for any ability to deal with it differently, such as through substitution of the day for another – but do bear in mind that this could affect the reasonableness elements insofar as the remuneration aspect is concerned, see above).
Employer protection of confidential information
Confidential information (which includes things like client/customer/supplier lists, sales/pricing information, certain business methodologies, financial information etc) is often a business’ biggest asset.
Litigation (which is reactive) is rarely an ideal solution to protecting confidential information from misuse by former employees. Proactivity and pre-emptive action will usually be a better solution. Pre-emptive action toward protecting confidential information involves ensuring that properly prepared employment contracts (with clauses legally reviewed to ensure maximum effect) and policies exist (and that the day-to day practices of your business align with the policy expectations). It also involves your IT systems and processes being able to trace the dissemination of information and to monitor things like printing and external device and cloud activity.
Abandonment of employment
Employer rights in this regard are often misunderstood.
An employee being absent from work without authorisation or approval or without supplying a reason, does not of itself entitle an employer to dismiss an employee for having “abandoned” their employment.
Even where an Award would seem to condone it, employers will be putting their businesses at risk if they dismiss an employee for abandonment without first taking a number of key steps, including having made genuine attempts to contact the employee to understand the reason/s for non-attendance.
Garden leave
If you employ senior or sales staff and are not using “garden leave”, you probably should be.
Employers can place employees on garden leave after notice of termination or a resignation has been given. Often misunderstood, garden leave is leave in lieu of an employee working during the notice period and it prevents the employee not only from liaising with clients and stakeholders and accessing confidential information, but also from working elsewhere during that time.
Importantly, employers can only properly use garden leave where an employment contract specifically enables it.
Reasonable additional hours
We are often asked about “reasonable additional hours”.
Full time employees can refuse to work more than 38 hours per week if the additional hours are “unreasonable”.
What constitutes “reasonable additional hours” is not always easily determined and there is no “one-size-fits-all” answer.
Some factors which will determine whether additional hours are reasonable include: an employee’s family responsibilities; any averaging terms in an Award/Enterprise Agreement; OHS considerations; and any other factor which might offset any unreasonable impact upon the employee, such as high remuneration.