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Q&A

Here we share some of the most interesting questions that come through the Helpdesk service from subscribers. Please note: All identifying details are removed for reasons of confidentiality.

Through the Helpdesk, you can ask any general employment law queries that you can’t find an answer to in your handbook, and our experts will give you an answer. Whether your query is about recent legislative changes, or the steps you need to take to protect yourself, our team of experts is ready to answer your questions.

January 17, 2020 on topic Time-limited employment contracts
Must an ongoing employment arrangement continue, even if the contract has ended?

We currently have an employee who was employed under a 2-year agreement that ended over a year ago. While the agreement was not renewed, the employment has continued unchanged. Can we now terminate the agreement despite the employment having continued?

A.

Upon the expiration of a fixed or maximum term contract, the contract ceases to operate. If the employment relationship continues after expiration of that term, there will be uncertainty as to the terms of the employment relationship. It is likely the terms will be the same as the time limited contract.

If the employment is terminated, you risk exposure to an unfair dismissal claim being made against you.

Is there a time limit for an employee acting in a senior role?

We require one of our employees to fill a more senior role temporarily but we are not certain how long it will be required. While they are acting in the role, they will be paid the remuneration required for the more senior position. Is there a time limit on employing an existing employee to a more senior role in an acting/temporary basis before we are obliged to offer them the position permanently?

A.

Generally, you can have an employee acting on higher duties for an indefinite period of time, so long as they are receiving the applicable higher rate of pay.

You should also be aware that awards often contain clauses regarding ‘higher duties’. For example, clause 30 the Building and Construction General On-site Award 2010 provides: “An employee engaged for more than 2 hours, during 1 day on duties carrying a higher rate than the employee’s ordinary classification, must be paid the higher rate for the whole day. Otherwise the employee must be paid the higher rate for the time so worked”.

What is the role of a support person?

Can you please provide clarification regarding the role of a support person during disciplinary meetings? I understand a support person should not advocate on behalf of an employee; however, if the employee brings in their union representative or lawyer, are they allowed to advocate? Or are they only there for emotional support?

A.

Generally, the role of a support person is to provide an employee with any support required during a meeting. This may include taking notes, and providing the employee with emotional support and comfort. The role of the support person is not to participate in a meeting as an advocate on the employee’s behalf.

A support person can be a lawyer, union official, friend or colleague who is present with the participant during the interview. Ideally the support person will not be another employee, for reasons of ensuring absolute confidentiality. However, this may be unavoidable.

Do part-time employees accrue annual leave on overtime?

Our permanent part-time employees occasionally work extra hours where needed, for example, to cover for another employee on personal leave. Do they accrue annual leave on these extra hours?

A.

Part-time employees only accrue annual leave on their ordinary hours of work, not work done overtime.

June 17, 2019 on topic Annual leave entitlements
What happens if an employee falls ill while on annual leave?

If an employee is sick for 3 or more days when on annual leave, and provides a doctor’s certificate to this effect, does the employer have to record the leave as personal leave rather than annual leave? If the illness occurs during long service leave, does the employer have to record the leave as personal leave rather than long service leave?

A.

Under the FW Act, an employee is taken not to be on annual leave for each day they are eligible for personal leave. You should record personal leave not annual leave for any of these days.

As to long service leave, the answer depends on the source of the entitlement. If the source is the Long Service Leave Act 1987 (SA) then the answer is no, long service leave must be taken in one continuous period so the employee does not have a right to break that period with personal leave.

What can we do if an employee takes unauthorised annual leave?

An employee has requested leave – with short notice – that their manager cannot approve as there are already three other team members on leave at the same time. The employee has told their manager that they have plans for those days that they cannot cancel. They also stated that if the leave is not approved, the employee will “take sickies anyway”.

Our current leave policy clearly states that annual leave requests will be considered based on operational requirements and key staff availability – and that approval must be obtained prior to taking annual leave. I intend to review and update our policies, including a requirement that if a leave request is not granted, an employee will be considered to be on unauthorised leave and it will therefore, be unpaid.

Can I enforce this now even though the policy does not include this requirement yet? What recourse do we have for employees who take the unauthorised leave?

A.

It might be difficult to put the employee on unpaid leave, unless there is something in the employee’s contract, workplace policy or award/enterprise agreement which states that you can do so.

As you have stated, annual leave must be taken at a time mutually agreed between the employer and employee, though an employer cannot unreasonably refuse to grant an employee’s leave request. In this situation, given the inadequate notice and the employee’s full schedule it might not be unreasonable to refuse the leave.

Your next steps depend on whether you want to retain the employee or dismiss them, and whether you can grant the leave or not. If you don’t want to terminate their employment, we suggest you meet with them (followed by providing it in writing) informing them of the failure to follow proper procedure, informing them of the correct procedure they must take next time and that they cannot demand leave from you. You may want to issue a warning.

You can also state that if the employee proceeds to take the leave, they will be disregarding a lawful and reasonable direction, and that failing to return to work may be grounds for dismissal. Then if the employee does not return to work, you may have grounds to dismiss them.

The employee’s avenues to challenge the dismissal are unfair dismissal (assuming he has unfair dismissal protection) or adverse action (i.e. that you dismissed them for taking leave). You may want to seek legal advice about taking steps to reduce your exposure to these potential challenges.

Is there a time limit for an employee acting in a senior role?

We require one of our employees to fill a more senior role temporarily but we are not certain how long it will be required. While they are acting in the role, they will be paid the remuneration required for the more senior position. Is there a time limit on employing an existing employee to a more senior role in an acting/temporary basis before we are obliged to offer them the position permanently?

A.

Generally, you can have an employee acting on higher duties for an indefinite period of time, so long as they are receiving the applicable higher rate of pay.

You should also be aware that awards often contain clauses regarding ‘higher duties’. For example, clause 30 the Building and Construction General On-site Award 2010 provides: “An employee engaged for more than 2 hours, during 1 day on duties carrying a higher rate than the employee’s ordinary classification, must be paid the higher rate for the whole day. Otherwise the employee must be paid the higher rate for the time so worked”.

January 17, 2019 on topic Changing the location of a workplace
Does relocation lead to redundancy?

We are relocating our premises that will result in some staff having to travel over 2 hours to and from work by public transport. Based on this relocation, will their roles be genuinely made redundant? We are considering offering voluntary redundancy but don’t want to create an avalanche of employees wanting that. Can we offer voluntary redundancy to specific people only?

A.

A role can be made redundant due to a change in location that the role is to be performed, but there are a number of factors to take into account, including whether additional pay was offered to compensate for additional travel time and cost.

If the refusal to accept the change – the relocation – is unreasonable, an employer who obtains acceptable alternative
employment for an employee who would otherwise be entitled to redundancy pay, may apply for an exemption. However, an exemption would most likely be unsuccessful if the offer of redeployment was for a lesser position and/or lower wage because it would not be considered acceptable alternative employment.

Can we ‘downgrade’ an employee’s role?

We have an employee who works in administration in a permanent part-time position. Management wishes to move her to a casual position in another department (of lesser ‘status’). Are we are within the law to make this change? If it is allowed to be done, what are the requirements?

A.

We would only suggest making this change if the employee freely agrees to it.

If the employee consents, we suggest taking the following steps:

  1. Obtain written agreement to change the status of employment.
  2. Terminate the part-time employee’s existing employment, and pay out leave and any other entitlements owed.
  3. Provide a new employment agreement.

If the employee does not consent, changing them from permanent part-time to casual may open you up to possible unfair dismissal, discrimination or general protections claims.

Can we demote a foreign worker for poor performance?

Am I able to demote an employee on a 457 visa by reducing his salary for poor performance?

A.

A demotion will be considered a dismissal where it involves a significant reduction in pay or duties. If this is the case, the employee must consent to the demotion.

It is generally advisable to performance manage an underperforming employee and give them a genuine chance to improve before taking further measures. If their performance does not improve, you can inform the employee that you consider you have the right to dismiss them, and ask if they will consent to a formal warning and demotion.

If the underperformance is serious enough, and you have given proper warnings to give you a right to terminate the employee’s employment, you should be able to reach agreement about demotion rather than terminating employment. You should not, however, threaten dismissal if they don’t agree to the demotion.

You should contact a lawyer if you are concerned about your potential liability.

January 13, 2020 on topic How to avoid discrimination
Can we dismiss someone who is a poor cultural fit?

We hired a new employee 3 months ago who, while performing their duties well, is not a good cultural fit in the workplace. Can we dismiss them for this reason? If so, what do we write for this in the employment termination letter?

A.

It depends what you mean by ‘cultural fit’. The employee will not have met the eligibility for an unfair dismissal claim, but you still cannot dismiss an employee for reasons of age, race, gender, religious belief or political belief (among others). If you just cite ‘cultural fit’ as a reason for dismissal, the employee may bring a discrimination claim against you, asserting they were dismissed for one of these prohibited reasons. You need to assess the likelihood of this occurring as well as your ability to defend a potential claim (i.e. you have evidence, of which the termination letter will form part, that the termination was for a reason other than the protected attribute). It is always best to cite valid, performance or conduct-based reasons in the employment termination letter.

We suggest you seek specific legal advice before terminating the employee’s employment.

Are prospective employees entitled to reasonable adjustments?

I understand that an eligible employee needs to be employed for 12 months prior to requesting a flexible work arrangement. However, how does that impact the situation in a recruitment process when a candidate with a disability applies for a role and requests a reasonable adjustment?

A.

Flexible work arrangements and the right to request your employer to make reasonable adjustments to accommodate a disability are two separate legal entitlements.

As you correctly note, an employee has the right under the Fair Work Act 2009 (Cth) (FW Act) to request a flexible work arrangement after they have been continuously employed by the same employer for 12 months. The request must be due to certain circumstances listed in the FW Act, one of which is that the employee has a disability.

Under the Equal Opportunity Act 2010 (Vic), employers must make reasonable adjustments for any person with an impairment to whom they have offered a job who requires adjustments in order to perform the genuine and reasonable requirements of the job. An impairment is defined in s 4 of the Act, and includes any physical, mental or psychological disability.

Unlike the right to request a flexible work arrangement, no minimum amount of continuous service applies.

Note also that is also unlawful discrimination to elect not to offer employment to an applicant because they have a disability.

Can we dismiss a driver who has lost his licence?

One of our drivers was driving a company vehicle when he incurred driving infringements that have resulted in him losing his licence for 3 months. Can we dismiss him?

A.

Assuming this employee would have access to unfair dismissal laws if dismissed, you would need show that you had a valid reason for dismissal and gave him a reasonable opportunity to respond to that matter before proceeding with dismissal. The reason for dismissal might be that he can no longer can fulfil a key requirement of the job. An alternative basis might be that he has committed misconduct in incurring the offences using a company vehicle and at work. We are unable to give conclusive advice about this matter, but it would appear the first reason would be easier to justify. It is important however that you give him a proper opportunity to respond to the reason before you proceed to dismiss. You will need to comply with any contractual requirements for dismissal, including in respect of notice.

What can we do if an employee makes repeated complaints?

An employee has overtly and repetitively stated (verbally and in writing) that they do not agree with or support the organisation’s management structure, strategy, operational practices and mission. However, despite written responses – and investigations into these allegations where necessary – the employee continues to restate their position. However, the employee does want to continue working for the organisation. Would the repetitive complaints constitute repudiation of contract? Or is there an alternate avenue for us to take as the employment trust relationship is broken and unrepairable.

A.

You should seek specific legal advice so your lawyer can look at the employment contract and gain further instructions of the conduct. However, generally speaking it may be difficult to argue that the employee has repudiated the contract if they continually state that they want to continue working for the organisation. There may be ways to warn the employee (and eventually dismiss) if they continue to raise their complaints about the organisation but you would need to seek specific legal advice as it is not necessarily a straightforward process – you’d need to give them a lawful and reasonable demand to cease the conduct, warn them of the potential ramifications of continuing the criticisms, and potentially dismiss for misconduct, while conducting all of the above in a procedurally fair fashion to mitigate general protections and unfair dismissal liability.

January 17, 2020 on topic Time-limited employment contracts
Must an ongoing employment arrangement continue, even if the contract has ended?

We currently have an employee who was employed under a 2-year agreement that ended over a year ago. While the agreement was not renewed, the employment has continued unchanged. Can we now terminate the agreement despite the employment having continued?

A.

Upon the expiration of a fixed or maximum term contract, the contract ceases to operate. If the employment relationship continues after expiration of that term, there will be uncertainty as to the terms of the employment relationship. It is likely the terms will be the same as the time limited contract.

If the employment is terminated, you risk exposure to an unfair dismissal claim being made against you.

Should an employee sign a position description and any subsequent change to it?

Should an employee sign a position description and any subsequent change to it? Does the position description form part of the contract of employment even if there is a disclaimer on it saying it doesn’t?

A.

The signature of employees on their position descriptions do not generally have significant legal effect. It merely shows that they acknowledge the contents of the position description.

A position description will not form part of the contract of employment if there is a disclaimer that excludes it from the contract. It would be useful to include a term in the contract that:

a. excludes the position description from the contract; and

b. gives the employer the right to vary the position description.

February 17, 2019 on topic Contracts for permanent employment
Can we change the notice terms in our employment contracts?

Can we change a number of our employees’ employment contracts from requiring a 4-week notice period to requiring a 2-week notice period to be in line with our standard contract terms? Can we do this with an addendum/appendix to their contract and signed by both parties?

A.

You can alter your employees’ contracts (either by issuing new contracts or via an appendix) to make them more consistent with your other contracts, however they would need to consent to the alteration. If they did not, you couldn’t unilaterally alter your employees’ contracts.

June 17, 2019 on topic Optional terms and clauses
Can we refuse dated expense claims?

An employee who left the company recently has unclaimed expenses dating back 2.5 years. During his employment, he was asked many times to submit his claims, but he failed to do so. About 6 months ago, our company implemented a rule that expense claims must be submitted within 60 days. This employee was made aware of the policy. Now that the employee has left the company, he has submitted his expense claims. Can we refuse to reimburse the old ones?

A.

It is unlikely you can refuse to pay the reimbursement, but it will depend on the source of the entitlement (i.e. award, enterprise agreement or contract) and how it is worded. For example, the entitlement to reimbursement for transport for shift workers under the Clerks Award will not expire after 2.5 years or for a failure to submit a claim within 60 days. However, if the entitlement is under contract and the contract states that reimbursements will be made in accordance with the company policy (which requires claims to be submitted within 60 days), the entitlement might expire.

On the whole, it is probably safer to pay the reimbursement regardless. Bear in mind that section 325 of the Fair Work Act 2009 (Cth) (FW Act) contains a prohibition on employers requiring employees to unreasonably spend amounts of their own money.

Can we refuse a request to change work hours?

An employee has requested to work her same hours but spread over 4 days instead of her usual 5 days. This employee does not have any protected attributes. We don’t wish to approve this request as it will have ramifications of inequity for other staff, it will reduce customer satisfaction and we will also require backfill/cover by other staff. Are there any legal issues we need to be aware of by refusing her request?

A.

As you seem to be indicating that the employee in question does not meet any of the circumstances listed in s 65(1A) of the Fair Work Act 2009 (Cth) that would entitle them to make a request for a flexible work arrangement, you are not required to entertain any such request. This is subject to any applicable discrimination laws or other general protections that may apply to the employee’s particular circumstances.

Can an employee return to a pre-parental leave role part-time?

We have an employee due to return from maternity leave soon. Her role is full-time and she has asked to return part-time – two days per week. Her current replacement has stated they would be happy to stay on part-time as well, so we would like to approve this request to create a job-share.

We do however have concerns that if the replacement employee were to leave down the track, we may find it difficult to replace them due to the role being on a part-time basis. Is it possible to include something in the contract that this flexible working arrangement is only possible if we are able to recruit someone to fill the full-time requirement of the position?

A.

You are only able to refuse a flexible work arrangement if you are unable to accommodate the request on reasonable business grounds.

You will need to confirm with your employee whether she is wanting to enter into a flexible work arrangement with the company where she will work part-time, or if she is seeking a permanent variation to her contract. This may have an effect on whether it will be reasonable for the company to refuse to accommodate the request. Regardless of whether the change is intended to be permanent or temporary, the arrangement should be set out in writing and signed by both you and the employee.

Entering into, and continuing, a flexible work arrangement is subject to the company’s business needs. It is also
subject to the employee having ongoing carer responsibilities. Therefore you could potentially agree to the arrangement while the replacement employee is willing to work the other days, and then re-negotiate if they wish to leave and you need to source someone else to complete the days.

There is no set time with how long a flexible work arrangement can continue but you could agree with the employee to specify a time by which she will return to her pre-maternity leave role. You may want to include review dates in the agreement where both you and the employee can give feedback on whether it is a suitable arrangement.

Is it safe to use Uber for work travel purposes?

What health and safety considerations are there in relation to employees using the Uber service for business? We want to make sure we have covered all legal obligations before writing it into our policy that employees can use Uber for business-related travel.

A.

Under health and safety legislation in each state and territory, an employer has a primary duty of care to take all reasonably practicable steps to ensure the health and safety of its workers while the workers are at work which includes when they are in a vehicle travelling for work.

If an employer fails in its health and safety duties and an employee is injured or killed, the employer will be exposed to criminal prosecution and significant penalties. This means you must think about the safety of your employees’ means of transportation in connection with work. Employers must choose the safest option that is reasonably
practicable.

Uber runs a number of different ‘ride-sharing’ services including UberX and UberBlack. These are distinct services with UberX being unregulated, where members of the public directly book and pay for other members of the public to drive them to a location. UberBlack on the other hand requires standard vehicles and licensed drivers.

We are not suggesting that Uber is not safe. However, the UberX service is unregulated, compared to taxi services which are overseen by a specific regulatory body. For example, taxi drivers are required to complete a recent police record check, an accreditation application and knowledge test. Taxis are also required to have a video cameras which record in a continuous loop which is able to be accessed by the authorities if a dispute occurs. Based on this, if you wish to include Uber for business-related travel we would recommend limiting it to UberBlack.

May 17, 2019 on topic Additional hours
Do we have to pay superannuation on overtime?

Do award/agreement-free employees get super on overtime that is not paid at a higher rate?

A.

Super should be paid on ordinary time earnings, which means the ordinary hours worked (i.e. not overtime). However, if ordinary hours of work are not stipulated, then all hours worked will be ordinary hours.

For example, if the award/agreement-free employee is on a contract that provides their ordinary hours are 38 hours per week, and they happen to work 41, then super is only payable on the 38 hours.

On the other hand, if an award/agreement free employee has a contract that does not stipulate ordinary hours, and there is no readily discernible pattern of customary, regular, normal or usual hours, then all hours worked in a week will be ordinary hours of work and all wages are ordinary time earnings attracting super.

Can we direct an employee to undergo a medical examination?

An employee of our company is currently recovering from shoulder surgery, and is on restricted duties and hours. We have had a number of medicals done through the workers’ compensation insurer but due to privacy, they are unable to send us the full reports. The limited information we have received is insufficient for us to make any informed decisions. To assist with this, we would like to send the employee for a medical, including drug and alcohol screening, at our cost. Are we able to do this?

A.

If you have legitimate concerns that an employee’s injury may cause a health and safety risk to themselves or other workers, and the medical information you have so far is insufficient for you to be able to assess that risk, then yes you are able to direct your employee to attend a medical examination at your expense, or to provide you with proper evidence of their fitness to work. We suggest setting out this request in writing and asking for the employee’s consent.

Can we request an employee to attend a medical examination?

When an employee is injured at work, is the employer allowed to direct the employee to visit the company doctor? If the employer does direct this, is the employee able to refuse?

A.

You may have the right to direct an employee to attend a medical examination (at your expense). Whether this direction is lawful and reasonable, and therefore must be followed, depends on whether there is a genuine need for evidence of their fitness to work or there is cause to be concerned that the employee cannot perform the inherent requirements of their role.

Practically speaking, if the employee provides you with medical evidence from their own doctor about their fitness for work, it will be hard for you to say that there is a reason for them to attend your company doctor as well.

For further information, refer to the chapter I1 Ill or Injured Employees in the Employment Law Practical Handbook.

Do we have to keep a job open during an indefinite period of leave?

I have a full-time worker who is currently on suitable light duties due to an injury. His certificate of capacity says he can do suitable, light duties for 2 months. This 2-month period ends in 5 weeks.

This employee has called to advise he needs to go overseas immediately to be with a dying relative and he doesn’t know when he will return.

We are not in a position to be able to hold the position indefinitely. Our company policy states that if an employee is unable to advise a return date from a period of unpaid leave, they are required to resign and can be re-employed when a suitable position becomes available. This employee has
refused to resign.

We have advised our insurance company that he is going overseas and we are not sure what the ruling is in regard to workers’ compensation payments, as he does have capacity to work.

How long must we keep this job open and what are the ramifications in relation to workers’ compensation? Can we claim he has abandoned his employment?

A.

You can’t assume that the employee has abandoned his position. Establishing that an employee has abandoned their employment is a high bar to meet and you would need to be able to show that the employee has not been in communication with you at all before you can declare this. Given this, you could write to the employee seeking more information with regards to their absence and inform them that if they don’t reply within a specified timeframe you will assume they have abandoned their employment.

To terminate the employment, you would need to show that the employee has failed to comply with a lawful and reasonable direction of the company. Accordingly, you could direct him to provide an explanation (and if appropriate, further evidence) of the reason for his absence from work and if he knows when he is likely to be back – also clarifying whether he believes he is on annual leave, personal leave, or unpaid leave. You could then take disciplinary action if he fails to comply. Alternatively, if the employee is covered by a modern award that contains an abandonment clause, this will set out the requirements for terminating the employment in these circumstances.

You may also wish to discuss this with your insurer as to what will occur with further payments.

Given your situation, in particular that he is currently on WorkCover, and that there has been a family emergency, terminating his employment could expose the company to significant liability (discrimination, unfair dismissal, general protections). We would recommend seeking specific legal advice prior to terminating his employment.

December 17, 2019 on topic Engaging independent contractors
Should contractors be using our company email signature?

We are engaging an independent contractor who we would like to use the company email signature. Would you recommend making it clear in the signature that the individual is a contractor and not an employee and if so, do you have a recommendation for how to do this?

A.

It is not unusual for a contractor to use the company signature. However, there is some risk associated with doing this, as you say, that the contractor could be considered an employee. To mitigate the risk, you may wish have their title in the signature followed by ‘Consultant’ or ‘Contractor’, which should make this sufficiently clear both internally and externally that the contractor is not an employee.

October 17, 2019 on topic How long service leave is to be taken
Can long service leave be taken on a pro rata basis?

An employee who has worked part time for us for just over 7 years has asked to take some long service leave. Is she entitled to take pro rata long service leave now?

A.

Your question depends on the source of the long service leave entitlement, which can be under state legislation or an award or enterprise agreement. Assuming the Long Service Leave Act 1958 (WA) is the correct source of entitlement for your employee, that employee is not entitled to take long service leave until they have been continuously employed for 10 years (the pro rata entitlement after 7 years only arises on termination of employment).

September 17, 2019 on topic How to record employees’ accrued LSL
Can an employee take long service and annual leave after ceasing employment?

One of our employees retires on his last working day and will not be returning to work. However, he has requested not to be paid out his accrued long service leave (LSL) and annual leave, which will exclude superannuation contributions.

Instead, he wishes to take LSL from the next business day so that he is entitled to be paid superannuation, with annual leave payments to begin thereafter. Can we refuse his request?

A.

If the employee has given notice of their last day of employment, and that has been accepted by your organisation, you do not have to allow the employee to use his accrued long service and annual leave entitlements.

That is, if the employment termination day has been set, you are entitled to hold the employee to that date and pay out his accrued LSL and annual leave on termination.

If the employee has not yet given formal notice of resignation, he may request to take the accrued leave prior to resigning and you may agree to that request.

Is an employee entitled to take annual leave and long service leave at the same time as unpaid parental leave?

Is an employee on unpaid parental leave entitled to take accrued annual leave and long service leave at the same time as unpaid parental leave?

A.

Although employees do not accrue annual leave while on unpaid parental leave, they are able to take annual leave that has already accrued.

As you are in Victoria, the Long Service Leave Act 2018 (Vic) will apply. An employee is entitled to take long service leave (LSL) at any time after completing 7 years of continuous employment with one employer (notwithstanding that they are on unpaid parental leave). Note, an employee’s employment will remain ‘continuous’ for the purpose of LSL despite taking paid or unpaid parental leave.

Can we challenge an employee’s personal leave claim based on stress caused by work?

An employee walked off the job in the morning and her husband called our office to inform us that she is unwell due to stress caused by work. She then contacted our payroll department to check her sick leave balance.

If she presents a medical certificate saying she is unfit for work due to stress, can we challenge the ‘stress’ reason or pass the case onto WorkCover for further investigation? Do we have to pay the employee before we see the medical certificate?

A.

An employee can take paid personal leave where they are not fit for work because of a personal illness or injury – this includes stress leave. The evidence requirements in the Fair Work Act are that any evidence provided must satisfy a reasonable person. Generally, a medical certificate will be considered reasonable evidence.

To challenge the medical certificate, you would have to refuse to pay the leave as personal leave and then if the employee brought an action against you under the Fair Work Act, you could challenge the validity of the medical certificate. However, there is a large potential cost and risk to your company of losing such an action as there is a relatively low standard of what is considered ‘reasonable evidence of an entitlement to sick leave’ under the Fair Work Act (being a medical certificate). If she brings a WorkCover claim then the insurer will investigate on your behalf regardless.

You do not necessarily need to pay the employee before you see the evidence, however if she doesn’t provide a medical certificate for a single day of absence this does not mean you can withhold her pay as it is not always reasonable for an employer to request a medical certificate for single day absences.

July 17, 2019 on topic Study leave
Does paid study leave attract superannuation?

Does paid study leave attract superannuation?

A.

Yes, paid study leave will attract superannuation. The relevant ATO Superannuation Guarantee Ruling (2009/2) states that salary or wages that an employee receives, at or below their normal rate of pay for ordinary hours of work, in respect of periods of paid leave is simply a continuation of their ordinary time pay.

Can an employee use annual leave to extend a parental leave period?

We have an employee who will soon commence 12 months of unpaid parental leave. She has asked whether she can extend her period of absence by taking her annual leave at the end of her unpaid parental leave. Is she legally entitled to do this?

A.

Yes, there is no problem with the employee taking annual leave at the end of parental leave, if you agree to it. However the employee should be aware that unpaid parental leave under the Fair Work Act 2009 (Cth) must be taken in one continuous period, so she cannot request the further, up to 12-month extension (if she is entitled to it) if she has ended the initial period of parental leave and commenced the annual leave.

How soon can an employee return to work after giving birth?

Is there a time limit that an employee cannot return to work after giving birth? Should we request a doctors’ certificate stating the employee is fit for work if she wishes to return within the first 6 weeks after giving birth?

A.

There is no legal requirement for an employee to provide a medical certificate if they wish to return to work within the first 6 weeks after giving birth.

You may have the right to direct an employee to provide a medical certificate, however the direction must be one that is considered to be lawful and reasonable.

This will depend on whether there is a genuine need for evidence of their fitness to work or there is cause to be concerned that the employee cannot perform the inherent requirements of their role.

What is the role of a support person?

Can you please provide clarification regarding the role of a support person during disciplinary meetings? I understand a support person should not advocate on behalf of an employee; however, if the employee brings in their union representative or lawyer, are they allowed to advocate? Or are they only there for emotional support?

A.

Generally, the role of a support person is to provide an employee with any support required during a meeting. This may include taking notes, and providing the employee with emotional support and comfort. The role of the support person is not to participate in a meeting as an advocate on the employee’s behalf.

A support person can be a lawyer, union official, friend or colleague who is present with the participant during the interview. Ideally the support person will not be another employee, for reasons of ensuring absolute confidentiality. However, this may be unavoidable.

Can we dismiss an employee who’s taken 15 months of personal leave?

An employee has been on stress leave for about 15 months. She has used all her personal leave, annual leave and long service leave, supplying medical certificates along the way. What are our options for dismissal?

A.

Generally speaking, it is unlawful to terminate an employee’s employment on the basis of their temporary absence from work due to illness or injury. An exception is when the employee has been on leave for more than 3 months, or they have been absent for a total of 3 months in a 12-month period, and at least some part of that absence was on leave other than paid personal/carer’s leave (such as annual leave or unpaid leave). It appears that you may, in this instance, be past the 3-month mark when you are able to dismiss this employee. This would have to be on the basis that she does not have the capacity to perform the inherent requirements of the position (which includes being available to work) rather than some other discriminatory or unlawful reason (such as exercising her right to use personal leave). Of course, you would also need to observe unfair dismissal laws.

You can make enquiries of the employee to see what adjustments she would need, within reason, to return to work in some capacity. This would include requesting medical certificates and, if necessary, asking for her consent to speak to her doctor. If there is no reasonable adjustment that you could make for the employee or if it becomes apparent that she will not be back to work at full capacity, you will need to revisit this issue with any new information available to you and make a further assessment as to whether you wish to proceed with dismissal on the basis of incapacity. You should appreciate that unfair dismissal laws require employers to give employees reasonable opportunity to respond to a proposed dismissal.

We recommend that you seek formal legal advice before taking any steps that are adverse to the employee, given the potential for liability for the business.

Can an employee take unlimited carer’s leave to support a partner giving birth?

An employee has requested to use carer’s leave (of as yet unknown duration) to support his wife when she gives birth. Can he take unlimited carer’s leave (with a doctor’s certificate to cover the period) in this circumstance? He has 6 weeks’ accrued personal leave – can he use this instead?

A.

Personal and carer’s leave comes under the same leave entitlements, known as personal/carer’s leave. There is no cap on the amount of personal/carer’s leave an employee may take. This will depend purely on the amount they have accrued. Once they have exhausted their accrued entitlement, the employee is entitled to a minimum of 2 days’ unpaid carer’s leave for each occasion the need arises.

February 17, 2019 on topic Using tracking devices
Can we track our employee’s movements using GPS?

We would like to install a tracking app into company mobile phones, especially those carried by delivery drivers and sales reps who spend most of their working time on the road. How can we do this legally?

A.

You can use GPS devices or phone applications to track your employees’ location or the location of the phone.

However, if employees have use of tracked phones out of business hours and your tracking devices collect information 24 hours a day, there is a risk that you will be storing information that is ‘personal information’ or is capable of revealing personal information. Even if the tracking data does not personally identify the employee, it is possible that it could constitute personal information if it could, at some future time, be linked back to the individual.

If this information were to be accessed by someone other than the business for a non-business purpose, there would be a material risk of a breach of the Privacy Act. In our view the best way around this is to avoid tracking or storing tracking data after business hours. It may be that you need to allow employees the option of turning off tracking after work hours.

You should also note that there is statebased legislation in Victoria, NSW, WA and the NT which addresses the use of surveillance devices (which includes tracking devices) and generally requires that you inform employees of the installation and use of such devices. In NSW, this includes clearly notifying the operator of the device in operation. Further, in Victoria, WA and the NT you are also required to obtain employee consent to use tracking devices.

Do we have to provide a performance review plan?

We have dismissed an employee (during their 6-month probationary period) due to poor performance. The employee has asked for their performance review plan. Do we need to provide this?

A.

You are not legally obliged to provide the employee with their performance review plan.

October 17, 2019 on topic Which laws govern public holidays?
Can we harmonise public holidays in different states?

Our main office is based in NSW and we have recently opened a small office in Victoria. We’re aware that there are slightly different public holidays but want to try to ensure parity (where possible) across the two teams. As it stands, there are a couple of additional public holidays in Victoria. Can we harmonise them?

A.

Under the National Employment Standards, an employee is entitled to be absent from work on a day that is a public holiday in the place where that employee is based for work purposes. An employment contract, modern award or enterprise agreement cannot provide for conditions that are less than these standards. That means your Victorian employees are entitled to take Victorian public holidays off.

You may request an employee to work on a public holiday but the employee may refuse this if either the request is not reasonable or their refusal is on reasonable grounds.

Factors that will go to whether a request or its refusal are reasonable include:

  • the nature of the business and of the employee’s particular work;
  • the employee’s personal or family circumstances;
  • whether the employee will be compensated (e.g. overtime payments or penalty rates) for working on the public holiday, or whether they are paid at a level that reflects an expectation they will work on public holidays; and
  • the amount of notice the employee is given before the public holiday.
What happens if an employee who has resigned ‘owes’ us leave hours?

An employee has resigned and she owes hours for annual leave taken in advance. She also currently owes hours she has taken off work but still received payment for (no leave entitlements used). She has been working additional hours without pay to make up this time. Are we able to deduct this from her final pay? If the leave taken in advance is more than the final pay, is there an enforceable loan that the employee has to repay?

A.

Under the Fair Work Act 2009 (Cth), you are not able to make a deduction from the employee’s payment without written authorisation to do so.

We suggest you write to the employee explaining the shortfalls and the specific amounts, so it is clear to the employee what she owes. You can suggest to the employee to repay the amount to you directly or alternatively, the company can deduct it from her final pay and she can repay any remaining excess should there be any. If the employee chooses the second option, you should ensure their consent to the deduction is in writing (an email is fine).

The overpayment is likely to be an enforceable debt, so if the employee does not agree to repay the money, you could choose to recover the debt through the courts. However, this can be an expensive process. If you choose to recover through the courts, we suggest you seek formal advice. It may be more commercial to write off the loss.

Can we reduce an employee’s hours for operational reasons?

We have recently had a downturn in sales at our store and have had to restructure operations. We asked our employees if they would consent to reduced hours so that we could avoid redundancies. One employee refused.

After failing to find other ways to cut costs sufficiently, we calculated that we will need to reduce her hours for 1 day per fortnight. If we present this to the employee in the next meeting and she still refuses, can we direct her to undertake the change?

A.

Firstly, you should check the specific provisions of the employee’s contract of employment. It may contain provision for the employer’s right to vary terms relating to hours of work in consideration of operational need.

In the absence of such a contractual term, an employer may not unilaterally vary a contract of employment. To do so risks, if the employee does not accept the change, being regarded as repudiating or terminating the contract, in which case the employer may be exposed to an unfair dismissal claim.

However, only major changes to work rosters have generally been found to be a sufficient variation to amount to a termination of an employment contract. A change to 1 day per fortnight would likely not amount to this, depending on your employee’s particular circumstances and how severely it would impact them.

If the employee is covered by a modern award, this will contain a clause requiring employers to consult with employees about changes in their roster or ordinary hours of work. Any applicable enterprise agreement may also contain relevant clauses.

Can we reduce our employee’s hours?

Our business is going through a very quiet period. In an effort to avoid redundancies, management wishes to reduce working hours across the board. Is this something we can do due to a downturn in company workloads? If so, how do we implement it? Are there notice periods we need to provide to staff? And where do we stand if an employee refuses to reduce their hours?

A.

An employer cannot generally reduce hours or pay without the consent of the employee. To do so can constitute a constructive dismissal. To implement the kind of reductions in hours or pay you are contemplating, it is generally best to let the staff know that the business is going through a difficult period and trying to avoid any redundancies, and ask for employees’ consent (in writing) to temporarily reduce their hours or pay. You should not threaten the employee with dismissal if they do not agree, however if they do not agree then you may have to find other ways to cut costs such as allowing fewer overtime hours or making positions redundant. There is no need for a notice period if you obtain agreement to vary the contract. Otherwise, you will need to adhere to the relevant notice period if you are dismissing employees because of redundancies.

Can we make an employee change their LinkedIn profile image?

Do we have a legal right to make an employee change their LinkedIn photo if their current profile picture does not portray a professional image? Alternatively, can we include it in a policy and make it enforceable that way?

A.

You can ask an employee to change their LinkedIn photo to reflect a more professional image. However, we would recommend caution, and potentially seeking specific legal advice before disciplining an employee for not following such a direction from you.

You could also include a line in your social media policy making it clear that LinkedIn accounts should reflect an employees’ employment, and reflect the professional nature of their employment, including professional images.

January 17, 2019 on topic Return to work plan
Do we need to prepare a return to work plan for a personal injury?

If an employee has an injury that is not work-related, do we have to put together a return to work plan to ensure they do not injure themselves further at work?

A.

There are obligations under discrimination legislation to make reasonable adjustments to allow employees to return to work safely and with regard to health and safety legislation so that employees can perform their duties safely and without risk to health.

However, the return to work plan requirements are specific to workers’ compensation legislation and do not need to be adhered to for non-work related injuries.

Do we have to accept polygraph results in a workplace investigation?

We are conducting a workplace investigation into an allegation of serious misconduct by one of our employees. The respondent has obtained a polygraph report, which he purports to show that he did not act as alleged by the complainants. I am aware that polygraph evidence is not considered admissible in Australian courts in criminal matters. The investigator also has serious doubts about the testing in this case. To what extent should the investigator consider the result of the polygraph test as evidence?

A.

The rules of evidence required to be adhered to by Australian courts are not required to be adhered to by an investigator during the course of a workplace investigation. Although, technically, the results from this employee’s polygraph test are able to be considered, the investigator may choose not to due to doubts over the accuracy of polygraph testing.

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