Need help from our legal team?

Ask our experts
Home Q&A
Q&A

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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.

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?

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?

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?

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?

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?

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?

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.

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?

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?

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?

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?

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?

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?

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?

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?

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?

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

Does paid study leave attract superannuation?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

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?

Ask
our experts

Our Portner Press team of editors, writers and contributors consists of legal professionals who are experts in their respective fields – whether it’s employment law, workplace health and safety, or human resources.

Copied