Q&A

For many employees, whether and how much annual leave an employer can direct an employee to take is dictated by their relevant modern award. Are there any accepted guidelines or precedents for award-free employees?

Are we able to refuse an employee cancelling pre-approved annual leave, and still make them take the leave?

If we pay above the award rate, can we absorb annual leave loading into the employee’s annualised salary? If yes, does this need to be documented in their letter of offer?

One of our workers has been taking photos of a co-worker and giving them to their section manager to prove that the worker’s output is of poor quality. This is causing unreasonable pressure on the photographed worker. Is this workplace bullying?

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?

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 family member of one of our employees was taken ill and not expected to live. The employee travelled interstate for a week to see him. He passed away while she was there, and she stayed to attend his funeral. Is she entitled to 2 days’ compassionate leave for the whole event? Or 2 days for when the family member took ill and 2 days for when he died?

We have a staff member who has taken 2 days off to go to a funeral for her uncle (the funeral is a 4-hour drive away, so the employee would be staying overnight). Is the time off classed as personal leave? If so, she is owing us time for personal leave as of now. How do we manage this?

If a casual employee receiving JobKeeper payments refuses to come to work, can their employment be terminated and their JobKeeper payments stopped?

I am in the process of reducing an employee’s working hours to be in line with the JobKeeper payment, as the work they do has dried up. I am getting resistance from the employee who says that they should either be at home receiving it or taking their normal wage for less hours. If you could offer some advice or suggestions it would be greatly appreciated.

Can you please advise what pay an employee is entitled to should self-isolation be either voluntarily or involuntary be required as a result of COVID-19?

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?

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

It has come to our attention that some longstanding employees don’t have sufficient English reading skills to read and comprehend our procedures and task instructions. It appears they had people interpreting for them who have since left the business. Are we able to insist that these employees learn English outside of work? Is termination of employment an option?

Does an employer need to provide a prayer room for employees?

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?

We need to retrench two employees due to a downturn in business. As we are a small business, I understand there is not severance pay; however, the two employees have a considerable amount of leave and entitlements owing to them that we are unable to pay. What are our options?

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?

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.

Should we attach an employee’s position description to the employment contract? If it is attached in the Schedule, does it become a contractual term? Is it more difficult to change the duties of the employee if the position description is attached to the contract?

When an employee signs an employment contract, do they need to return the entire document need or is it okay to just return the final signature page? Should employees be required to sign every page? If a change is made to an employment contract after signing, does it suffice to email the employee with the change and not require an updated signature in return?

Our employees who work with high-intensity clients are allowed a higher pay rate, but only when working specifically with them.

They also work with lower-intensity clients. This doesn’t allow for the same hourly rate.

Do we treat this as two separate employment contracts?

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 extend probation if a clause in the contract states that we can? If we want to terminate someone’s employment during the extended period, do we need to follow the warning process and offer them a witness at the termination of employment meeting?

If a company is covered by an enterprise agreement, does that cover all their employees, or can some employees be covered by a modern award?

Considering recent events such as the coronavirus and the bushfires, can we force staff to work from home due to business requirements? For example, if our site burns down, or if staff are forced to be isolated in their homes?

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?

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?

Our staff levels are about to exceed 300 persons. As our business is classed as a high-risk industry, are we required to employ an occupational nurse on-site? Our business is based in Queensland.

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.

We have a full-time employee who has requested to reduce their work days to 3 days per week, effective immediately. The employee has indicated they will resign should we not agree to the reduction in hours. We feel that this role requires a full-time employee. For this reason, can we refuse the employee’s request?

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

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?

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?

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?

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?

We are considering engaging an independent consultant on a fixed-term contract. Do we have to pay WorkCover, or is it covered by their professional indemnity insurance? We are in Victoria.

Awards stipulate that flexibility agreements should not be provided to employees until after they have commenced employment. However, committing to above-award salaries in advance is often necessary to attract certain candidates. Is there a best-practice strategy for handling this scenario?

We are looking at the likelihood of standing down employees. Do we still have to pay staff for public holidays that occur during this period?

An employee was ill for a period while they were taking long service leave. The employee wishes to use personal leave for this period and be reimbursed the long service leave. Are they entitled to do this? Our business operates in Victoria.

Our organisation has offices in the ACT, NSW and Victoria. Each office is covered under different long service leave (LSL) legislation. Can we apply consistent LSL rules across all of our offices?

We have an employee who resigned and finished working with us about 2 months ago. She is now returning to work for us. Can this employee’s long service leave balance be carried over, given she has been gone for less than 3 months? We are in Queensland.

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?

If an employee engages in dishonest behaviour that could damage the reputation of our company and then continues to lie about this, would this count as serious misconduct for dishonesty? Is there any law that states what classifies as dishonesty in dismissal for serious misconduct?

How much information do I need to give to the complainant about the outcome of a misconduct investigation?

We are hiring a new employee and are unsure what award they would fall under. How do we determine what award applies to them?

Under the modern award covering our employees, employees can request payment of their personal leave in excess of 15 days. Does this one-off payment attract the super guarantee?

If someone has to appear at court as a result of a work-related court order or subpoena, what kind of leave is this?

An employee has requested to take a period of leave without pay for 12 months for personal reasons not linked to any statutory entitlements. Are we required to hold the employee’s position open for them for 12 months? If there is no suitable role available after the leave, would redundancy become payable? Can the terms of the leave without pay period agreement stipulate that best endeavours will be undertaken to identify a role, however a role is not guaranteed and should a suitable role not be available at the end of the leave period that redundancy would not apply?

How does a period of unpaid leave (taken within the probation period) impact on the timeframe for any unfair dismissal claim?

Does paid study leave attract superannuation?

If an organisation implements a Paid Parental Leave Policy of 12 weeks’ paid parental leave (PPL) for all eligible employees, can the employees also separately claim the Government’s 18 weeks’ PPL afterwards or concurrently?

We have an employee who went on 12 months of parental leave. She requested a 12-month extension, which we granted. She is due to return in a couple of months; however, she has advised us that she is pregnant. The employee has asked for another period of parental leave without returning to work in between. Are we legally obliged to approve the second parental leave if she hasn’t returned to work? This would mean the employee is on parental leave for 3–4 years.

We are a small business with fewer than 10 employees. One of our employees is expecting a child. Is our company obliged to pay paid maternity leave in addition to the Government Paid Parental Leave?

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?

Our employee’s performance has been declining over the past 6 months and she has not been meeting her key performance indicators.

We offered her training assistance and in-house support for managing her staff. We then had role duplication and we offered her a reduced role (reduction in responsibilities and salary) or a redundancy. She took the reduced role. In the 2 months following this, her performance continued to deteriorate and she took individual leave days.

Last week in a one-on-one meeting she asked if she should resign as she felt she couldn’t do the work and had depression. I said I could not respond to this as I am not a neutral adviser. I further advised her not to make a decision if she felt unwell. I called in her manager to the meeting and the employee verbally resigned.

She has not followed this up with written advice, so I sent an email confirming what she’d said in the meeting and asked her to reply, but I haven’t received a reply yet.

Can we consider this resignation final? If we do, does this mean the staff member has no further recourse to say that she had a mental illness and was not allowed sick leave?

I know that employees are entitled to 10 days’ paid personal/carer’s leave for every year of service they have worked for their employer. This entitlement accrues progressively and accumulates until the employee’s employment ends. Does it mean that personal leave for part-time employees is accrued on a pro rata basis?

One of our employees has put in a request for carer’s leave to look after a sick relative who is residing overseas. Does the carer’s leave entitlement still apply even though the employee will have to travel overseas?

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?

What personnel records are we able to request and retain from new employees? Is it okay to have copies of documents that include personal information?

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 need to provide a notice period, or pay in lieu of notice, when terminating the employment of an employee who is serving a probationary period?

Under the applicable modern award, our employees are required to give 1 month’s notice if they resign. Should we let them go within their 6-month probationary period, are we required to pay them 1 month in lieu of notice?

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?

Would it be lawful to allow our employees to substitute a gazetted public holiday to observe a day of faith of their choice? For example, swapping Christmas Day (25 December) for Eid (~13 May), so they would work on Christmas Day but have a paid day’s leave on the day Eid is celebrated.

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?

We recently hired a new employee and they begin working with us in 2 weeks. Due to COVID-19 affecting the business, we would like to delay the employment start date. Can we amend the employment contract start date?

We have a part-time employee whose role will be made redundant in the coming months. We are currently looking at redeployment options, but thought we should also look at calculating the redundancy entitlements in case no redeployment options can be found. This employee was employed as a casual employee for 4 years. They converted to part-time employment a year ago. Do we include the casual service when calculating redundancy pay?

We have recently restructured and several positions were made redundant. All affected staff were offered redeployment to other positions. One employee refuses to sign their new contract. They claim they are being disadvantaged in terms of pay because other employees who were on a lower salary have been redeployed into roles at the same pay level as this employee. This employee’s pay would actually increase with the redeployment – it seems the objection is to other employees’ pay also increasing. If they refuse to sign their new contract, do they become redundant and are we required to pay them redundancy pay?

How do you calculate redundancy pay under the National Employment Standards when making a payment in lieu of notice if the employee’s work anniversary date – which would increase their entitlement – is to fall within the notice period?

Can an employer impose a blanket notice period (e.g. 4 or 12 weeks’ notice) on resigning employees? How does that interact with the statutory periods under the Fair Work Act 2009 (Cth) (FW Act)? What could an employer do if the employee does not give the required notice? Would the employer then have to give the corresponding notice when terminating employment?

Our workplace policy for employee professional development states that employees must repay the company for professional development expenses (e.g. the cost of a course) if they resign within 12 months of receiving the benefit. The policy says this may be deducted from the employee’s final pay. Since this is not in the employment contracts with our employees, are we able to enforce this?

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?

We are looking at including a non-compete clause in future employment contracts. Are we within our legal rights to specify that staff can’t work for clients or competitors for a 6-month period after their employment with us ends?

Does a restraint clause hold up if the employee was retrenched?

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?

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?

If a company goes through an acquisition (share sale), do we need to issue new employment contracts to the employees after the completion of the sale or can they remain under their old contracts?

We are a medium-size business in WA, and we are trying to increase our social media presence. One of the things we would like to do is feature staff members’ photos on our social media platforms. Must we ask for permission for each individual photo? And what do we do if the employee is aged under 18? Can we legally incorporate a clause in our contracts that permits the use of photos taken for the purpose of our business social media unless an employee withdraws consent?

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?

When an employee has had their employment terminated, what is the maximum period that an employer has to pay their superannuation entitlements?

Are we required to keep records of unpaid overtime for salaried staff?

In our business, we require all employees to submit timesheets before our pay runs for ease of invoicing, accounting and processing pay roll. One of our part-time employees has been consistently failing to comply with this request. After making the request and following up with reminders and warnings on numerous occasions, we wish to take more punitive action. It has been proposed one approach to take is to only pay employees for the hours they have recorded on their timesheets, meaning this employee would not be paid. Are we legally allowed to do this?

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?

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?