Employment law governs the relationship between an employer and employee and concerns a range of workplace matters. Business owners and managers may not be an expert in every aspect of employment law, however, should understand their primary obligations and know when to turn to a professional for help.
Employees facing disciplinary action, redundancy, termination, or other workplace challenges generally feel confused and vulnerable and should seek legal advice to ensure their rights are protected.
We assist employers and employees with a range of workplace matters, taking a ‘prevention is better than cure’ approach to help minimise and resolve issues in the workplace. We encourage open and frank discussions and foster negotiation and mediation to resolve disputes.
Employment terms and contracts
Whether hiring at a junior or executive level, an employment contract provides clarity regarding each party’s rights and responsibilities. Typical contract terms include:
- commencement date and duration of employment, if for a fixed term
- duties and accountabilities including reporting lines
- remuneration and overtime arrangements
- leave entitlements and superannuation
- probation periods and disciplinary procedures
- termination and notice requirements
- performance appraisals and wage reviews
- codes of conduct, complaints and dispute resolution procedures (which may be further detailed in relevant policies)
- restraint of trade and confidentiality provisions
- confirmation of the legislation/award governing the employment
Terms and working conditions must comply with legislation, the National Employment Standards and any relevant awards. The National Employment Standards relate to matters such as maximum weekly hours, flexible working arrangements and parental leave, annual leave, personal/carer’s and compassionate leave, long service leave, public holidays, notice of termination and redundancy pay. These statutory rights cannot be avoided by contrary contract terms or practices.
Termination and unfair dismissal
Termination of employment may occur through voluntary resignation or dismissal by the employer on the grounds of redundancy or for other reasons. In most cases, employees must be provided written notice when their termination is instigated by the employer. The notice period will depend on the length of service of the employee.
An employee is made redundant when the employer no longer requires the employee’s job to be done by any other person, or in the event of the employer’s bankruptcy or insolvency. Subject to the employee’s length of service and type and conditions of employment, the employee is entitled to redundancy pay.
An employer may face an unfair dismissal claim if a purported redundancy is not genuine. A genuine redundancy can be shown by the introduction of new technology which replaces human labour, discontinuance of the business operations, relocation of the business interstate or overseas, or the restructuring of an organisation.
Unfair dismissal claims can arise in other situations, for example, after terminating an employee on the basis of discrimination or for failing to follow proper procedures, i.e., not correctly notifying and providing an opportunity for an employee to respond to a poor performance appraisal.
Each matter must be considered in light of the surrounding circumstances.
Discrimination, bullying and harassment
All workers have the right to undertake their employment without worrying about discrimination, bullying or harassment. Employees have legal protections and rights in such circumstances.
Examples of harassment include:
- insulting jokes about specific racial groups
- sexually explicit or suggestive emails or texts
- displaying racially offensive or pornographic material
- derogatory comments or jokes about a worker’s disability
- asking intrusive questions about a worker’s personal life
Examples of bullying include:
- physically or verbally abusing another worker
- yelling, screaming or using offensive language towards another worker
- purposefully excluding or isolating a worker
- psychological harassment or intimidation
Discrimination occurs where an employer takes adverse action against a worker or prospective worker because of a ‘protected attribute’. Protected attributes include:
- race, religion, social origin or national extraction
- sex or sexual orientation
- physical or mental disability
- marital status
- family or carer’s responsibilities
- political opinion
‘Adverse action’ is defined as either doing, threatening or organising any of the following:
- firing a worker
- contributing to a worker’s injury by not allowing them legal entitlements such as pay or leave
- making changes to a worker’s job to their disadvantage
- treating a worker differently to their colleagues
- not hiring a potential worker
Minimising workplace disputes – education, process and policy
Key to minimising disputes is understanding the laws about workplace issues, such as those outlined above, and implementing policies and codes of conduct for managing workplace relations, disciplinary matters, and dealing with conflict. An employment lawyer can provide guidance and assist with these matters.
Policies that address work health and safety issues such as bullying and harassment may be invaluable in showing that an employer has attempted to instil the required conduct for employees within a workplace, particularly if a matter comes before the Fair Work Commission, a court or tribunal.
Policies can also address a range of practical matters such as uniforms, leave requests and payment of wages, drugs and alcohol use, and email and internet usage.
Regular review of workplace policies should ensure they are up to date and address changes in legislation and contemporary work issues.
Employment laws change frequently, with the pandemic raising more issues than ever before. Working with an employment lawyer can help employers and employees to understand their workplace rights and obligations and address the many legal challenges they may face.