If you run a business and need help with an employment law issue - you've found the right place

What do JFMLAW do for employers?

• Provide training to appear in the Fair Work Commission for manager/business owners
• Respond to workplace complaints
• Run workplace investigations as an independent investigators
• Guide managers and business owners through the performance management process
• Assist managers and business owners with termination for cause
• Respond to underpayment claims from employees or the Fair Work Ombudsman and ensure compliance with pay rates, penalty rates and Modern Awards
• Assist with employment contracts and workplace policies and procedures
• Prepare industry specific contracts and workplace policies for a diverse range of workplaces, including:
  • Small professional businesses
  • Allied Health services
  • Logistic businesses
  • Start ups

Give us a call – (02) 9199 8597

Training to appear in the Fair Work Commission for manager/business owners

We provide training on appearing in the Fair Work Commission for managers and business owners.

Subsequent to the decision of Fitzgerald v Woolworths Ltd [2017] FWCFB 2797, the amount of work that a lawyer is allowed to undertake on your behalf in proceedings before the Fair Work Commission has been reduced.

Permission is not required by the FWC to do certain preliminary tasks such as preparing and lodging documents at the FWC on behalf of a party or participating at a conciliation or mediation process at the FWC. However, permission is required for tasks such as preparing and presenting oral submissions on behalf of a party before a conference or hearing, or examining or cross-examining witnesses on behalf of a party at a hearing.

There are limited grounds where the FWC will grant permission for a party to have legal representation where such permission is required, such as to address a power imbalance between parties, or where a person cannot effectively represent themselves.

As such, it is more important than ever that managers are aware of the rapidly changing employment law landscape, especially where they may not be able to have legal assistance in certain key stages of a Fair Work application.

Responding to workplace complaints

An employer should commence a workplace investigation if an employee is alleged to have engaged in serious misconduct. Examples of serious misconduct include:

• Illegal behavior
• Behavior that creates a serious risk to the health and safety of colleagues and clients
• Bullying or harassment of colleagues and clients
• Out of hours conduct which poses a serious risk to the reputation of the business
• Breaches of confidential information or IP provisions of an employment contract

Workplace investigations are not appropriate for performance issues. If you are concerned about an employee’s productivity, work quality or work ethic as distinct from their behaviour or conduct, you should start a performance management process.

It is important that you act quickly to establish a workplace investigation. Investigations and allegations of misconduct are disruptive, and should be dealt with promptly so as to minimise that disruption. A failure to act soon could also communicate to your employees that you do not take misconduct or complaints about misconduct seriously.

A complaint of a less serious nature may be dealt with by way or a warning or formal counselling of the employee in a meeting between the relevant manager or employer and the employee.

Run workplace investigations as an independent investigator

In circumstances where a senior employee is under investigation or where there is no designated HR team and a manager or business owner may be of the view that they do not have the skills, expertise or resources to carry out an investigation, they may choose to assign an independent investigator to carry out the investigation work on behalf of the business.

This process is especially important in circumstances where, in the event an investigation was carried on internally, there would be a strong perception of bias. As stated above, this may be a result of the position or seniority of the employee who is the subject of the investigation, the nature of the allegation or the structure of the business.

Compliance with best practice of investigation is essential in protecting businesses from allegations of unfair dismissal or further workplace complaints about a lack of procedural fairness in the process. As experienced employment law specialists and investigators, we can ensure best practice is carried out in all investigations.

Guide business owners/managers through the performance management process

One of the key duties of a manager is ensuring the continued success of their employees. Understanding the right way to address poor employee conduct or performance is the key to ensuring that a workplace remains productive and adverse legal action is avoided.

Poor performance is the failure of an employee to meet the measurable KPIs expected in their job description. Poor conduct is behaviour by an employee at the workplace that is unacceptable.

To address minor poor performance issues, informal counselling should be undertaken, where the employee is given an opportunity to respond and improve. A serious performance issue should be addressed by a written notice and a formal meeting with the manager. A performance improvement plan should be created between the employee and the manager. Should the performance improvement plan not be complied with, the employee may be terminated if the correct procedural steps are followed.

If the correct steps in performance and conduct management are not followed, an employee may have grounds to make an application at the Fair Work Commission.

Assist managers/business owners with terminations for cause

Terminating clients can be an area of risk for employers. Terminations that are handled poorly can lead to the terminated employee having a right to an unfair dismissal claim, a general protections claim or breach of contract.

Terminations can be made for a number of reasons:

• End of contract
• Breach of contract
• Poor performance
• Misconduct
• Redundancy

Terminations in all these circumstances carry risk for employers and should be carried out in a careful and considered way with attention shown to the rights of the employee, the business and to ensuring that the termination is complaint.

We can advise on best processes for carrying out redundancies, terminations for misconduct after an investigation (show cause), poor performance and advise on terminations of contracts.

Responding to underpayment claims from employees or the Fair Work Ombudsman and Ensuring compliance with pay rates, penalty rates and Modern Awards

Underpayment of wages is rampant in the workplace. Underpayment occurs when an employer fails to pay the correct minimum amount of pay and entitlements to an employee under the relevant Award or contractual agreement.

It is prudent that as an employer you are aware of the exact Award conditions that your employee is entitled to or the conditions prescribed in the employment contract and obtain advice on best practice regarding pay, rostering and contracts.

Particular areas that are high risk for underpayment include:

• Not applying the correct penalty rates particularly on a public holiday or weekend
• Underpaying leave entitlements
• Not being aware of pay increases as prescribed by legislation
• An employee has taken on more duties and responsibilities
• The employee has completed an additional qualification
• The employee has made the transition from a junior worker to a standard worker
• Not paying allowances/ loading/ overtime correctly

It is also imperative that you determine the exact duration of the underpayment. If you are not sure of the exact length of time, then it will be necessary to audit the entire pay period for the employee.

Employment contract and workplace policies and procedures

Good workplace policies and clear contracts are essential to the smooth running of any business.

These policies ensure that if there is any disruption to employment, such as unforeseen leave, a complaint or termination by the employee, the business can ride out this period and not financially suffer.

Having well-structured and clear contracts and policies in place protect both employees and businesses from future unforeseen circumstances and ensure your duties as an employer are fulfilled.

Through our many years of experience, we have developed specific contracts and workplace policies for many industries.

These policies and contracts ensure that all employer duties are satisfied, protecting both your employees and the business. Smart workplace polices protect employers from lengthy and expensive complaints, claims or proceedings.

We can tailor these policies and contracts further to your business, ensuring they adequately deal with specific issues or challenges that your business faces.

Industry specific contracts and policies

Over numerous years of practice we have developed a number of workplace policies and contracts specific and tailored made for various industries. These contracts have been designed with the needs of these specific industries in mind both in order to protect employers and to ensure the smooth running of the business with a mind to efficient management of employees. The contracts and policies aim to mitigate the risks in these industries.

Give us a call – (02) 9199 8597