Employment Law for Employers

What does JFMLAW do for employers?

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We provide training on appearing in the Fair Work Commission for managers

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.

For full details as to how legal assistance can help you navigate a Fair Work Commission application, proceeding or hearing, and to stay abreast of the changing employment law landscape, see the JFMLAW Manager’s Toolkit or call JFMLAW today.

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 behaviour.
  • Behaviour 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.

Guidance 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.

Helping managers to warn or terminate employees for cause

An employer should give the employee a chance to fix performance issues. If an employee is terminated and makes an unfair dismissal claim, the Fair Work Commission will usually take this into consideration. When a warning is given, a performance improvement plan should always be given to the employee.

A performance improvement plan is a document which sets out the problems that an employer has with their employee’s performance, and outlines what they need to do to improve it. It’s important to continually monitor and review the plan.

Responding to underpayment claims and to the Fair Work Commission

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.

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

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. Pay particular attention to:

  • Penalty rates including public holidays and weekends
  • Bonuses and commission
  • Leave entitlements including annual leave, carers leave, parental leave etc.
  • Overtime payments
  • Allowances and shift loading
  • Whether the correct tax deductions have been applied

Once you have calculated the exact length of time, check how much you actually paid the employee and calculate the difference between the actual amount paid and the amount the employee is entitled to. This difference should then be disbursed to the employee as soon as possible.

We appear for employers in the Federal Court

Serious employment matters, on occasion, need to be heard in court. JFMLaw always aims to keep matters out of court where appropriate.

If your matter does need to be heard in the Federal Court, it is important to have solicitors who have experience in this jurisdiction and who have the best relationships with counsel to ensure you are well represented. JFMLaw has long standing relationships with senior members of the bar who specialise in employment law.

It is important to have an advocate who can help navigate this complex and formal system.

Assistance for HR professionals to implement fair and proper contracts, and comprehensive 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.

Industry specific contracts and workplace policies

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.

Give us a call – 02 9331 0266

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