2012 Workplace Relations Resolutions

For employers, the passing of a calendar year is an opportunity to review our 'New Year's business resolutions' and plans.

If not made already, it's never too late for employers to make their "HR Resolutions" for 2012 and there is no better time than now. Our guest author and workplace relations expert Brad Petley (Solicitor-Director of Acumen Lawyers) details his top tips for a successful year with your business' workplace relations and legal requirements:

New Year's Resolution: Review your business's employment documents

When a business is running smoothly it is easy to overlook the importance of regularly reviewing the business’s employment contracts and workplace policies.  The focus of such a review should be: (1) to ensure compliance with relevant workplace laws, and (2) to ensure that the operation of the employer’s business is not unduly confined by outdated or poorly drafted workplace policies or employment contracts.

1.    Ensuring compliance with workplace laws

Even though the Fair Work Act 2009 has been in operation for just over 2 years, I am still surprised at the amount of outdated employment contracts and workplace policies still in use.

As many of you would be aware, the FW Act commenced operation in two phases (1 July 2009 and 1 January 2010). Importantly the FW Act introduced the National Employment Standards (NES) and Modern Awards.  The NES have brought about changes to a number of minimum terms and conditions, which necessitated amendment to the wording in many existing employment contracts.

The risk to employers for not fixing non-compliant contracts include the possibility of legal action for a breach of the NES and/or a relevant Modern Award and the prospect of a civil penalty of up to $6,600 for an individual employer and $33,000 for a company employer.

The solution to remedying non-compliant employment contracts is relatively simple; re-issue new compliant contracts.  If the changes made are merely a restatement of the current applicable workplace laws, the agreement of affected employees is not needed.  That is because the new provisions in the employment contract are merely reflecting the changes to their employment brought about by the FW Act on the above dates. Of course, if an employer wished to introduce other terms into new contract (unrelated to the FW Act changes), those terms would require the agreement of employees affected.

2.    Ensuring workplace policies and employment contracts are workable

In the 2011 case of Tara Davies v Hip Hop Pty Ltd T/A Hippity Hop Child Care (an unfair dismissal case) Fair Work Australia considered an employer's policy so poorly worded that a breach of the policy could not constitute a valid reason for a dismissal.  Thus, the employer's dismissal action was found to be unfair.

A mistake that employers sometimes make is to create unnecessary disciplinary restrictions in their workplace policies.
The "three warnings before dismissal stipulation" is somewhat of an HR myth.  Some employers (mistakenly) set out a "3 warning before dismissal" precondition in their workplace policies for their managers to follow.  In essence, leaving their managers without any discretion to take dismissal action if a misbehaving employee had not previously received the requisite amount of prior warnings.

In such a situation, an employer will breach its own policy by dismissing an employee over misconduct without having previously issued the required 3 warnings.  An industrial tribunal will likely take a dim view of the employer’s procedural flaw and, consequently, may determine the employee’s dismissal to be unfair.  An order for reinstatement of the employee or the payment of monetary compensation could then follow.

How many warnings are necessary?

If a reason for a dismissal relates to unsatisfactory performance, the FW Act provides that Fair Work Australia must take into account whether the employee had been warned about that unsatisfactory performance before the dismissal.  However, the FW Act certainly does not set out any minimum amount of warnings that must be issued in order for a dismissal to be considered fair. 

Depending on the seriousness of employee’s misconduct or performance there may be no necessity for any warning to be issued before an employer is entitled to dismiss the employee.  Whether none, one or more prior warnings are necessary before an employer may dismiss a misbehaving or underperforming employee, will depend on the facts and circumstances of each case. 

If an employer is unsure of its rights or obligations when dealing with a workplace situation, advice is always recommended.
 

About the Author

Brad Petley is the Solicitor-Director of specialist workplace relations law practice, Acumen Lawyers.  Brad is experienced in advising employers about their workplace issues including reviewing and drafting employment contracts and workplace policies.  Brad is also an accomplished legal presenter and is presently the author of the Step-By-Step Employment Law Guide.  Brad may be contacted by e-mail at brad@acumenlawyers.com.au or by telephone on (07) 3607 6303.

This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to provide legal advice. No reader should act or rely on the basis of any matter contained in this publication without first obtaining specific professional advice.

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