Unfair Dismissal

Employment and industrial relations issues are for some businesses the trickiest and most time-consuming problems they will face. The sheer task of managing humans can be a minefield without proper legal support.

At Roberts Crosbie Mortensen we advise our clients and act on an endless range of employment and industrial relations issues focusing on preventative measures and dispute methods. We believe that adversarial resolution should be the last resort for any employment related dispute. We pride ourselves on balancing sensitivity and tact with patience and reliability.

Our approach is to provide common sense advice that deals with the root of the problem and delivers workable solutions to get your business back on track so you can focus on what you do best.

Our specialist Employment Law team is a safe pair of hands for employers who need to resolve workplace issues quickly, efficiently and with limited disruption to their business.

We are no strangers to the Fair Work Commission, Federal Circuit and Family Court of Australia and state-based tribunals. We know the ins and outs and ups and downs of commercial employment issues such as post-employment restraints, injunctions, shareholder agreement disputes and associated litigation.

We are skilled in drafting employment contracts and other workplace policies. We can assist you with unfair dismissal claims, investigating workplace disputes, mediating and litigating if required. We review arrangements with industrial associations, labour hire companies and contractors and can develop and ensure approval of Enterprise agreements as well as providing advice on award coverage and industrial disputes.

We support employers to navigate issues with regard to injured workers including policies and procedures, inherent assessment requirements, return to work plans, termination of employment and industrial and regulatory compliance.

In cases of restructuring, selling a business or transitioning for retirement, we can assist you by assessing issues and implications in relation to your employees. This can include providing you with advice in relation to potential redundancy entitlements, transferring of employee entitlement and continuity of service issues.

As an employer, there are many legal obligations that you are required to uphold to ensure that your business is trading legally, and your employees and staff work in a safe and secure environment. These obligations include:

• Remuneration & entitlements,
• Employment conditions,
• Non-discriminatory workplaces,
• Bullying & Harassment, and
• Safety.

A failure to uphold these obligations can have significant consequences for your business. Consequences include back pay to employees, compensation, damages claims, litigation costs, fines and penalties against the business and individuals involved in its management.

The onus is upon an employer to ensure that employees and workers are treated correctly and are receiving their minimum statutory rights and entitlements. As an employer, creating a legally compliant, supportive and safe work environment will also lead to increased business growth, maximising staff efficiency and engagement.
Legislation and Industrial Instruments that govern workplace relationships include, but are not limited to the:

• Age Discrimination Act 2004,
• Disability Discrimination Act 2005,
• Enterprise Bargaining Agreements,
• Fair Work Act 2009,
• Human Rights and Anti-Discrimination Act 2012,
• Modern Awards,
• Privacy Act 1988,
• Racial Discrimination Act 1975,
• Restraint of Trade Act 1976,
• Sex Discrimination Act 1984,
• Work Health and Safety Act 2011,
• Workers Compensation Act 1987, and
• Workplace Gender Equality Act 2012.

It is critical as an employer that you are continually aware of your employee’s rights and your obligations. Further, it is important to understand what rights you have as an employer under any legislation or industrial instruments.

Best Practices

• Consult with one of our Employment Lawyers to discuss your specific circumstances and employment obligations prior to making any decisions in relation to your employees.
• Have your employment contracts or agreements drafted by an employment law specialist.

Workplace policies and procedures are the moral compass for your business. They are dynamic and evolving documents that present a vision of your organisation’s culture, values, systems and processes. Drafted correctly, the policies and procedures form the backbone of your expected behaviours of your employees.

Policies help educate staff on; acceptable and unacceptable standards and conduct, maintain a safe workplace, protect employees from risks or injuries, protect employers from liability for non-compliance with legislation, manage employee performance and justify disciplinary actions. Policies and procedures that should be implemented by your business include, but are not limited to:

• Alcohol & Drugs Policy,
• Anti-Bullying & Anti-Harassment Policy,
• Code of Conduct,
• Discipline & Termination Policy,
• Equal Employment Opportunity & Anti-Discrimination Policy,
• Emergency Evacuation Procedure,
• Internet Policy,
• Leave Policy,
• Parental Leave,
• Social Media Policy,
• Work Health & Safety Policy, and
• Working from Home Policy.

Best Practices

• Develop policies that are clear and ensure processes are in place so that all staff have been trained and inducted on them.
• Ensure employees have acknowledged they have read and understand the policies. For example, have employees sign individual policies.
• Include a provision in the contract of employment that states policies and procedures may be varied from time to time.
• Review periodically as businesses and laws change/evolve.

An employment contract or agreement fundamentally covers the working relationship between an employer and an employee. A well drafted employment contract provides all parties with a clear understanding of their obligations and understanding of the terms of employment. It may sound surprising, but there is no obligation under law to have a written contract of employment.

However, a well written employment contract or agreement provides certainty and removes ambiguity if there is a breakdown in the relationship between the employer and employee. A verbal or poorly drafted document invites disputes in relation to the terms and conditions of employment that can have unforeseen consequences for your business. For example, where there is no written contract there will likely be no clauses dealing with confidentiality, notice required to be given by employees if they wish to resign or restraints of trade which could expose your business to significant losses and damages with no contractual provisions to rely upon.

Choosing what to include and what to leave out of an employment contract can be a tricky exercise. Amongst other things, it should provide a clear outline of the employee’s classification, duties and responsibilities, remuneration, leave entitlements and may also deal with certain other important matters including:

• Confidentiality,
• Ownership of intellectual property created during employment, and

Employment contracts must not include clauses that are contrary to industrial laws or instruments, as these will be unenforceable. The National Employment Standards are minimum entitlements that cannot be contracted out of by employers and there are significant penalties for contraventions of them.

Your employment contract may also refer to a Modern Award or Enterprise Bargaining Agreement.

Modern Awards
Modern Awards are legal documents that apply to over 100 industries that outline minimum rates of pay and conditions of employment. Employers cannot contract out of provisions of Modern Awards as they are minimum employment conditions, nor can a Modern Award offer terms less favourable than the National Employment Standards.

Enterprise Bargaining Agreements
For large corporate entities, terms and conditions of employment may also be governed by an Enterprise Bargaining Agreement. These types of agreements are most common to cover specific circumstances or conditions relevant to that employer. Enterprise Bargaining Agreements are not allowed to offer conditions that are less than base standards contained in the National Employment Standards.

Best Practices

• Speak with one of our Employment Lawyers to ensure that your contracts are drafted with clarity and precision.
• Obtain advice from our Employment Lawyers in respect of the protection of your confidential information, restraints of trade, overpayments and the management of staff behaviour and conduct.
• Regularly review and update your employment contracts or agreements.

Employee entitlements can vary dependent upon the classification of an employee.

An employee can be:

• Full-time,
• Part-time,
• Casual,
• Fixed term or fixed task,
• Shift workers,
• Daily hire and weekly hire,
• Apprentices and Trainees, and
• Outworkers.

Employment relationships and classifications often evolve over time as business needs either expand or contract. There are subtle differences between the above classifications of employment, and it is critical to ensure that your employees are correctly classified.

Confusion can expose your business to significant penalties and claims from employees seeking owed wages and entitlements that the employer had not anticipated. Incorrect classification of employees will likely be a breach of the National Employment Standards and can result in penalties under the Fair Work Act 2009 of up to $13,320.00 for individuals and $66,600.00 for corporations per contravention. These provisions are “civil remedy provisions”, meaning company Directors can be held personally liable for a contravention by the company.

Best Practices

• Review your employees’ classifications regularly and ensure employment contracts or agreements adequately reflect the roles and the terms and conditions.
• Consult with one of our Employment Lawyers should you be in any doubt over the remuneration and entitlements claimed by an employee.
• Seek advice from our Employment Lawyers should you ever be in doubt in relation to the classification of your workers.

Contracting has emerged as an alternative to a traditional employee and employer relationship. An independent contractor can be engaged as a natural person or an incorporated entity. A clear advantage in using contracted labour is the flexibility to turn labour on and off quickly.

Further, there are instances where parties may wish to be engaged as an independent contractor, particularly where they are available to service multiple businesses and not be limited to just being engaged by one business. The freedom to be engaged by multiple businesses and the liberty to choose their own hours are just some of the main benefits of being an independent contractor.

When dealing with potential requests by individuals to be engaged as independent contractors, it is critical for a worker to be correctly classified as an employee or independent contractor by your business. The Fair Work Act 2009 provides serious penalties for misclassification of an employment relationship. Penalties can include up to $13,320.00 for individuals and $66,600.00 for companies per contravention. Further, these provisions are “civil remedy provisions”, meaning company Directors can be held personally liable for incorrectly classifying a worker’s relationship with the business.

As the Federal Court of Australia said in the decision of Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179, 184: “The parties cannot create something which has every feature of a rooster, call it a duck and insist that everybody else recognise it as a duck.”

Before hiring a new worker, the first step in the process is to determine whether they will be engaged as an employee or contractor. The distinction is important because:

• It affects tax, superannuation and other financial obligations to the worker such as employee entitlements, and
• Penalties are severe for incorrectly classifying workers or attempting to disguise employees as independent contractors.

There are in excess of 15 indicia which are considered when determining if a worker is an employee or contractor. Courts will always look towards the totality of the relationship when determining the status of a worker’s engagement, with one factor no more important than the other. Some of the indicia include:

• Does the worker have control over the way they perform the task?
• Are they paid according to task completion, rather than receiving wages based on time worked?
• Does the worker have PAYG tax deducted from their pay?
• Do they receive paid holidays or sick leave?
• Are tax invoices rendered for payment on completion of tasks?

Best Practices

• Seek advice from one of our Employment Lawyers should you ever be in doubt in relation to the classification of your workers.
• Speak with one of our Employment Lawyers in relation to the engagement of your workers and their obligations based on their classification.
• Review your engagement of workers periodically to ensure they are correctly classified.

A well drafted restraint of trade clause is the most effective way an employer can prevent a former employee from poaching their clients or staff and using its confidential information. However, an employer needs to consider whether the “restraint” is reasonably necessary to genuinely protect the employer’s goodwill and legitimate interests.

Any provision which imposes restrictions on an individual’s freedom to trade or be employed will likely be held to be illegal and unenforceable, unless it is proven that the restriction is reasonable having regard to both parties’ interests and the overarching public interest.

To ensure that your business interests are protected, it is vital that your restraint of trade clauses are effective and enforceable. Your employment contracts should be reviewed periodically and updated when necessary to ensure the changing nature of your employee’s roles are reflected in the restraints of trade.

In particular, should you decide to promote an employee, you should also consider the introduction of more substantial restraints to reflect the promotion and access to clients/customers and confidential business information.

Best Practices

• Ensure that all relevant employees have restraint of trade clauses in their contracts.
• Consult with one of our Employment Lawyers on a regular basis to discuss the enforceability of the restraints of trade.
• Speak with one of our Employment Lawyers in relation to including a “cascading restraint clause” in your employment contracts.
• Closely monitor employees who have left your business and are subject to restraints of trade and consult with one of our Employment Lawyers immediately if the ex-employee is in breach of their obligations.

The National Employment Standards (“NES”) are a list of 11 minimum entitlements to which all Australian employees are entitled. The NES and the national minimum wage outline the minimum entitlements afforded to all Australian employees. These include:

1. Working a maximum of 38 weekly hours of work (unless additional hours are reasonable),
2. Making requests for flexible working arrangements if employed with the same employer for at least 12 months. These include changes to hours, patterns or locations of work,
3. Parental leave and related entitlements,
4. Offers and requests to convert from casual to permanent employment,
5. Annual leave of four (4) weeks per year based on their ordinary hours of work,
6. Personal/carer’s leave, compassionate leave, unpaid family leave and domestic violence leave,
7. Community service leave for activities such as voluntary emergency management services or jury duty,
8. Long service leave as applicable based on the relevant State based legislation,
9. Public holiday rates if required to work,
10. Notice of termination periods and redundancy payments, and
11. Compulsory receipt of The Fair Work Information Statement upon commencement of employment.

It is important to remember that any modern award, enterprise agreement or contract of employment cannot exclude the NES or provide an entitlement that is less than the NES. Contravention of the NES can result in penalties of up to $13,320.00 for an individual and $66,600.00 for a company per offence.

Best Practices

• Consult with one of our Employment Lawyers should you have any doubt in relation to the NES.
• Ensure that you are aware of each of your employee’s employment status and which NES entitlements are applicable.
• Review your contracts and employment documents regularly.

Employee entitlements to long service leave are contained within state-based legislation and are not included in the Fair Work Act 2009 (Cth) or the National Employment Standards. In NSW, all employees are covered by the Long Service Leave Act 1955 regardless of whether they are fulltime, part-time or casual. The Long Service Leave Act provides that:

• If employees are employed by the same employer for 10 years, they are entitled to two (2) months (8.67 weeks) paid leave, and
• After 10 years, an employee is entitled to an additional one (1) month (4.33 weeks) of leave for every additional five (5) years worked for the employer.

The leave will be calculated at the employee’s ordinary gross weekly wage. The ordinary gross weekly wage is the employee’s base rate of pay for their usual hours of work and does not include:

• Overtime,
• Bonuses,
• Allowances,
• Shift loadings, or
• Penalties.

As an employer, it is important to be aware of an employee’s entitlement to pro-rata long service leave. An employee will be entitled to a prorate payment of long service leave if they have been employed by the same employer for at least five (5) years and:

• The employee terminates their employment on account of illness, incapacity or other pressing necessity, or by reason of the death of the worker, or
• The employer terminates the employee’s employment for any reason other than the worker’s serious and wilful misconduct.

Best Practices

• Monitor the duration of your employee’s employment with your business and begin to account for a pro-rata entitlement upon completion of five (5) years’ service.
• Be aware when terminating employees who have been employed for five (5) years of their entitlements under the Long Service Leave Act.
• When buying a business, be aware of transferring employees and their entitlement to long service leave.
• Obtain advice should an employee look to resign for one of the above mentioned prescribed reasons when looking to claim their pro-rata payment.

Ensuring employees remain productive and are performing to the best of their abilities is paramount to the overall success of a business. Performance management can include a variety of things such as ongoing mentoring and support, as well as procedures to address under performance and to hold employees accountable for minimum standards associated with their roles.

Performance management may not be necessary if the employee has engaged in serious misconduct. There is no hard and fast rule on the number/frequency of performance management meetings to be held with an employee, however, procedural fairness and following any internal policies will be considered by the Fair Work Commission should an employee bring an Unfair Dismissal Application.

Clear and open communication with an employee is the most effective mechanism to managing poor performance. Where an employee’s performance is not at a satisfactory level it is important to:

• Identify the issues and the behaviour that needs to improve,
• Assess the issues and consider the implications of failing to rectify the issues
• Arrange a meeting with your employee, inform the employee of the purpose of the conference, that they are entitled to a support person to be present and explore possible resolutions with the employee,
• Document requirements for the employee to improve performance within a set period of time,
• Arrange a follow up conference with the employee and assess their performance in line with the agreed requirements, and
• Monitor the performance and keep records of the agreed objectives between the parties. If the performance has improved then the business can carry on as normal, however, if inadequate improvements have been made then the employer may consider termination of the employee’s employment.

A successful performance management program can have significant benefits for a business. It allows for any tension or dispute to be resolved with minimal disruption to the business and prevents any decisions in relation to termination that may lead to employees lodging an unfair dismissal claim with the Fair Work Commission.

Best Practices

• Seek advice from one of our Employment Lawyers prior to commencing any performance management processes.
• Ensure you have policies, procedures, contracts and detailed job descriptions that clearly show expected standards.

Unfair dismissal is when an employee is dismissed from their job and the dismissal was harsh, unjust or unreasonable. Ultimately, it will be the Fair Work Commission who decides whether a dismissal is unfair.

To protect themselves against such claims, an employer should have adequate employment contracts, policies and procedures that provide clear disciplinary rules and procedures for termination of employment.

If a dismissal is found to be unfair, employees can seek compensation of up to the lower of six (6) months’ salary or half the high-income threshold (whichever is lower).
A person has been unfairly dismissed if the Fair Work Commission is satisfied that:

• The employee has been dismissed from their employment,
• The dismissal was harsh, unjust, unreasonable,
• In the case of a business with less than 15 employees (based on head count), the dismissal was not consistent with the Small Business Fair Dismissal Code, and
• The dismissal was not a case of a genuine redundancy.

An employee has 21 days from the date the dismissal takes effect to bring an application for unfair dismissal. Any application made outside this timeframe will need to show exceptional reasons as to why the application was not made within the 21 day timeframe.

There are certain instances where an employer can object to an employee making an unfair dismissal application on a jurisdictional ground. This means that the dismissed employee does not have the right to bring an unfair dismissal application in the Fair Work Commission. These objections include:

• The unfair dismissal application has been made outside the 21-day timeframe,
• The employee had not served the minimum employment period (six (6) months or 12 months for a small business),
• The employee earned above the high-income threshold and was not employed by a Modern Award or Enterprise Agreement,
• The employee was not an employee or was a casual employee,
• The employer was not a national system employer,
• The employee was not dismissed or had resigned voluntarily, and
• The dismissal was a genuine redundancy.

Whether the employee has engaged in serious misconduct will also need to be considered by the employer. Serious misconduct is defined in the Fair Work Regulations and involves an employee deliberately behaving in a manner that is inconsistent with the continuation of their employment and will allow an employer to terminate the employee’s employment without notice.

Best Practices

• Have clear policies and procedures in place in relation to performance management and termination of employees.
• Speak with one of our Employment Lawyers before you dismiss or take disciplinary action against any employee to minimise the risk of an unfair dismissal application being made.
• Should an employee make an unfair dismissal application in the Fair Work Commission, speak with one of our Employment Lawyers immediately.

The general protections provisions of the Fair Work Act 2009 aim to eliminate workplace discrimination and protect workplace rights of employees (including casuals). An employer contravenes the general protections provisions of the Fair Work Act 2009 if they take an adverse action because of the general protections that are afforded to an employee.

What is adverse action?

• Adverse action includes doing, threatening, or organising any of the following:
• Dismissing an employee, injuring them in their employment, altering their position to their detriment, or discriminating between them and other employees,
• Refusing to employ a prospective employee or discriminating against them in the terms and conditions they are offered, and
• Terminating a contract with an independent contractor, injuring them or altering the position to their detriment, refusing to use their services or to supply goods and services to them, or discriminating against them in the terms and conditions they are offered to be engaged upon.

What is a workplace right?

A workplace right exists where a person:

• Is entitled to a benefit or has a role or responsibility under a workplace law, workplace instrument or an order made by an industrial body,
• Is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument,
• Has the capacity under a workplace law to make a complaint or inquiry to a person to seek compliance with that workplace law or workplace instrument or if the person is an employee, in relation to their employment.

How to deal with General Protections Applications

General protections applications are dealt with initially by the Fair Work Commission by way of application from an affected employee or contractor.
If the adverse action resulted in termination of employment, an application must be lodged within 21 days of the termination taking effect. Leave however, may be sought in special circumstances for the filing of a late application.

If an employer receives such an application, they must file a response with the Fair Work Commission within 14 days. The matter is subsequently referred to conciliation and if not resolved the Fair Work Commission will issue a certificate under Section 368 of the Fair Work Act if satisfied that all reasonable attempts to resolve the dispute have failed.
There is a reverse onus of proof in relation to general protections applications that requires the employer or Principal Contractor to prove that any action taken by them was not as a result of the exercise of a workplace right or due to discrimination by them.

Best Practices

• When making decisions with respect to employees, contractors, and employment/contractual arrangements consider whether those persons have previously sought to exercise any right or entitlement which could be a workplace right under legislation or an industrial instrument.
• If such circumstances exist, care should be taken when making any decisions to vary employment circumstances or terminate any employment or contractual arrangement.
• Employees or contractors should not be singled out and receive adverse treatment because of their reliance upon a workplace right or because they have a trait which could provide them with protection under anti-discrimination law.
• Any decision by an employer or a Principal Contractor should be fully documented with adequate reasons provided.

An employee’s position is genuinely made redundant when:

• The employer no longer requires the job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise, and
• The employer has complied with any obligation imposed by any applicable modern award or enterprise agreement to consult with the employee in relation to the redundancy.

An employee may still be genuinely made redundant where there are aspects of the employee’s duties still being performed by other employees. The test is whether the previous job is still in existence, rather than a question as to whether the duties have survived in some form.

A redundancy will not be a genuine redundancy if it would have been reasonable in all the circumstances to redeploy the person within:

• The employer’s enterprise, or
• The enterprise of an associated entity of the employer.

An employer who fails to comply with the legislation in relation to redundancies can face an unfair dismissal application from employees who have been made redundant. Where the Fair Work Commission finds that an employer has not complied with Section 389 of the Fair Work Act 2009 (Cth) in relation to a redundancy, a termination may be found to be unfair and reinstatement or financial compensation can be ordered.

Where an employee is made redundant, they are entitled to redundancy pay based upon their years of service. However, there are exemptions to this which include:

• The employee has not completed at least 12 months’ continuous service,
• Employee was terminated for serious misconduct,
• Casual employees,
• Trainees or apprentices, and
• Employees of Small Businesses (less than 15 employees).

There are also circumstances when an employer can make an application to the Fair Work Commission seeking an order to vary the redundancy pay that is payable to an employee. Such applications can be made when:

• The employer can satisfy the Fair Work Commission that it is not financially competent or possessed of the necessary funds to make the payment, and has no reasonable source of funds, or
• The employer obtains other acceptable employment for the employee.

Best Practices

• Speak with one of our Employment Lawyers when considering redundancies and obtain advice.
• Consider sourcing alternative employment for employees prior to making them redundant in order to make an application to the Fair Work Commission to vary redundancy pay.
• Consult with any employees if required under a Modern Award or Enterprise Bargaining Agreement with regards to workplace change.

All workers should be able to attend their workplace without being bullied or harassed (including sexual harassment).

The recent Respect at Work Amendments to the Fair Work Act 2009 (Cth) have expanded the powers of the Fair Work Commission to also make orders to stop sexual harassment in the workplace.

Sexual harassment involves unwelcome sexual advances, unwelcome requests for sexual favours or other unwelcome conduct of a sexual nature in relation to another person. Sexual harassment is also a form of serious misconduct and can lead to dismissal without notice.

A worker is bullied at work if a person or group of people repeatedly act unreasonably towards them, or a group of workers and the behaviour creates a risk to health and safety.

Examples of bullying can include:

• Behaving aggressively,
• Unwanted or unsolicited messages outside the workplace,
• Teasing and practical jokes,
• Pressuring someone to behave inappropriately,
• Exclusion from work-related events or functions, and
• Unreasonable workplace demands.

Bullying and harassment in the workplace can have a significant impact on workers. These include:

• Decreased productivity,
• Feelings of anxiousness and stress in the workplace,
• Deliberately avoiding work,
• A breakdown of trust between the worker and the employer, and
• A toll on relationships outside the workplace.

As an employer, you have obligations under the Work Health and Safety Act 2011 (NSW) to provide a safe workplace. Further, a duty of care is owed to workers for their health and wellbeing whilst attending the workplace. A failure to uphold these obligations can have dire consequences for both your business and your employees.

Should a bullying or harassment issue in the workplace not be resolved, workers can make an application to the Fair Work Commission for an order to stop bullying. This process can involve mediation or a hearing where penalties ordered by the Fair Work Commission can be extremely serious if substantiated.

The bullying and harassment provisions/orders are “civil remedy provisions“ of the Fair Work Act 2009 meaning company Directors can be held personally liable for contraventions by the company. Further, a worker is protected from any adverse actions being made against them for raising a bullying or harassment complaint due to the General Protections provisions of the Fair Work Act 2009.

Best Practices

• Consult with one of our Employment Lawyers to develop a Bullying & Harassment Policy that provides a clear pathway and guideline for workers who raise complaints of bullying or harassment.
• Ensure any bullying or harassment complaint is dealt with expeditiously and with due care and skill.
• Speak with one of our Employment Lawyers should you be in doubt over your obligations under the Fair Work Act 2009 or Work Health and Safety Act 2011 (NSW).

Workplace investigations are becoming increasingly common in employer’s responses to handling allegations and disputes. Allegations involving discrimination, fraud, misconduct, harassment and bullying can be highly personal and involve multiple people within the business. It is important to understand that employee’s rights to procedural fairness are paramount and that thorough investigations should take place if allegations in relation to any of the above mentioned topics occur. Thorough investigations allow for the appropriate disciplinary action to be taken and means decisions are not rushed.

A workplace investigation generally involves the collation of evidence, interviewing of witnesses and providing recommendations or findings to an employer. In particular, an external workplace investigator should be used if there are any issues or concerns in relation to the transparency or independence of an employer to undertake the investigation without a conflict of interest.

We regularly assist businesses undertake workplace investigations and also assist individuals in handling workplace investigation disputes. We are able to provide advice in relation to the investigation process and recommend appropriate disciplinary steps if required.

Best Practices

• Ensure that employees are afforded procedural fairness in relation to any allegations of misconduct.
• Be transparent and independent in your investigation process.
• Engage an external third party to undertake the investigation if you cannot be independent or transparent.

The national minimum wage for a 38-hour week (subject to applicable taxation) is reviewed every 12 months by the Fair Work Commission. Casual employees who are covered by the national minimum wage will also receive a 25% casual loading on top of the national minimum wage.

Where an employee is covered by a modern award, their rate of pay will be calculated by reference to the relevant award they are employed under. However, it is important to consider that employees may also be entitled to:

• Penalty rates,
• Allowances, and
• Overtime.

Should your business pay employees above the national minimum wage and they are covered under a modern award you may wish to include an “absorption clause” in your employment contracts. This will allow you to “set off” the above award rates against any payable overtime or penalty rates to the employee. However, the failure to have one of these clauses can lead to employees being underpaid and a potential “wage theft” claim being made.

Wage theft is an extremely topical point of conversation in today’s employment landscape. Failure to remunerate workers correctly can lead to significant scrutiny and expensive fines from the Fair Work Ombudsman. This can become an increasingly difficult exercise as employees become more experienced within your business and are entitled to increased remuneration.

As an employer, the obligation is on you to ensure that you are always remunerating your employees correctly.

Underpayment claims and breaches of modern awards are civil remedy provisions of the Fair Work Act 2009, meaning company Directors can be held personally liable for contraventions by the company. Further, a worker is protected from any adverse actions being made against them for raising an underpayment claim due to the General Protections provision of the Fair Work Act 2009.

Best Practices

• Speak with one of our Employment Lawyers in relation to your employees and your obligations under modern awards and Employment Contracts.
• Ensure you review employees roles and responsibilities regularly in comparison to their level of seniority and duties performed.
• Speak with one of our Employment Lawyers immediately if an underpayment or “wage theft” claim is made.

It is critical for all parties to a sale of business transaction to understand their legal rights and obligations in relation to existing employees of the business and the financial cost of termination and/or transferring of employment.

The Fair Work Act 2009 (Cth) defines when a transfer of business occurs. A transfer of business occurs when buying and selling a business if:

• The employment of an employee of the old employer is terminated, and
• Within three (3) months after the termination, the employee is employed by the new employer, and
• The work the employee performs for the new employer is the same, or substantially the same as the work the employee performed for the older employer, and
• Either:
  • The assets of the business are sold,
  • The employers are associated entities, or
  • The previous employer outsources the work of its employees to the new employer.

When a business is sold, the purchaser will need to determine the ongoing needs and demands of the business and decide whether to:

• Not offer an employee employment with the new business,
• Offer the employee employment but decline to acknowledge the employee’s prior period of service in the business, or
• Offer employment and recognise an employee’s prior period of service.

Each of these scenarios have different financial consequences and legal obligations that should be considered in settlement adjustments prior to completion of the sale.

If there is not a transfer of business as defined in Section 311 of the Fair Work Act 2009 (Cth), an employee’s period of service with the old employer will not count as service with the new employer. As such, the old employer would deal with the accrued entitlements as if it were an ordinary redundancy situation and the new employer would not need to recognise the employee’s previous service.

Best Practices

• Consider warranties in the sale contract in relation to employees of the business and their accrued entitlements and period of employment.
• Undertake due diligence and obtain legal advice in relation to the sale (or purchase) of a business.
• Ensure appropriate adjustments with regard to employee entitlements are made on settlement.
• Work with our corporate growth and advisory division for ongoing legal support and assistance.

As an employer and a business owner, it is your client relationships, employee relationships, confidential information, trade secrets and know how that set you apart from your competitors. If these intangible assets walk out the door with an existing or former employee and straight into the hands of a rival, the consequences can be catastrophic. As such, it is critical that your business has significant protections in place to ensure it is clear to your employees what they can do whilst employed by you and also are well aware of their obligations upon leaving their employment.

An employee’s obligations relating to client relationships, fellow employees, confidential information, trade secrets and know how, obtained during their employment can arise from:

• Express and implied terms in the employee’s contract of employment such as restraint of trade clauses,
• An implied fiduciary duty to not misuse employer’s confidential information, and
• The equitable doctrine of confidence.

Whilst implied terms or equitable doctrines may provide some relief to employers, it is strongly recommended to have express terms in your employee’s contracts of employment, the provision of which act as a deterrent themselves.

Where there’s a breach of contract, employers can be entitled to urgent injunctive relief, damages against the employee or potentially the new employer for tortious interference.

Best Practices

• Have in place employment contracts that deal with restraint of trade and confidential information post-employment.
• Speak with one of our Employment Lawyers if you are concerned in relation to a former employee’s conduct.

Tortious interference occurs when a person intentionally damages someone else’s contractual relationship with a third party and that damage causes economic harm. This occurs quite frequently in employment situations where a new employer is aware of a new employee’s restraint of trade obligations with their old employer, however, induces them to breach their restraint of trade regardless.

As an employer, should you be offering employment to new employees, you should ensure you are aware if they have any active restraint of trade clauses and ensure that you do not induce the employee to breach their restraints.

Best Practices

• Seek advice from one of our Employment Lawyers and issue prompt demands should a restraint of trade be breached.
• Get advice from one of our Employment Lawyers about seeking injunctive relief without delay.
• Monitor employee’s restraints of trades and expiry dates.

There are a number of provisions within the Fair Work Act 2009 that are identified as civil remedy provisions. Breaches of a civil remedy provision can expose an employer to penalties of up to $63,000.00 per conviction for a corporation.

Civil remedy provisions include:

• Obligations to comply with the National Employment Standards, Modern Awards and Enterprise Agreements,
• General Protection Claims, and
• Sham Contracting provisions.

Quite alarmingly for corporations, Section 550 of the Fair Work Act 2009 provides “a person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision”. The effect of this is that an individual can be held responsible if they have aided, abetted, counselled or procured any contravention.

Further, the Courts may, on application, make an order for a person to pay a pecuniary penalty considered appropriate if satisfied that the person has contravened a civil remedy provision. These penalties are derived from Section 539 of the Fair Work Act 2009 (Cth).

Best Practices

• If you are a manager or senior employee, ensure you are aware and compliant with all civil remedy provisions in the Fair Work Act.
• Ensure complaints of employees are dealt with sufficient care and skill.
• Seek advice from one of our Employment Lawyers should your company be in breach of civil remedy provisions without delay.

As an employer, you need to remain careful when offering or making representations to new employees. Section 31 of The Australian Consumer Law states that in relation to employment, a person must not engage in conduct that is liable to mislead a perspective employee as to:

• The availability, nature, terms or conditions of the employment, or
• Any other matters relating to the employment.

Whilst recruitment is undoubtedly one of the most difficult processes undertaken by employers, it is critical to not overstate themselves to “win over” a prospective candidate. By overstating the employer’s position or terms and conditions of employment, employers can expose themselves to a significant risk of litigation from prospective employees due to conduct that occurred during the recruitment process. Common examples of this include, misleading employees in relation to remuneration, quick career progression, non-financial benefits, the length of the employment period or potential incentive schemes offered the employee.

Significant financial penalties may apply if the business is found to have engaged in misleading and deceptive conduct in connection with the person’s employment.

Best Practices

• Ensure that all statements or representations made to the employee at all stages of the recruitment process are not misleading or overstated to entice the prospective employee to join your business.
• Undertake a detailed review of all job advertisements and marketing to confirm that statements made about the business are an accurate reflection of the conditions that can be offered by the business.
• Include an entire agreement clause in any contract of employment offered to the employee.