Employment Law & Workplace Relations
At Atkinson Vinden we provide practical commercial advice to managers and employers from corporate clients to small business.
Ann Mary Edwards has a Master of Laws majoring in Industrial Relations and for ten years has focused on providing cost effective advice. Emphasis is on prevention as well as resolution of disputes.
Areas include:
- The employment process;
- The contract of employment;
- Staff discipline issues;
- When you can dismiss an employee;
- How to dismiss an employee (and how not to do so!);
- Measures to prevent liability;
- Ownership of intellectual property created by an employee;
- Measures to retain control of works created by an employee;
- Redundancies and terminations;
- Occupational Health &
- Safety issues and defence of charges;
Defence of all types of employee related proceedings.
Employment Law Explained
In recent years many employers have become involved in disputes with employees and some of these disputes have resulted in claims of wrongful dismissal.
Such claims are often expensive for employers. Apart from any settlement which is paid to the employee, senior staff are usually required to spend substantial time in preparing and defending the proceedings.
What is the alternative? To "get it right" at the commencement of the relationship with a new employee.
What terms are implied? What can be agreed? What should an employer do?... these are all questions which we address.
This information has been prepared by Ann Mary Edwards, a Director with our firm who has substantial experience in Industrial and Employment law. It is our hope that the following will be of practical assistance to employers in this difficult area.
Key Contact:
Articles:
Discrimination
How can I protect my company against discrimination claims?
State and Federal laws do not tolerate discrimination in the workplace. To succeed in a discrimination claim, an employee needs to prove that discrimination was only one of a number of factors that has led to termination. Employers therefore need to be vigilant regarding discrimination in the workplace, and develop a sound policy to enforce proper standards.
Unlawful discrimination occurs when a person is discriminated against on the following grounds:
- Sex
- marital status
- pregnancy or a potential pregnancy
- caring and family responsibilities
- race, colour, ethnicity or religious background, descent or nationality
- disability
- age
- HIV/AIDS status
- Homosexuality
- transgenderism (ie. anyone who lives, has lived or wants to live as a member of the opposite gender to their birth).
If an employee believes that they are the subject of unlawful discrimination in the workplace, they should in the first instance approach a supervisor, Human Resources Manager, or designated workplace harassment contact officer or an appropriate coordinator in the workplace. It is important therefore that your staff understand the chain of command for making such complaints.
If this does not provide a satisfactory resolution, there is a risk the aggrieved employee will contact the NSW Anti-Discrimination Board or the Australian Human Rights Commission (depending on the standing of the employee). They will then be provided with a complaint form to complete and return and the Board or Commission will investigate and endeavour to conciliate the complaint. This would involve your company providing input on the complaint and possibly the need to justify company policy.
Most importantly, the focus of legal procedure in discrimination is upon conciliation to attempt a resolution of the complaints made by an individual or groups of individuals.
The conciliation process is confidential between the parties and focuses on:
- trying to clarify the complaint and ascertain whether any breach of the legislation can be identified;
- trying to resolve the differences between the parties by structuring a resolution that may include compensation, reinstatement, an apology, or a change in policy or practice.
If the conciliation breaks down or is not possible, several options are possible. In the case of the Anti-discrimination Board, the President can refer the matter to the Administrative Decisions Tribunal for determination. In the case of the Australian Human Rights Commission, the aggrieved employee can commence proceedings in the Federal Court. If a claim is successful in either of these jurisdictions, the aggrieved employee can expect to receive an Award of damages which include an amount as compensation for the distress and humiliation suffered and a further amount for any wage loss suffered.
Where to get further information
NSW Anti-Discrimination Board: Level 17/ 201 Elizabeth St. Sydney 02 9268 5544
www.lawlink.nsw.gov.au/adb
Australian Human Rights Commission (HREOC): 9284 9600
HREOC Complaints Infoline: 1300 656 419, www.humanrights.gov.au
Advice recommended
A discrimination claim in the workplace can have tremendously damaging affect of staff morale. It can also cause a decline in productivity. Employers should obtain urgent legal advice to contain a discrimination claim if possible.
We welcome your enquiries regarding unfair dismissal claims. Please contact Ann Mary Edwards, Rod Berry or Teresa Dodaro for further information on (02) 9411 4466.
Unfair Dismissal and Unlawful Termination
How can I protect my company against Unfair Dismissal and Unlawful Termination claims?
Having a claim lodged against you can be disruptive to your organisation and costly, both in terms of the cost of defending it and the effect it has on you and the people who work for you. For this reason, we would advise an employer to obtain legal advice regarding any proposal to terminate a contract of employment or to make employees redundant, as this can save considerable legal costs and time in the future.
It should also be noted that if a matter reaches Fair Work Australia ("FWA") each party is usually responsible for their own costs, irrespective of the outcome of the decision of the the FWA. This means that it is critical for employers to act swiftly to resolve the matter if possible, before it gets out of hand.
Contact Us
We welcome your enquiries regarding unfair dismissal and unfair contract claims. Please contact Rod Berry or Ann Mary Edwards, Rod Berry or Teresa Dodaro on (02) 9411 4466 to discuss your particular circumstances.
Smarter Employment Contracts
What should be included in an Employment contract to protect your company's interests?
Introduction
It is commonsense that a person would not buy a house for $500,000 without first checking the contract.
It is quite puzzling then that many employers are so relaxed about their employment contracts that they do not give them proper consideration. If a person is employed for $90,000 per annum plus super and they are employed for 5 years, that is a $500,000 investment made by the company. A properly worded contract is merited.
The benefit of spending time getting the contract right is obvious given the significant damages that may be payable if the employment contract goes sour.
For business with important marketing and trade secrets, employment contracts may be used to restrain an employee from damaging the business post-employment by way of carefully worded confidentiality and anti-competitive clauses.
There are other benefits to having properly worded employment contracts. Most importantly, a properly worded employment contract provides comfort to both employer and employee as it sets out clear expectations. Where conflict does arise, a properly worded contract will make careful provision for resolving such disputes without having to take the matter to court.
At Atkinson Vinden we believe it is worth spending the time drafting high quality employment contracts. Once an employer has taken the trouble of preparing a carefully worded employment contract that contract can be replicated and used for new staff that later commence with the company.
Contract Audit
Your company may benefit from an employment contract audit. Atkinson Vinden provides a service whereby we review your employment contracts and provide you with specific feedback and guidance as to how they can be tightened to protect your company's interests. If you are interested in this service, please do not hesitate to contact Ann Mary Edwards, Rod Berry or Teresa Dodaro, Employment Lawyers, at Atkinson Vinden on (02) 9411 4466.
Casual Employees
How does the treatment of casual employees differ from that of permanent employees in the workplace?
This information sheet will discuss the important factors to consider with regard to:
- Defining casual employment
- Unfair Dismissal
- Entitlements
- Tips for managing casual employees
Casual employment - a definition
There are many common misconceptions about what casual employment means. Strictly speaking, a casual employee is an employee who has varying hours of work with no expectation of ongoing work. Such an employee is said to enter into a new employment contract each time he or she accepts an offer of work, even if that offer is from the same employer.
At times, even though an employment relationship is classified by the parties involved as being casual in nature, it may be that a court would consider the employment to be permanent because the employee has an expectation of ongoing work. This commonly arises when the "casual" is employed for the same hours each and every week over a considerable period of time.
Employment relationships are complex and change as economic circumstances change. The courts will take into account a whole host of factors in determining the nature of an employment relationship. Employers need to approach this issue cautiously so that they avoid unexpected obligations to such employees.
Entitlements
With the increasing casualisation of labour, many in government and employee advocate groups are concerned that casual employees are missing out on entitlements to sick leave, annual leave and the benefits of permanence of employment. As courts and legislatures try to deal with these issues, new approaches to the problem of casual employment are constantly being developed.
In some instances, for example, where a court holds that a person should have been employed as a permanent employee rather than as a casual, the court will award back pay of annual leave, sick leave, and long service leave where appropriate. Such actions are usually brought by way of an "Application for Recovery of Moneys".
Where there is some doubt, it is sometimes in the best interests of both employer and employee to clarify matters by engaging employees on a permanent basis. Where casual employment is used, employers and employees should be careful to ensure that the law views the relationship in the same way as the parties do.
As was famously said in one case concerning casual employment, "the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck"!
Tips for managing casual employment
In relation to casual employees, employers should be careful to:
- avoid promising continuity of employment;
- avoid contracts or letters of appointment that appear to create permanency;
- vary shifts and rosters so as to avoid an expectation of regular and ongoing employment;
- consider whether the employment relationship is such that a court might consider the casual employment to be designed to avoid paying employee entitlements. In this case, the employer should discuss with the employee whether they would like to become a permanent employee.
For further advice on casual employment, please contact Ann Mary Edwards, Rod Berry or Teresa Dodaro on (02) 9411 4466.
