It is vital that you are aware of common workplace myths that are out there so that you can clearly distinguish fact from fiction before making important decisions as an employer.
Myth 1: I have to issue 3 written warnings before I can sack someone
Fact: There is no legal requirement to issue 3 written warnings before termination. You should, however, take steps to prevent a pesky unfair dismissal claim. Sometimes a single serious instance of employee misconduct may be enough to justify termination. However, in the case of poor performance, you will often be required to undertake some performance management before termination.
Myth 2: I can only request a medical certificate if an employee takes sick leave around a weekend or a public holiday
Fact: As the employer, you have the right to request a medical certificate on each occasion that an employee is absent due to illness or injury. The employee does not have to take sick leave around a weekend or public holiday, nor does the employee need to be absent for 3 or more consecutive days, for you to request such evidence.
Myth 3: It is safe to terminate an employee within their first 6 months
Fact: It is true that an employee must have served the Minimum Employment Period before they can bring an Unfair Dismissal claim. But an employee’s length of service will not stop them from bringing a costly General Protections claim or a claim under Australia’s anti-discrimination legislation. You should always consider the range of potential claims that you are exposed to before dismissing an employee.
Myth 4: There is no risk if I just cut a casual employee’s shifts, rather than sacking them
Fact: Although a casual employee will generally have no entitlement to fixed shifts or any expectation of work, you should be careful to avoid risking a constructive dismissal. A constructive dismissal occurs where your actions force the employee to resign. An employee who has been forced to resign because of your actions as an employer will be able to bring the same claims as one who was actually dismissed.
Myth 5: If a worker has an ABN then they are an independent contractor
Fact: The fact that someone has an ABN does not make them an independent contractor. Whether a person is in fact an employee or a contractor is a complex legal question that depends on a range of factors and the nature of the relationship as a whole. Sham contracting is illegal and there are hefty penalties for employers who get it wrong. You should always seek assistance to minimise the risk to your business if you engage independent contractors.
For more information on the recommendations and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.