By Bethany Silverman
There are many workplace myths about managing your workforce which can lead to confusion and land you in hot water. Business owners, operators and people managers need to ensure they can distinguish between fact and fiction before making any crucial workplace decisions to avoid breaching workplace laws and regulations. Here, I’ve busted five common workplace myths…
Myth 1: You cannot terminate an employee before issuing three written warnings.
Fact: There is no legal requirement to issue three written warnings before termination. This myth often comes from the belief that a dismissal will be unfair if someone hasn’t received prior warnings. This is because, under section 387 of the Fair Work Act 2009, the Fair Work Commission (FWO) will consider several factors in determining if a dismissal was harsh, unjust or unreasonable. One factor considered is whether the employee has previously received a warning of their unsatisfactory performance (if the termination is related to performance concerns) and also whether the person was allowed to respond.
It’s always recommended to undertake a procedurally fair process before proceeding with a termination, which may involve issuing several warnings and/ or performance managing the employee. However, in some cases, if an employee engages in serious misconduct, it may warrant instant termination, even if you haven’t issued warnings previously.
Myth 2: I can only request a medical certificate if an employee takes sick leave around a weekend or a public holiday.
Fact: This is a common misconception; however, employers have a right to request a medical certificate on each occasion that the employee is absent due to illness or injury. Employers can also ask for evidence if an employee is exercising their right to take carer’s leave. The employee does not have to take sick leave around a weekend or public holiday, nor does the employee need to be absent for three or more consecutive days, for you to request such evidence.
Employers may also have internal policies or procedures which confirm this – it of course, does not mean that you must enforce this on each occasion. Whether you ask for the evidence is entirely up to you and may depend on the situation.
Myth 3: It is safe to terminate an employee for any reason within their first six months.
Fact: It is true that an employee must have served the Minimum Employment Period before they can bring an Unfair Dismissal claim. However, employees are protected from adverse action under section 340 of the Fair Work Act 2009 and do not need to have served the Minimum Employment Period before they can make such a claim. In fact, even prospective employees are protected by these provisions. General Protections claims are also uncapped and can therefore be very costly! In addition, an employee may make 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, regular and systematic casual employees do have access to unfair dismissal claims. As such, if their shifts are suddenly cut, they may argue that they have been terminated or even make a claim for 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 dismissed, that is, it will be an unfair dismissal claim.
In addition, if you suddenly cut a casual employee’s shifts after they exercise a workplace right (such as raising a grievance), or you become aware of the employee having a protected attribute (such as a disability), it may be considered adverse action and you could face a General Protections claim.
Myth 5: If a worker has an ABN then they are an independent contractor.
Fact: The fact that someone has an ABN does not automatically 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 totality of the relationship.
Sham contracting is illegal and there are hefty penalties for employers who get it wrong. Sham contracting occurs when an employer misrepresents an employment relationship as an independent contracting relationship. You should always seek assistance to minimise the risk to your business if you engage independent contractors.
If you’re an HR Assured client and you need workplace advice, contact our 24/7 Telephone Advisory Service.
Not an HR Assured client and have an employment issue? The team at HR Assured can support and advise your business on a range of workplace matters. Contact us today to arrange a confidential, no-obligation chat.
Bethany Silverman is a qualified Senior Workplace Relations Consultant at FCB Group and HR Assured. She regularly provides advice to a wide range of businesses in respect of compliance with workplace laws and managing complex matters including disciplinary and performance management processes and terminations.