Real HR Questions Answered by an Employment Law Specialist — Employment Hero

Welcome to Real HR Questions Answered. I'm Kate Jolley and today I've got someone with me who genuinely knows this stuff inside out. This is Simon Obi. Simon is Head of HR Advisory at Employment Hero and he's also our in house employment lawyer. He's worked in employment law for over twenty years, advising businesses of all sizes, lecturing in workplace law and more recently leading the team that provides unlimited on demand HR advice to employers across Australia and The UK. Simon, great to have you here.

Thanks Kate, great to be here.

Okay, so we've collected questions from employees and employers, the kinds of things that people are genuinely searching for, posting on forums or maybe quietly Googling at 11PM when they're not sure what their rights are. So no hypotheticals and no jargon, just straight answers from someone who has spent two decades in this space. Let's get into it. So my boss keeps texting me at 9PM expecting a reply. Since the right to disconnect laws came in, can I just ignore them or could I get in trouble?

Yes, so we have right to disconnect laws in Australia now that have been in place for the last couple of years and what those mean is that employees have a right to ignore unreasonable contact from their employer. So it really depends on what the nature of the contact is. If they're contacting you about some kind of an emergency or it's been explained to you to you that part of your role is is speaking to your employer outside of ours and that's probably going to be okay. But if it's, you know, trivial stuff that could wait until the next day, that's probably not on. So you're right to be concerned about that and I'd advise you to have a sit down with your boss and try and get on the same page about what is reasonable in your particular role.

I've just hit six months in my job and want to go part time two days a week. Do I have the right to ask for that and what happens if my employer says no?

Yes, so the way that that works in Australia is we have, flexible working request protections, but those only kick in for employees with at least twelve months service, and they operate when the employee is asking for a flexible working arrangement because of a special reason such as a caring responsibility or a family responsibility.

You're not at that point yet if you've only got six months service, so the employer doesn't have an obligation to consider that, but that's not to say you can't make a request, you know, thinking employers are always gonna deal with that, reasonably. So, yeah, do do by all means raise it, but if it is refused, there's probably little, legal avenue you've got.

We're a 10 person business and we've just told the team to come back to the office five days a week. One employee has pushed back with a flexible working request. Do we have to accept it?

Well, again, it's going to depend on, the length of service the employee has got. If they've got twelve month service and they're requesting that working from home because of a special reason caring or family reason then you would have an obligation to consider it but there's no obligation to accept it And what the law says is you can only refuse it on reasonable business grounds. There might be, you know, some really, legitimate grounds why someone needs to be in the office, but the key is you'll need to follow the statutory statutory process that involves consulting with the employee, involves only refusing the request if there's a reasonable business ground to do so, setting out what your reason is, and then there's a there's an appeal process too. So make sure you understand the process but absolutely there's no automatic right for the person to refuse to come back to the office.

My employee has called in sick every Friday for the past month. I'm pretty sure they're not actually sick. Can I ask for a medical certificate and what can I do if this keeps happening?

Yeah, you can absolutely ask for a medical certificate, and if the employee can't produce one or there's some other reason, some other evidence which presents itself that they're not genuinely sick, then that's a disciplinary issue. Ultimately, that could lead to dismissal, but the real difficulty here I suppose is if they do have a genuine medical certificate, it is often hard to go behind that. What I would encourage you to do is whenever this employee takes sick leave, have a return to work interview when they're back in the office and see if you can get behind the reason that they're taking sick leave. It might be there's something in the workplace that you can work on together, which means that their attendance is going to improve.

I've been at my job for three years and I've accrued six weeks of annual leave. My manager is now saying I need to take some of it or they'll force me to take leave. Can they actually do that?

Well, that depends on whether or not your employment is covered by a modern award. If it's covered by a modern award, then the award itself will have rules about when you can be forced to take annual leave and most awards say if you've accrued more than eight weeks leave, your employer can require you to take it so long as you're left with a balance of at least four weeks. If you're not covered by an award then it's a question of what's reasonable. An employer can require you to take annual leave when it's reasonable to do so and it's probably going to be reasonable, where you've got excessive leave accrued for them to require you to take it. But I think the best approach get on the front foot, explain to your employer why you're saving up that leave. You can reach an agreement about, you know, you taking it. It's much better to do that by agreement than getting into a situation where you're actually being forced to take it.

Can an employee take sick leave while they're on annual leave if they get unwell? And do we have to convert it?

Yes, they can and yes you do. The Fair Work Act is crystal clear on that. If someone is genuinely sick while they're on annual leave then it converts to sick leave. But of course they have to be genuinely unwell and you're within your rights to ask for the proof that backs up that claim.

I've got a team member who is underperforming, but they're also dealing with some personal stuff. How do I have that conversation without it coming across as cold or triggering a complaint?

Yeah. Mean, that's a really hard one, but and it's hard to advise without knowing the personalities involved, but I would say, you know, I I would try and own that situation. If you're finding it to be a difficult conversation, I would express that to the employee and say, you know, this is a difficult conversation for me to have, and just be open about that. But think about how you can set up that conversation so it's a has the least level of stress for everyone. Know, is it a conversation that's better had outside of the office or you know face to face as opposed to on a video call? Can you have other people in the call like allow them to have a support person there? Try and make it as stress free as possible, but I think, you know, the fact that you're thinking about these things probably means it's gonna go better than you you think.

We've been using the same contractor for two years, five days a week. Someone mentioned that we might actually be treating them as an employee without realizing it. Is that a real risk?

Yeah, that that is a real risk and it's it's a risk that is significant because the penalties, the financial penalties for engaging someone as a contractor when they should be an employee can be pretty, huge. So you're a 100% right to be thinking about this thing. The way that the law operates in this area is, to work out whether someone's a true contractor or an employee. The law will look at various different factors, and then the court or the regulator has to make an overall determination. So the fact that someone's working for you five days a week, and has been doing so for a long term, those are definitely factors that point towards an employment relationship, but that's not the end of the story. You know, things will be important.

Do they have to provide their own equipment that would suggest they're a true contractor? Do they have business insurance and other sort of business expenses that would point to them being a genuine contractor? So would if they have control about the hours they do, the prices they charge, if they can delegate work to other people at their own expense. So, you know, it's not the case that you're definitely in the situation where you've misclassified this person, but you are right to be thinking about this and, you know, do get some professional advice if you need it.

What actually needs to be in an employment contract? We've been using a word template we found online for years and I'm worried it might be missing things.

Yes. So there's no absolute legal requirement to have a written contract, but we would certainly advise everyone to have have one because it provides certainty about the terms and conditions that the employees engaged on. So the key things to include of things like, what is their status? Are they full time, part time, casual?

What are the requirements about hours of work? How are they paid? Is it a salary designed to cover everything or do they get paid different hourly rates at different times? And what's the notice period for termination?

Those those key things to provide certainty are great things, but also think about whether you need clauses in there to protect the business, you know, duties of confidentiality, things which make clear who owns the intellectual property that's created, and any kind of post employment restraints. Do you wanna stop them going to a competitor or stop them contacting your clients when the employment ends? Those sorts of things you need in there too.

We're restructuring and may need to make two roles redundant. What process do we need to follow to make sure we do it properly and don't expose ourselves to claims?

Well, I think the first thing to do is to make sure this is a redundancy situation and not something else. So, make sure you understand the definition of redundancy and it's basically when you don't need that job to be performed by anyone. If you want to bring someone in because someone's not doing their job correctly, that's not a redundancy situation. And if you're going to need to replace this person, that's not a redundancy situation either, but assuming you're satisfied that this is a genuine redundancy then there's basically three things you need to think about.

Number one, you need to consult with the employees, meet with them individually and give them an opportunity to feed into the decision making process. Do they have any suggestions for avoiding the redundancy? What if they suggested going part time, taking a pay cut? You really need to engage in that process and make sure that discussed all those issues with them.

The second thing is redeployment. Are there any vacancies within the business that they could be moved into? That might not be the case, particularly in a small business, but that's something that you need to think about. And then lastly make sure you understand your obligations about redundancy pay.

They might well be entitled to be paid out long service leave.

Certainly annual leave will have to be paid out and they will be entitled to a notice period too. But those are the main things to think about.

How do you calculate redundancy pay? Is there anything extra we should consider offering employees on top of the minimum to keep things amicable?

Yes. So redundancy pay, generally works that businesses with fewer than 15 employees don't have to pay redundancy pay, but for those with 15 or more employees, there's a sliding scale, which, applies based on years of service. So employees with less than twelve months service don't get anything and then and then it goes up based on how long they've been employed. But there are exceptions to that general principle. If you're covered by a modern award that will have its own rules potentially, which might not have the exemption for small businesses and it might have a different redundancy pay scale.

We had two team members complain about each other and now the whole team is taking sides. As a small business owner, where do I even start with this?

Well, yeah, that's a really tricky one. And again, it's hard to give general advice without knowing the nature of the complaint and the personalities involved, but I would have thought you want to speak to the two individuals individually, and assuming this is a situation where there's some wrongdoing on both sides, but this isn't, you know, like a case where someone's going to get dismissed. I think speak to them individually, make sure that they feel that their points are being heard, and work with them to find some kind of common ground. When you've got it into a situation where you think you can bring them together, let them, you know, air their grievances in that setting but but guide the conversation.

Make sure that they're both having equal time to speak and and that, you know, that the conversation goes as smoothly as it can be. I think to the wider workplace, if you're a small business and get everyone in the room together, do that. Acknowledge the fact that there are issues going in. You don't need to go into specifics, but I think, you know, remind people that we don't all have to be best of friends at work, but we all need to work productively and we we all need to respect each other and and be mindful of of, you know, not doing anything which is inappropriate.

But yeah, these are tough things to deal with. You know, there are, you know, professional mediators who can come in that will have a cost, but if this is really damaging your workplace culture, maybe that's something to think about.

What questions can't I ask in a job interview? I want to hire the right person, but I keep hearing different things about what's actually off limits in Australia.

Well, there's no real law which says you can't ask x or you can't ask y.

But really, there are issues when you ask questions which which could potentially be discriminatory. So questions about someone's age or or race, religion, whether they're married, whether they plan to have children.

The problem is if you ask those questions and that person doesn't get the job, it's really easy for them to allege that it was because they made this disclosure. So, just avoid asking anything which is protected under those discriminatory factors unless of course there's a genuine reason to ask it. If you're recruiting for someone to work in a bar and they need to be a certain age to serve alcohol of course you can ask about their age but just have a real think about those questions before you ask them.

We hired someone who seemed great in the interview but it's become clear in the first few weeks that they're not the right fit. What are our options and do we need to follow a formal process this early?

So employees don't have a right to claim unfair dismissal, in a business with less than 15 employees unless they have twelve months service or if you've got 15 or more employees it's it's six months service. So an employee in their first few weeks of employment isn't going to be able to claim unfair dismissal, if you let them go. So on that basis, you know, there's no strict reason to follow a formal procedure like a performance management process or issuing written warnings, all that kind of stuff. But I would still say it's best practice to follow some kind of procedure because otherwise if you don't, you're leaving yourself open to the allegation that they were dismissed due to a discriminatory reason, you know, age, race, sex, religion, something like that. And those claims are available from day one of employment.

You know, even if it's a kind of short process where you're just meeting with them, explaining the reasons why you're letting them go, I would do that rather than just kind of pulling the plug out of the blue. Your reputation in the marketplace is going to be better if you if you do follow some kind of process.

Simon, thank you. Genuinely useful sparked one of your own or if you're an employer who's realized that you've got some of this to work through, there is real help available. Head to employmenthero.com to find out more about Employment Hero's HR advisory service and talk to our employment specialists today.