07/08/2020
Redundancy and unfair dismissal
There has been a dramatic rise in workplace redundancies in recent times, thanks in large part to the uncertainty caused by the COVID-19 pandemic. A redundancy that is not genuine however, may result in a number of potential actions by an employee, including for unfair dismissal.
For a redundancy to be genuine there are important processes that must be followed. Both employees and employers should keep these in mind when navigating the difficult path of redundancy.
What is a genuine redundancy?
A redundancy is considered genuine if the employer no longer needs the person’s job to be performed by anyone and where the employer has met the obligations to consult imposed by the relevant award or enterprise agreement.
An employer may no longer need the job to be performed by anyone because of changes to business requirements such as:
- a decrease in staffing numbers due to a downturn in business
- new technologies that make the position obsolete
- a restructure of the business.
What is not a genuine redundancy?
There will not be a genuine redundancy in cases where:
- The employer still requires the person’s job to be performed by someone. This does not mean however, that the duties can’t be absorbed by another staff member or the Director of the business.
- The employee could have been redeployed within the organisation and was not offered the opportunity.
- The employer fails to follow the obligations set out in the relevant enterprise agreement or award, such as the obligation to consult with the employee.
If the redundancy is not genuine, the employee may have a claim for unfair dismissal.
What is the obligation to consult?
The obligation to consult is usually set out in the relevant enterprise agreement or award and means just that – the employer must consult with an employee before a redundancy. Usually a consultation includes:
- more than one meeting between the employer and employee
- an opportunity for the employee to make suggestions
- time for the employer to properly consider the suggestions before reaching a decision, and
- written notice of the decision.
Our Employment Law team can offer advice in you are considering a redundancy or if you have been made redundant and are not sure if it is genuine. Please contact us to speak with a member of our team.
*The legal information in this article is of a general nature and not intended to be legal advice to rely upon.
13/05/2020
When can an employee be stood down?
| In our latest blog, we answer a topical question during the COVID-19 pandemic – when can an employee be stood down?
Under the Fair Work Act, an employer can stand down an employee without pay in certain circumstances if the employee cannot be otherwise usefully employed. This includes when it is for a reason the employer is not responsible for. Amendments made in early April enable employers who qualify for the JobKeeper scheme to temporarily stand down an employee or reduce their hours in certain circumstances if they meet the requirements. What type of circumstances?If a business has been forced to close due to an enforceable government restriction (such as the closing of businesses including gyms, some beauty services and cinemas) during the COVID-19 pandemic and the employees can’t work from elsewhere, this may be a reason where the employer could stand down staff. Usefully employed?The facts of each case are taken into consideration when determining whether the employee could have been otherwise usefully employed but ultimately, it means that there is no work for the employee to do in any location. The employee is still employed by the business during the stand down period and will accrue their usual entitlements during this time. It’s important to remember that employment contracts, awards and other agreements can impose additional or other requirements for standing down staff. Getting advice from an experienced legal professional can ensure you are aware of what rights and obligations you have as an employer or as an employee during COVID-19 and beyond. If you’d like some advice, please contact us. *The legal information in this article is of a general nature only and not intended to be legal advice to rely upon |
09/04/2019
Let’s talk about quad bike safety
QUAD bike safety is an important topic.
This is particularly so in our community where there are farms and rural workplaces that often use quad bikes.
The reality is that quad bikes are a major risk area for serious injury or death.
Safe Work Australia compiles the data relating to quad bike fatalities.
In the eight years from 2011 to 2018, there were 126 quad bike fatalities in Australia (40 in Queensland). Sixty-two were workers, 76 were the result of a rollover and 77 occurred on a farm/property.
Whether you are the owner or operator of a rural workplace, farm or property, you owe a duty of care to the users of quad bikes on your property.
The user may be an employee or non-employee.
Whatever the case, adequate steps must be taken to address the many safety risks that arise from operating a quad bike. For workplaces and businesses, you will also have duties and obligations under the Work Health and Safety Act 2011.
Safe Work Australia publishes information specifically on this risk area, which is publicly available at www.safeworkaustralia.gov.au, for a guide for managing the risks of machinery in rural workplaces and quad bikes in rural workplaces.
They also provide guidance on ways to prevent quad bike injuries and death.
Quad bike safety is currently being reviewed nationally and there may be regulatory changes in this area soon.
Until next week – Keep it Legal!
Katie Caldow
kcaldow@walkerpender.com.au
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.
03/04/2019
Employer and individual liability for workplace safety
LAST week I spoke about an employer’s duty to manage risks to the mental health of its workers.
Of course, an employer must also manage risks to their workers’ physical safety.
If they fail to comply with their obligations, the employer is at risk of being prosecuted by Workplace Health and Safety (“WHS”). This may include the individual with responsibility for the employer entity.
If you look at the statistics published by Safe Work Australia in 2016-2017 in relation to WHS prosecutions and outcome, there appears to be trend of increased financial penalty and individual liability.
This is evidenced by the fact that, despite a 24 per cent decrease in the number of legal proceedings resulting in a conviction, order or agreement, there has been an 8 per cent increase in the value of fines awarded by Australian Courts. In addition to the above, over the past six months there have been two instances of Australian Courts sentencing an individual to a term of imprisonment following a fatality in their workplace.
The first was a 72-year-old self-employed scrap metal business owner in Victoria who was sentenced to six months in prison. The second, a director of a Brisbane roofing company who was sentenced to one year in prison.
Employers who think they won’t be prosecuted or are sheltered from personal liability should think again. Is safety a primary focus in your business? It should be.
Until next week – Keep it Legal!
Katie Caldow
kcaldow@walkerpender.com.au
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.
27/03/2019
Mental health in the workplace
AN EMPLOYER has a duty to manage risks to the mental health of its workers. It arises under both common law and Queensland legislation, primarily the Work Health and Safety Act 2011.
If you are an employer you need to ensure your workplace is mentally healthy and that you are adequately managing risks within your organisation to the mental health of your workers.
According to Workplace Health and Safety Queensland, “one in five adult Australians experience a mental health condition in any given year and workers who feel their workplace is mentally unhealthy are three times more likely to take time off work than those in mentally healthy workplaces”.
So the benefits of ensuring a mentally healthy workplace are not just for the benefit of workers; there is a flow-on commercial benefit in reducing absenteeism.
Employers play a big part in helping to break down the stigma that is still largely associated with mental health.
They also need to be complying with their legal obligations in this area.
An adequate management system should include proactive measures to manage risks to mental health arising from the employment (for example, fatigue, bullying, work-related stress etc.) as well as support and promotion of positive wellbeing and health practices and the provision of adequate support mechanisms.
There is no time like the present to consider the current risks to mental health within your organisation and whether your management systems are adequate.
Until next week – Keep it Legal!
Katie Caldow
kcaldow@walkerpender.com.au
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.
20/03/2019
Household Worker insurance?
AS BUSY individuals, we sometimes pay cleaners, babysitters, gardeners and others to help us at home. There is a common misconception these people are always contractors, as opposed to employees. But that may not be the case.
You have a duty of care to entrants on your property to take reasonable steps to avoid exposing them to risk of injury. If an entrant is injured on your property, then, assuming you have public liability… insurance, the policy will usually respond to any injury claim. However, public liability insurance does not cover employees injured during the course of employment, which would leave you personally liable (the amount could be significant).
You should consider if your workers are properly characterised as contractors or employees and what, if any, compulsory insurance obligations you might have.
The Australian Taxation Office provides a tool, the “Employee/contractor decision tool”, which can assist in characterising a worker as an “employee” or “contractor”. If employees, consider whether they meet the definition of household worker under the Workers’ Compensation and Rehabilitation Regulation 2014, which is “a person employed solely in and about, or in connection with, a private dwelling house or the grounds of a dwelling house”.
If you employ a household worker, you must have workers’ compensation insurance. WorkCover Queensland offers a specific Household Worker insurance policy with a $50 premium for two years.
Consider your individual circumstances and seek advice if needed.
Until next week – Keep it Legal!
Katie Caldow
kcaldow@walkerpender.com.au
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.
09/01/2018
Employment Law
Mauris fermentum dictum magna. Sed laoreet aliquam leo. Ut tellus dolor, elementum vel, cursus eleifend, elit.
Related News
When can an employee be stood down?
In our latest blog, we answer a topical question during the COVID-19 pandemic – when can an employee be stood down? Under the Fair Work […]
Read MoreLet’s talk about quad bike safety
QUAD bike safety is an important topic. This is particularly so in our community where there are farms and rural workplaces that often use quad […]
Read MoreEmployer and individual liability for workplace safety
LAST week I spoke about an employer’s duty to manage risks to the mental health of its workers. Of course, an employer must also manage […]
Read More