Employment Contracts & Disputes

Employment Contracts & Disputes

Employment Law issues during and after Coronavirus (COVID-19)

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(Last updated: 28.3.20)
  • Use of Leave Entitlements and Coronavirus 
  • Employer Obligations and Coronavirus
  • Standing Down Employees and Coronavirus 
  • Legal effect of Self-Isolation and Coronavirus on Employers and Employees
  • Recovery of unpaid wages during and after the Coronavirus
  • Alternative Employment Options to retain key staff, the law and Coronavirus 

Annual or Personal Leave during Self-isolation and Beyond

In general, an employer cannot force an employee to take annual leave unless:

  1. the employee has excessive annual leave; or
  2. the employer is shutting down for a certain period (e.g. Christmas period).

For both employees and employers, this will depend on the relevant award and agreement the employee falls under.

However, in most cases, if you are in self-isolation you may not be forced to take annual leave and will be allowed to take personal or sick leave. An employee and employer may enter into an agreement for payments during the self-isolation period by the employee working from home (via remote access) or by the employer offering special leave for the period of self-isolation (which some companies are employing for those who have returned from overseas).

If the employer does not offer the employee paid leave or the ability to work from home, it might mean that sick employees, or those employees who may have been exposed to the coronavirus, attend work for fear of not receiving their wage (this poses the greatest risk to those employees who show no symptoms but who may have been exposed to the virus and have not disclosed this risk).

Employer Obligations

Employers have a duty to, so far as is reasonably practicable, provide a working environment for their employees that is safe and without risks to health. This includes identifying and controlling risks to health or safety associated with potential exposure to COVID-19.

Each employer should have appropriate measures in place to dissuade an employee from coming in sick or from not self-isolating if potentially exposed to a risk of catching the coronavirus.  

Employers have duties under the Occupational Health and Safety Act 2004 (OHS Act), which include that they must, so far as is reasonably practicable:

  • provide and maintain a working environment that is safe and without risks to the health of employees and independent contractors
  • provide such information, instruction, training or supervision to employees and independent contractors as is necessary to enable those persons to perform their work in a way that is safe and without risks to health
  • monitor the health of employees of the employer
  • monitor conditions at any workplace under the employer’s management and control
  • provide information concerning health and safety to employees, including (where appropriate) in languages other than English
  • ensure that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer
  • consult with employees and HSRs, if any, on matters related to health or safety that directly affect, or are likely to directly affect them

If an employee has self-reported that he or she may have been exposed to the virus, the employer may ask the employee to seek medical clearance, or work from home during the risk period.

Other control measures may include:

  • implementing social distancing initiatives in accordance with recommendations made by the Victorian Chief Health Officer
  • providing adequate facilities or products (such as hand sanitiser, where available) to allow employees to maintain good hygiene practices
  • providing appropriate personal protective equipment, including information or training on why the equipment is required and how to safely use it
  • where possible, avoiding shared use of phones, desks, offices, or other work tools and equipment
  • developing an infection control policy
  • reconsidering any work-related travel plans or events (such as workshops or meetings) that involve large groups of people
  • where possible avoiding face to face meetings by using other methods of communication, such as phone or videoconferences
  • ensuring employees understand when to stay away from the workplace and advising them of the requirement to self-isolate at home for 14 days if:
    • returning from overseas travel
    • they have been in contact with confirmed cases of coronavirus

The appropriateness of any action to be taken during the coronavirus outbreak must always be assessed in the context of any specific awards or enterprise agreements that might apply to the employee.

Our lawyers are here to assist you in implementing the best course of action to ensure you are protected against the legal fallout of the coronavirus outbreak and in assisting you with any enquiries relating to annual leave or your work entitlements.

Standing Down Employees

Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

Employees will continue to accrue leave as normal during the stand down period.

Legal advice should always be obtained before any employee is stood down without pay as if it is done unlawfully, an employee will likely be able to recover unpaid wages.

Employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has Coronavirus.

Enterprise agreements and employment contracts should be reviewed prior to any steps being taken to stand down an employee.

Employers: If you are looking to stand down an employee, our Legal Service Professionals can assist you to ensure that the process is done lawfully, as well as to discuss with you alternative options that may be of some assistance.

Employees: If you have been stood down by your employer, our Legal Service Professionals can assist you in ensuring that the process has been done lawfully and to determine whether you should be entitled to unpaid wages.

Different Alternatives to the Coronavirus Problem

Other options that an employer may consider instead of a stand down include:

  • entering into an agreement to take paid (or unpaid) leave for a period;
  • negotiating with employees to change regular rosters or hours of work; or
  • terminating the employment of the employees, in which case the employer may have to provide redundancy pay.

From a practical standpoint, as the Coronavirus outbreak reduces and business normalises, it may be of more benefit to businesses to offer reduced hours to their employees rather than terminating their employment.     

Employers need to consult employees in any change of hours of work under their award or enterprise agreement, which agreements may set out further rules that must be adhered to.

Reducing a permanent employee’s ordinary hours usually requires the employee’s agreement.

If you require assistance with transitioning your employees to reduced hours or are affected by reduced hours imposed by your employer, our Lawyers are able to assist, including in the preparation of any ‘individual flexibility arrangement’ that the parties may seek. Please call 9500 1722 or email ckl@ckllaw.com.au


Negotiating employment contracts for Employers or Employees

Employment law is a complex area of law to understand and is now governed by the Fair Work Act 2009 administered by Fair Work Australia and overseen by the Fair Work Ombudsman. The number and complexity of award structures that exist in different industries add to this complexity as does the ability to seek civil damages.

If you seek sound advice and have a well drafted Employment contract from the start, you can establish a fairer and more stable framework upon which to commence an employment relationship.

We can negotiate and draw up individual Employment Contracts or negotiated workplace agreements, called Enterprise Agreements, to ensure that conditions of employment comply with the National Employment Standards (NES) and all parties are aware of their rights and responsibilities, and the consequences of breaking the contract, from the outset.

Top issues in employment disputes

  1. Redundancy
  2. Performance review criteria and the assessment of performance
  3. Transfer of employment (including request to transfer and forced transfer)
  4. Leave entitlements (including maternity leave)
  5. Demotion (including demotion after returning from maternity leave or demotion after a company restructure)
  6. Sexual Harassment
  7. Dismissal and the necessary grounds for summary dismissal
  8. Flexible workplace arrangements, changes in hours and shifts
  9. Non-compliance with the National Employment Standards
  10. Salary
  11. Working conditions
  12. Misinterpretation of conditions of employment due to implied conditions

Breaches of Contract

For Employers

If you are an Employer and you discover that your Employee has breached the terms of a Contract with you, you have certain rights to enforce the terms of the contract.

If you would like to talk to an experienced Employment Lawyer about either dismissing an Employee for breach of contract and/or taking action to recover damages, for breach of contract, we can advise you of the likelihood of success and the potential outcomes.

For Employees

If you are an Employee and you are aware that you are breaching the terms of your Contract and/or have been caught breaching the terms, you have certain possible courses of action that can be taken to minimise damages payable if the Employer seeks to enforce the terms of the contract.

If you would like to talk to an experienced Employment Lawyer about either negotiating the conditions of your employment or seeking to minimise any damages if the Employer wishes to enforce the contract, we are able to advise you of your likelihood of success and the potential outcomes.

 Employment Disputes

There may be instances when Employees feel that they have been discriminated against, verbally or sexually harassed or unfairly dismissed. Please see our section on Unfair Dismissal and Sexual Harassment for more information.

After an employment contract is entered into, if both parties to the contract are in agreement, it may be varied, amended, renewed or extended.

We have successfully acted for Employers and Employees alike in all courts for more than 35 years. Over that time we have seen the same mistakes being made by both parties.


FAQ’s

Q.  What can I do if my Employee is not performing in their job?

As an employer you have a number of things that you can do to rectify the situation.

Conduct a performance review and notify the employee that they are under performing according to the job specifications detailed in their contract of employment.

Give the employee a specified time period in which to improve their performance and guidelines of what you expect (key performance indicators “KPI’s”).

Conduct a further performance review at the specified time.  If the employee is still not meeting their KPI’s, you may be able to dismiss them on the grounds of non- performance.

If you do not want to keep the Employee on as you have assessed that they are not capable of undertaking the job to your requirements, you will need to go through the process of warnings before terminating their contract of employment.

A contract of employment can only be terminated if the employer has undertaken a number of specific actions.  If you would like to explore what options you have to terminate the employee’s contract, please contact our office to speak to our Employment Lawyers.

Q.  Can I get rid of an employee who has behaved inappropriately? Another employee is claiming that they are the victim of sexual harassment. As the Employer, will I be held liable for my employee’s behaviour?

Claims of sexual harassment are always very complicated as there are two sides to every story. It is important to take the claims seriously as there can be consequences for both the Employee and Employer if the victim makes a claim.

You cannot just fire the alleged offender. Due process must be done in order to protect all parties from litigation and remedy the situation.

The most important thing to do is to gather all the facts quickly and ask us at Cyngler Kaye Levy Lawyers for legal assistance and advice before undertaking any action.

Please do not hesitate to contact us on +61 3 9500 1722 for a quick response to what could be a highly inflammatory situation.

Q.  Can I sack an employee without notice? What are some reasons for summarily dismissal?

That depends on what they are doing.

Serious reasons to summarily dismiss an employee are:    

  1. Substantial stealing from the business
  2. Serious sexual harassment
  3. Physical damage to the business
  4. Physical injury to or gross abusive behaviour to employees or customers / clients / patients of the business
  5. Intellectual property damage eg. posting on websites false and damaging statements about the business
  6. Selling or releasing in any way confidential information of the business
  7. Sabotaging hardware or software of the business

It is very important to understand that minor infringements of the above list will not constitute grounds to summarily dismiss an employee, and if done so, the employee may make a counterclaim on you and your business for unfair dismissal.

If you would like to discuss if your situation constitutes immediate summary dismissal, please do not hesitate to have a confidential conference with our experienced employment lawyers to see if you have valid grounds. Call us on +61 3 9500 1722.

Q.  I want to employ a friend. Do I really need an employment agreement?

Yes you do need an employment agreement. Especially when it is a friend as any problems become extremely personal and have a tendency to accelerate very rapidly into a full blown fight.

If something goes wrong, even if it was not any fault of yours, you will need the protection of an employment agreement as it sets out the conditions of employment and details dispute resolution pathways.

We can assist you by drawing up a standard employment contract that fits the needs of your business and that you can use each time you employ a new staff member.

If you would like to get the right advice on an employment law issue, please do not hesitate to contact our experienced Employment Lawyers on +61 3 9500 1722, request a cost estimate or email an enquiry.

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