employers
Guidance and Support
Legal principal and practice underpins all aspects of employment, it starts with the job advertisement, it continues throughout employment, and it applies on termination of employment - whatever the reason.
The knowledge of human resources does involve knowledge of legalities of employment, however, not at the practical level. At a practical level human resources practitioners must know how a job advertisement impacts on performance management and dismissal. Legal principal and practice becomes relevant the minute you begin preparing a job advertisement, because the job advertisement forms a component of the contract of employment. Every action the employer takes from that moment on will be impacted by legal errors and lack of legal insight. Throughout the employment relationship, the legal principal and practice of those legal principals must continue. I have seen legal errors and lack of legal insight cause very significant problems down the track.
For example four months ago, a casual employee came to me for advice after the CEO had written and issued a letter of termination of employment to that casual employee. That casual employee had not been engaged to work for over two months, and technically, at law, that employee was not employed. That employee is now successfully seeking action through the Fair Work Ombudsman as a permanent part time employee. The CEO, as the employer, is now facing the lawful commitment to pay astronomical financial compensation for permanent entitlements including paid annual leave, paid sick leave, and penalties for unfair dismissal. The Fair Work Ombudsman will not only review the historical records for this employee, all casual employee records will be reviewed, and repayments will be required to be provided to all casual employees placed in the same situation.
As another example, an employee came to me for advice after being terminated for aggressive conduct toward other employees. What the employer failed to recognise was that this employee had been experiencing harassment and discrimination, directly from the Administration Manager. The employee met with the Administration Manager, and only met with the Administration Manager prior to terminating the employee. That employee was not involved in the issue of performance management at all, prior to termination. That Administration Manager had disregarded all policy and procedure pertaining to victimisation and discrimination. After my intervention, that employee was successful in having the termination withdrawn on the basis that the employer had breached all policy and procedure as mentioned. Appropriate performance management was implemented for all employees that were involved, and the situation improved remarkably..
A final example, when working as a Human Resources Manager, I informed the General Manager that employees engaged under the relevant Workplace Enterprise Bargaining Agreement (EBA) had not been paid the correct rate of pay outlined in that EBA. The General Manager actually stated to me 'we have no employees engaged under that EBA. I read through the EBA with him, I identified the roles of employees covered by the EBA, and I then demonstrated the rate of pay was inadequate. I was absolutely amazed that the General Manager did not know this, and I was further astounded that not one employee covered by that EBA had raised this concern. Following my investigation, I later learned that the majority of employees engaged did not actually know that an EBA existed, and that their conditions of employment were covered by that EBA. At a later stage, that General Manager had flown two employees from another country into Australia on holiday visas and had placed them in the field to work.
Unfortunately, the practice and principal of human resources, even for those professionally qualified, is insufficient, and the foresight required to comprehend legal implications associated with the lack of practical application of associated legal practices and principals inhibits an employee's entitlement to many of their lawful rights. This leads to successful applications to the Fair Work Commission for unfair dismissal and, or, the Human Rights Commission for discrimination.
Contact me today to discuss options pertaining to gaining a better insight into lawful employment practice.