Harrison Human Resources

Worker’s out-of-town sex injury compensable: Judge

claire — Thu, 03 May 2012 09:49:15 +0000

The injuries sustained by a worker while having sex on a work trip were found to be compensable by the Federal Court, which determined that the employer was liable, even though it had not ‘expressly induced or encouraged’ the activity that led to the accident.

In November 2007, a public servant was sent on an overnight trip to a country town in New South Wales to lend her human resources expertise to a regional branch of the Commonwealth Government.

During this time, the worker arranged to catch up with a male friend, whom she’d met in town three or four weeks beforehand.

Following a dinner date, they retired to a motel room, booked by the worker’s employer, and engaged in sex.

While doing so, a glass light fitting located above the bed was pulled from its mount and fell on the worker, causing injuries to her nose and mouth, as well as sequela psychological condition.

When her compensation claim was rejected, the worker appealed to the Administrative Appeals Tribunal.

Conduct not expressly induced: Tribunal

During legal proceedings, the worker argued that her injuries were compensable because they were sustained during an interval or interlude within an overall period of work, which she spent at a particular location (the motel) at the ‘express or implied instigation and organisation’ of her employer.

Although the Tribunal did not suggest that the injuries were either intentionally self-inflicted or caused by gross misconduct, it determined that the activity that led to her injuries was not sufficiently connected with her employment to constitute an activity undertaken in the course of her employment.

‘Having sex the same as playing cards’: FCA

The worker then appealed to the Federal Court of Australia, where Justice Nicholas found that the Tribunal had erred in holding that for the worker to succeed, she had needed to show that the particular activity which led to her injury was one that had been expressly or impliedly induced or encouraged by her employer.

‘If the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation even though it could not be said that her employer induced or encouraged her to engage in such an activity,’ Justice Nicholas said.

‘In the absence of any misconduct, or an intentionally self-inflicted injury, the fact that the applicant was engaged in sexual activity rather than some other lawful recreational activity while in her motel room does not lead to any different result.’

Setting aside the Tribunal’s orders, Justice Nicholas declared that the injuries sustained by the worker were suffered by her in the course of employment, and therefore compensable.

10 Tips for Small Business to comply with new WHS legislation

claire — Thu, 03 May 2012 09:32:53 +0000

Occupational Health and Safety (OHS) laws are undergoing their biggest overhaul in a generation with the introduction of nationally harmonised legislation in 2012. Here’s what you need to do to get your business ready.

The new model Work Health and Safety Acts (WHS) came into effect on 1 January 2012 (with the exception of Victoria and Western Australia who are likely to defer implementation until later this year.) It is crucial that organisations recognise the changes that will be made and start reviewing all practices and documentation such as contracts, policies and procedures now.

Essentially, what this all means is that each of the current state and territory OHS laws will be replaced by national laws based on a model WHS Act. Previously, there were eight jurisdictions with different sets of laws, so the most obvious advantage is consistency of laws across Australia and a more streamlined approach to the way OHS is regulated here.

The changes are reflected through:

the WHS Act, which sets out legal obligations
WHS regulations, which provide detail on how certain sections of the Act should be implemented
Codes of Practice, which are practical guides for businesses and workers to achieve the necessary standard of work health and safety.

Codes of Practice provide detailed information on particular areas of the Act or regulations, and may outline activities, actions, technical requirements, responsibilities and responses to events or conditions within a workplace to assist organisations ensure they are upholding their responsibilities and obligations under the Act.

Basic facts about the new model WHS:

there are new roles and responsibilities for employers
there are new wording and definition changes under the new WHS
there are critical changes under the new Act in regards to consultation
there are changes to union rights of entry
there is protection from discrimination, coercion and misrepresentation under the new WHS which is new to some states
there will be new penalties for breaches of the WHS
new roles and responsibilities will be created for health and safety representatives (HSRs)under the new WHS.

What is changing for workers?

The traditional relationship between the employer and employee under the current OHS Act is broadened to cover the range of differing employment relationships.

The new WHS Act applies the overriding principle that workers and other persons should, so far as is reasonably practical, be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work.

New wording and definition changes under the new WHS

The term employer will be replaced with the acronym PCBU. A PCBU is a person conducting a business or undertaking alone or with others. A PCBU can be a corporation, an association, a partnership or sole trader.

The duty of a PCBU is to take all reasonably practicable steps to ensure the health and safety of workers whose activities in carrying out work are influenced or directed by the PCBU.

The concept of reasonable practicality, in particular with risk mitigation is of upmost importance. The model regulations ensure PCBUs eliminate, as far as is practicable, all risk to the safety of workers. The logic being, there is no better way to ensure the health and safety of workers than to eliminate risk entirely. This is of course not always possible, but elimination should always be considered as the first course of action, and then ruled out if not practicable.

Worker replaces the term employee. This is anyone who carries out work for a PCBU and includes an employee, a contractor or sub contractor, an employee of a contractor or sub contractor, an employee of a labour hire company, apprentice or trainee, student on work experience, outworker and volunteer.

A worker has the duty to take care for his/her own safety, the safety of others, comply with any reasonable instruction from the PCBU, so far as reasonably able and cooperate with all reasonable policies and procedures of the PCBU.

An officer is a person who makes decisions or participates in making decisions that affect the whole or a substantial part of a business. A person responsible only for implementing, not making decisions will not be an officer.

Directors and officers were previously liable for OHS offences committed by the corporation. Under the new legislation, this provision has been replaced with a positive duty on officers to exercise due diligence to ensure that the PCBU complies with its duties under the model legislation.

For anyone that falls under this category of officer the key requirements are that they must:

acquire and keep up-to-date knowledge on OHS matters within the business undertaking
gain an understanding of the nature of the business and the risks and hazards that occur within that business unit
ensure appropriate resources and processes are available to people working in this business unit to eliminate or minimise risk
ensure the business unit has appropriate processes in place for receiving and reviewing information about incidents, hazards and risks that apply in a timely way
ensure that the business unit has all necessary resources to comply with their duties under the new Act
put in place a mechanism to verify that the resources and processes put in place are working.

10 tips for small business owners to comply

1. Identify changes between the existing OHS Act and the model WHS Act to understand what needs to change, and what can stay the same in order to achieve compliance.

2. Review organisational structure to determine where responsibility for WHS lies.

3. Review policies, procedures and consultation processes to ensure that not only are they compliant, but that terminology used is consistent with the new Act.

4. Identify the stakeholders within your organisation. For example, workers, which again must go back to the expanded definition, officers and those responsible for the implementation of safety initiatives.

5. Review contracts with relevant third parties such as suppliers of plant equipment or labour to address and to clarify respective obligations.

6. Review your consultation arrangements to determine:

- If you are consulting with all required parties, again coming back to the expanded definition of workers

- And to establish whether you need to elect health and safety representatives (HSRs) for identified workgroups, or if existing alternative arrangements are practicable.

7. Review your procedures to ensure that you protect against engaging in discriminatory conduct against a worker who raises a health and safety issue.

8. Review the new regulations and codes of practice to determine what changes will need to be made to your safety systems.

9. Check for transitional arrangements in your state or territory. Transition will cover such things training requirements for health and safety representatives.

10. If you are unsure of anything seek legal advice to avoid non-compliance.

Employee to pay $188,500 for post-employment breach

claire — Thu, 03 May 2012 00:42:23 +0000

A Vic man will have to pay almost $188,500 to his former employer, after he breached a post-employment clause in his contract that prohibited him from doing business with former clients.

The clause prevented him from providing specified accounting services for three years after his employment finished to any of the accounting firm’s clients to whom he had provided similar services during his final three years of employment. The clause further provided that, if it was breached, the employee had to repay the equivalent of 75% of the fees payable by each client who he approached in the client’s final year with his former employer.

The employee gained employment with a rival firm. A major client of his former firm sought quotes for services from both accounting firms, and when the quote from the new firm was considerably lower, it transferred its business to the employee’s new firm.

The former employer initially took action against the employee in the Victorian County Court, but the court found the terms of the restraint clause to be unreasonable (both its restrictions and the amount payable). However, the Supreme Court found the clause to be reasonable, and overturned that decision on appeal.

The Supreme Court described the restraint clause as ‘relatively narrow’ and said that it did not prevent the employee from practising as an accountant or from ever providing services to any of the former employer’s clients. It only restrained him from having a continuing relationship with the clients he had actually worked for while with the former employer. This restraint included providing different accounting services to the same clients, or providing services in a different employment capacity (see below).

Lack of qualifications and status didn’t matter

The employee had argued that his relatively junior work status should prevent the restraint from having effect. He commenced with the former employer as a trainee, and although later promoted to become a supervising accountant, he had no formal accounting qualifications. He later qualified as an accountant while with his new employer, which, he argued, meant that he was providing different services to the clients.

The employee argued that the clause should be restricted to covering the services of ‘recurring accountancy, tax consulting and special services such as to establish a relationship of client and accountant of a continuing and recurring kind’. In that case, ‘unqualified’ employees such as himself could not be covered by such a clause and it should only apply to professional accountants or tax agents. Otherwise, ‘every employee down to receptionists’ would be ‘providing accounting services’ to clients.

The Court disagreed, stating that the core issue was ‘establishing a client connection’, and no receptionist would be regarded as doing that. The purpose of the restraint clause was to protect the former employer’s goodwill built up by the business relationships. A three-year restraint period was considered reasonable. The Court ordered the man to pay his former employer $188,496 for damages and legal costs.

TIP: Ensure you have a comprehensive risk-mitigating employment contract in place before the new employee commences work with you to cover post employment restraints and other important considerations such as confidentiality and intellectual property.

Casual employment to permanent — a right?

claire — Thu, 03 May 2012 00:37:56 +0000

The rules around an employee’s entitlement to be made a permanent employee after working a period of casual employment should be checked in the relevant award.

Q Our company employs a considerable number of casual employees who are employed under the Manufacturing and Associated Industries Award 2010. One of these employees has approached their supervisor regarding the possibility of converting from casual employment to permanent part-time employment. The employee’s request has been triggered mainly because of the difficulty she has had in obtaining finance due to her casual employment. Because of the irregular nature of the work in that particular area of our business, the company would prefer that the employee remains a casual employee.
Does the employee have a right to elect to convert from casual employment to part-time employment?

A The source of an entitlement to convert from casual employment to part-time (or full-time) employment would be the applicable modern award or enterprise agreement. The modern award in this instance (the Manufacturing Award) contains a clause (cl 14.4) which states that ‘a casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of six months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process’. (An ‘irregular casual’ is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.)

The Award requires the employer must give notice in writing of this provision to the casual employee within four weeks after the six-month period.

Refusal . . .

The employer may refuse the election to convert but not unreasonably so. In considering a request, the employer may have regard to any of the following:

the size and needs of the workplace or enterprise
the nature of the work the employee has been doing
the qualifications, skills and training of the employee
the trading patterns of the workplace or enterprise (including cyclical and seasonal trading demand factors)
the employee’s personal circumstances, including any family responsibilities.

Note: this provision is not ‘standard’ in all modern awards, although the employer should consider any such request on its merits (using the above criteria), regardless of whether the applicable modern award or enterprise agreement provides for conversion from casual employment to full-time or part-time employment.

Source: WorkplaceInfo

Australia’s Top Employers

claire — Thu, 12 Apr 2012 13:12:59 +0000

Move over, Google – constructions product provider Hilti is the top employer in the country based on human resources consulting firm Aon Hewitt’s new Best Employers in Australia and New Zealand report, which surveyed over 124,000 employees in more than 200 companies.

Best Employers outperform other organisations in both productivity and financial performance. Research concludes that organisations with high engagement are 78% more productive and 40% more profitable than those with lower engagement.

Outsourcing sales and management group Aegis, beverages company Frucor and multi-millionaire Andrew Abercrombie’s point-of-sale finance giant FlexiGroup have also been named as some of the country’s best places to work.

The InterContinental hotels group and Johnson & Johnson Medical also made the top list.

Aon Hewitt chief executive of talent and rewards, Tim Powell, says this year’s survey showed employees now expect their companies to provide more for them – and many are delivering.

“For the first time in a decade, 2010 saw more organisations with declining employee engagement than those with improving engagement,” he says.

“The drivers that used to attract and retain talent – relationships with co-workers, relationships with customers and work/life balance – have now become standard expectations within the majority of organisations.”

Such benefits have been used by employers over the past year or so to keep workers on staff during the upcoming skills shortage. As unemployment drops, workers have become more confident in seeking new opportunities, and business owners are more willing to pay more to get talented staff.

But the new survey found the top companies on the list contained some common features – senior leaders are judged as more effective, they prioritise their teams to ensure problems are solved effectively and are much clearer about how pay and rewards are structured.

The study showed that fewer than half of senior leaders are viewed as effective, but 72% of employees in the Best Employers list see “strong evidence of effective leadership”. This includes proper time management, and the ability to determine which employees are best suited to which roles.

The study also found that managers within the best employers list don’t necessarily have more time available or even more qualifications, but they are able to motivate their teams.

The survey also found 67% of employees in the Best Employers list believe their company delivers on its promises it makes to staff, with 65% saying their leaders communicate and explain the vision of the company, compared to just 40% of workers in other industries.

It also found companies in the best employers list are “clearer about how pay and rewards are determined and the ‘what’s in it for me’ factor in striving beyond the usual expectations”.

Powell says the survey shows these companies pay close attention to their employees’ performance, and are able to align them with the company’s goals whenever they move off track.

“This year’s Aon Hewitt Best Employer research demonstrates that accountability for engagement improvement and effective execution makes all the difference,” he says.

This approach is reflected in the comments of several executives from the top employers.

Merck Serono managing director David Garmon-Jones says “a lot of HR initiatives are not expensive – listening and giving people choices. It is a false economy to mess with people”.

Ben Dixon, managing director of Millward Brown, also said there needs to be a “clear balance between business financials and business investment”.

“Employees need to know what the company goals are and feel part of achieving them. The ability to keep employees satisfied with their jobs (and therefore motivated) gives them the opportunity to experience achievement.”

“They need to celebrate and be rewarded when things go well and understand how they impacted that result. Consistency from the senior leadership team in message and management approach ties into all of this.”

Jan Pacas, Hilti general manager, also said the best employees are those “who are motivated to perform beyond just their usual duties“.

Powell explains these companies top others because of their ability to motivate staff.

“The difference is that their senior leaders have taken accountability for the engagement of their people, and persisted over time in taking action for improvement.”

The country’s top employers are:

Hilti
Aegis
Boehringer Ingelheim Australian and New Zealand
Flexirent Capital
Frucor
InterContinental
Johnson & Johnson
Merck Sorono
Millward Brown

Our First Member’s Feedback!

claire — Wed, 04 Apr 2012 10:46:00 +0000

I asked for feedback from our first member, and this is what I received:

Mount Isa City Council employees 200 people not including contractors. I am the Human Resources Advisor.

Our biggest HR Challenges are:

o As Mount Isa is a mining town we find competing with remuneration and high rents hard but offer a lifestyle alongside local government careers

o Getting our policies and procedures in place

o Getting some streamlined processes happening

o Training for people in Supervisory/Managerial roles

I am interested in HHR’s member program to have a network with a person with a wide range of experience to bring their ideas and experience into our local government.

My experience so far has been very positive and exciting. The resources have bought a huge amount of help to my day to day role and also there are resources that we are using to move us forward in the future.

It has helped me understand more about how others deal with certain issues and also templates to get my train of thought going for projects I am working on.

I would recommend the program to those professionals who are looking for high quality resources to assist them in their day to day running of their HR department and also resources to help with future planning. The resources are of a high value and the cost of membership is very reasonable.

Thanks Roslind for your generous feedback.

Sham Contract?

claire — Mon, 02 Apr 2012 06:24:29 +0000

Sham contracting is an attempt by an employer to misrepresent or disguise an employment relationship as an independent contracting arrangement.

Employers may do this to avoid having to give an employee their proper work entitlements, such as minimum rates of pay and leave entitlements.

Sometimes, employers dismiss, or threaten to dismiss, employees if they don’t agree to become independent contractors. This is against the law.

What’s an employee & what’s an independent contractor?

There are a number of indicators to help tell the difference between an employee and an independent contractor.

Note: No single point below makes a person either an employee or independent contractor.

Employees

Perform work, under the direction and control of their employer, on an ongoing basis
Generally work standard or set hours
Bear no financial risk (this is the responsibility of their employer)
Are entitled to have superannuation contributions paid into a nominated superannuation fund by their employer
Have income tax deducted by their employer
Are paid regularly (e.g. weekly / fortnightly / monthly)
Are generally entitled to get paid leave (e.g. annual leave, personal / carer’s leave, long-service leave) if they are a permanent employee.

Independent contractors

Decide how to carry out the work and what expertise is needed to do so
Bear the risk for making a profit or loss on each job
Generally pay their own superannuation and tax, including GST
Generally have their own insurance
Are contracted to work for a set period of time (for example, 2 months), or to do a set task
Decide what hours to work to complete the job
Generally submit an invoice for work completed or are paid at the end of the contract or project
Do not get paid leave.

What’s the difference?

No single point makes a person either an employee or an independent contractor, it requires an overall assessment of all the factors.

Penalties

Fair Work Inspectors may take an employer to court if they find the employer is involved in sham contracting.

If you’re in the building and construction industry, Australian Building and Construction Commissioner (ABCC) Inspectors may also take court action for sham contracts.

The courts may order the employer to pay a penalty of up to $33,000 per contravention.

Recent FWA Investigations

Late last year FWA released the findings of their audit into sham contracting in the cleaning services, hair and beauty and call centre industries.

The report states that a number of trading enterprises engaged contractors who should more properly have been classified as employees. The Fair Work Ombudsman found misclassification of employees in each of the three industries that were investigated, but does not believe the problem is confined to these industries alone.

While Fair Work inspectors found that most of these arrangements were not deliberate, they did identify a number of employers whom they believe knowingly or recklessly misrepresented the employment relationship to their workers as one of independent contracting.

A number of employers had received advice from accountants on how to structure their operations. It appeared the legality or appropriateness of the arrangements under relevant workplace laws was often not considered.

HHR Tip

From our perspective the easiest way to avoid Sham Contracts is to engage your prospective contractors compliantly from the start.

7 Tips to Improve Employee Engagement

claire — Mon, 02 Apr 2012 05:41:43 +0000

Listening to employees and breaking down bureaucracies are among the most effective ways to improve engagement and empowerment, according to a recent management competition.
Results of the ‘beyond bureaucracy’ challenge to find innovative ways to engage employees have been published on the website of the large global management consulting firm McKinsey.

Managers were asked to describe practices that better engaged their employees, empowered them to manage themselves, or provided a perspective on the organisation from the outside in. A panel of experts chose seven winners from a field of 106 entries. The following is a summary of the practices of the seven winning entries.

1 Letting employees choose their next work assignments

Managers of a product team at Microsoft allowed employees to choose their next work assignments, instead of having assignments allocated by managers. Further, the managers had to ‘pitch’ the assignments to employees, allowing them to evaluate the opportunities and chart their own course. Some managers feared that employees would only join teams with the coolest leaders, but the employees realised that teams with fewer members provided greater potential for advancement, and this helped to balance the distribution.

2 Realistic budgeting

The Norwegian oil and gas company Statoil presented their annual budgets as three different sets of numbers:

Targets: ‘What we want to happen’.
Forecasting: ‘What we think will happen, whether we like it or not’.
Resource allocation: ‘Trying to use our resources in the most optimal and efficient way’.

Separating the numbers allowed managers to be realistic about each. For example, ambitious sales targets could be presented without compromising the integrity of the forecasts.

3 Decision-making by online communities

Electronic Arts, a global company that developed video games and other interactive entertainment, used online communities to coordinate decisions.

The communities acted as cross-functional decision-making units. They complemented more traditional project teams, helping to share best practices, shape decisions that affected several teams, and identify experts.

4 Greater transparency improves morale

Japanese insurance company Tokio Marine Nichido Systems encountered problems with employee-burnout, and introduced a range of internal reforms to improve communication, morale and productivity. These included:

opening office work spaces
flexible working hours
changes to the salary structure (now determined partly by age and partly by performance)
improved communication between board members and employees.

5 One day a week allocated to employees’ personal pursuits

The large Brazilian company Semco allowed employees to ‘purchase’ one work day a week to spend on external activities, such as art, athletics, or non-profit/charity work.

When they eventually retired, the employees could trade back those hours for meaningful part-time work in their later years.

6 Talent development by focusing

Genentech, a large biotech company, introduced a talent development program based on the principles of mindfulness and self-motivation.

Employees chose a skill they wanted to improve and then received guidance and peer coaching on how to focus on a specific goal and develop their capabilities to achieve it.

7 Non-hierarchical work environment

Vodafone UK’s headquarters has no offices and no dedicated desks, so employees can set up wherever they think they will be most productive, preferably adjacent to the group of people they are working with at that time. This approach had a levelling effect on the traditional hierarchy, because all executives became readily accessible.

Further information

Further information about each of these strategies appears, with links to further reading, in the original McKinsey article: ‘Listening to employees: The “Beyond Bureaucracy” M-Prize winners’, McKinsey Quarterly, March 2012, accessed 19 March 2012.

Some tips preventing adverse action claims

claire — Mon, 02 Apr 2012 05:27:26 +0000

Be very clear about your reasons for taking action against an employee, and be able to prove them — to minimise the prospect of adverse action claims.
Those are the two most important elements of a strategy to combat adverse action claims outlined at the 2012 Workplace Law Fundamentals seminar, conducted by Akolade, in Sydney, on 20 March 2012.
This is because the adverse action provisions require a causal link to exist for a claim to be successful. That is, the action against the employee must have been taken because the employee had a ‘workplace right’ or was involved in ‘industrial activity’. Secondly, the onus of proof is reversed in adverse action claims. This means that the employer is required to prove they did not act against the employee because the employee had a workplace right or was involved in industrial activity.

Adverse action claims attractive to employees . . . not very successful so far
Jack de Flamingh, partner in the law firm Corrs Chambers Westgarth, said that the adverse action provisions were one of the few contents of the Fair Work Act 2009 that had resulted in significant changes from the previous legislation. They had resulted in a substantial increase in claims made by employees to Fair Work Australia (FWA) but, so far, relatively few claims have been successful.
There are many reasons why adverse action claims are an attractive option to employees:

Accessible by a much wider range of people than ‘unfair dismissal’ claims, including prospective employees, probationers, contractors and employees above the high-income threshold — however, it does not apply to provisions in common law employee contracts as a general rule because the basis for action has to be found in legislation or an employment instrument (award/agreement).
Time limit for lodging claims is longer, so employees can try other options first.
Remedies available are broader (eg injunctions).
No cap on the amount of compensation that may be awarded.
The onus of proof is reversed, as discussed above.
The scope of ‘adverse action’ is very broad — see below.

To some extent, adverse action claims are being used in substitute for other types of claims. For example, the Australian Human Rights Commission has noted a drop in the number of discrimination complaints and claims that it is receiving, and because the scope of ‘adverse action’ includes discrimination, it is likely that some employees are pursuing adverse action claims instead.
De Flamingh described adverse action claims as ‘a very fertile and evolving area’, but also noted that so far only a few claims by employees have been successful.

The scope of adverse action

De Flamingh said that the scope of conduct that may amount to adverse action is very broad.
Dismissal, discrimination, demotion and disciplinary action are obvious actions, but disputes to date suggest that it can also include any of the following:

initiating an investigation against an employee
removal of access to employer’s internet and email systems
leave without pay as an alternative to termination of employment
issuing a ‘show cause’ letter to an employee
arguments or harsh conversations that, it can be argued, potentially damage the employee’s status or reputation
adverse performance appraisal results
placing pressure or duress on an employee (eg to cash out annual leave entitlements)
making misrepresentations to an employee
issuing threats to an employee (eg of dismissal or disciplinary action).

The above list is not exhaustive. He added that the adverse action provisions are being used by employees and unions to challenge disciplinary action and relatively low-level workplace disputes. Previously, issuing formal warnings to employees was an effective and relatively harmless strategy, but greater care is now needed.

To qualify for a remedy
To qualify for a remedy for adverse actions, there must be two distinct elements:

conduct by the employer
the reason for the conduct, which must be related to the employee having or exercising a workplace right in relation to an employment instrument (such as an award or agreement, but not a common law employment contract) or being involved in industrial activity.

This second point indicates that the motivation of the instigator of the action is crucial, as discussed further below.

The scope of ‘workplace right’ is also very broad. To date, the most-commonly used one is the employee’s ability/entitlement to make a complaint or enquiry in relation to his/her employment, which often crops up during the performance management process. Other common ones include the right to refuse to work unreasonable extra hours and the right to refuse to perform unsafe work.
In relation to ‘industrial activities’, the most common type of claim relates to seeking to have union representation in a dispute.

Motivation of the decision maker

For adverse action to occur, the action must be related to the employee’s workplace right or industrial activity. The employer’s objective motivation is what matters most (ie why did the employer take the alleged adverse action?).
De Flamingh added that this is the clue to avoiding or defending an adverse action claim. The employer should state clearly that ‘[Employer’s name] did [state the action] to [employee] for the following reason(s) [state reason(s)], NOT because [state reason(s) that might give rise to a claim]’. The reason for action needs to be related to the employee’s performance or conduct and the employer must be able to prove that the performance/conduct issue actually existed or occurred.
It is very important to provide the reason for the action up-front, otherwise you are required to prove the reason existed if/when a claim is made. The reverse onus of proof means that claims can be very time-consuming (and costly) to defend.
Note: the High Court is about to hand down a decision in the case of Barclay v Board of Bendigo Regional TAFE (expected by end of March) that is expected to clarify the issue of what is an objective versus a subjective test.

Risk prevention strategies

De Flamingh offered the following tips to employers to reduce the risk of adverse action claims:

Understand the law and be aware of the potential for claims.
Be able to prove why you made decisions, by documenting the reasons at the time. Remember that the majority of adverse action claims are unsuccessful.
Review and update your investigation and discipline processes.
Be very clear about who the actual decision maker is in each matter. It should be a different person to the one the employee has complained about. Also avoid having multiple decision makers.
Test the reasons for making a decision before that decision is actually implemented.
Remember that all documents are discoverable by FWA.
Resolve the matter in the first place if at all possible.

Further information

Further information about this seminar is available from Akolade.

Source: Mike Toten, HR writer, prepared this summary.

Four Valid Reasons for Termination

claire — Fri, 30 Mar 2012 00:06:29 +0000

A valid reason for termination should be classified into at least one of four categories: capacity, conduct, performance or termination on the grounds of redundancy.

1. Capacity

Capacity relates to the employee’s ability to perform the inherent requirements of the job. To rely upon capacity as a reason for termination, the core or substantive duties of a position should be identified and compared against the employee’s ability to satisfy those requirements. Evidence should exist in relation to the lack of capacity, particularly in cases of medical incapacity, and reasonable alternative position or duties considered prior to the decision to terminate.

2. Conduct

Reasons related to conduct can range from serious contraventions of company policies or workplace health and safety obligations, inappropriate conduct, to serious misconduct. There must be evidence that the conduct actually occurred. You should then assess whether termination is a fair option or whether a lesser form of disciplinary action, such as a formal written warning should be considered.

3. Performance

In cases of persistent poor performance of duties, the employee should be notified of the precise issues, given an opportunity to respond and generally provided with a reasonable period of time to improve. If disciplinary action or termination are likely outcomes of performance management, there should be prior warning that continued poor performance may result in such action.

4. Genuine redundancy

Genuine redundancy may constitute a valid reason if it can be demonstrated that a position is no longer required to be performed by anybody because of changes in the operational requirements of your enterprise, consultation has occurred, and acceptable redeployment options have been considered and offered.

HR Tip

Fair Work Australia is hesitant to conclude that a termination is harsh or unfair, where a valid reason is established and procedural fairness ensured, particularly in the absence of significant mitigating factors.

How can HHR help?

The Termination and Redundancy section on our member site, www.myHRconsultants.com.au provides policies, correspondence and checklists which can be used to manage termination issues in your organisation.