Top employment law questions answered

It can be hard to keep up with all the employment regulations and entitlements that affect how you work. To assist in this, answers to the top employment law questions are listed below.

“July’s top employment law FAQs” by XpertHR discussed what issues have employees confused, and it provides some guidance to ensure they’re not left in the dark.

When can an employer dismiss an employee on the grounds of ill health?

According to Fair Work, employees are protected so long as they’ve been away for less than three consecutive months, less than three months total over the last 12 months, or are still using paid sick leave.

Once an employee is away for more than three consecutive months or more than three months in total over the last 12 months, and they’ve used all of their paid sick leave, dismissal is allowed.

When does overtime have to be included in holiday pay?

Overtime is included when the employee works the hours. If a full-time or part-time employee doesn’t work on a public holiday, they’re entitled to their base rate of pay but not the overtime they may have usually accrued.

If an employee receives a payment in lieu of notice, will their annual leave entitlement accrue up to the termination date, or the end of the notice period?

The Fair Work Ombudsman said: “If the employer pays out the notice period, the employee’s employment ends on the date that payment in lieu of notice is made. The employee doesn’t stay employed during the notice period (or continue to accrue entitlements, such as annual leave). If the employer doesn’t pay out any part of the notice period, the employee stays employed for the notice period. Employment can’t end on a date earlier than the day the notice is given.”

Should an employer deal with an employee’s poor performance through its disciplinary or capability procedure?

In Australia, there are two forms of managing performance: underperformance and serious misconduct.

Poor performance would be dealt with through underperformance, which is applicable to employees who are:

• Not carrying out their work to the required standard or not doing their job at all
• Not following workplace policies, rules or procedures
• Unacceptable behaviour at work (for example, telling inappropriate jokes)
• Disruptive or negative behaviour at work (for example, constantly speaking negatively about the company).

Can an employer dismiss an employee because they are in prison?

According to Legal Vision, it depends. Employers must first consider:

• The nature of the offence (i.e. whether it was dangerous or could affect your employee’s day-to-day duties)
• Your employee’s position in the business
• Any potential impact on the business (i.e. whether the offence could damage your business’ reputation or risk the safety of other employees)

Circumstances where it is valid to dismiss employees, according to Legal Vision, are:

• Objectively causes serious damage to the employer/employee relationship
• Damages the employer’s interests or reputation
• Is inconsistent with the employee’s duties, e.g. a police officer engaging in criminal conduct

In a redundancy situation, what obligations does an employer have with regard to offering suitable alternative employment?

Under the Fair Work Act, a redundancy will not be seen as genuine if redeployment is not considered. Whether the redeployment is reasonable depends on the circumstances. Employers must first consider:

• Whether there exists a job or a position or other work to which the employee can be redeployed
• The nature of any available position
• The qualifications required to perform the job
• The employee’s skills, qualifications and experience
• The location of the job in relation to the employee’s residence and the remuneration (pay and entitlements) which is offered

If a disagreement occurs, it’s up to the Fair Work Commission to determine if the redeployment was acceptable.

Is it permissible to dismiss an employee on the grounds of misconduct that occurred outside the workplace?

As with the prison question, misconduct depends on the circumstance. According to Chamberlains:

• The conduct must be such that, when viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer; or
• The conduct damages the employer’s interests; or
• The conduct is incompatible with the employee’s duty as an employee.