Top HR FAQs answered

A recent study unveiled the top HR FAQs for June, highlighting the trouble organisations are running into at the beginning of the financial year.

XpertHR’s “June’s top employment law FAQs” outlined the most pressing matters employers may run into at the moment.

How should an employer calculate a part-time worker’s paid holiday?

According to Fair Work, both full- and part-time employees are entitled to four weeks of annual leave per year based on their ordinary work hours.

So, if an employee works 20 hours per week for a year, they’d be entitled to 80 hours of annual leave per year. This is the equivalent of four weeks for those hours worked.

Shift workers may be entitled to five weeks, depending on the circumstances. This can be checked on the Fair Work website.

Is an employer required to deal with a grievance raised by an ex-employee?

Employment Law Online said you still have the right to bring claims against an employer, even if you have resigned. While the process may become more complicated, it is still valid.

Do employees have a statutory right to time off for fertility treatment?

According to the NSW government: “Where an employee is absent from work to undergo fertility treatment, the employee is entitled to up to five days paid special fertility treatment leave per calendar year.”

These days do not need to be taken consecutively, and they can be split up.

What should an employer do if an employee is off sick for over a week but has not submitted a doctor’s certificate?

Fair Work stated: “Employers can ask employees to provide evidence for as little as one day or less off work. An employee who doesn’t give their employer evidence when asked may not be entitled to be paid for their sick or carer’s leave.”

Awards and registered agreements can specify the policy around sick leave. However, the type of evidence requested must be reasonable.

What is gross misconduct?

Gross misconduct, or serious misconduct, as described by Fair Work, “involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. Examples include: causing serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business, theft, fraud, assault, sexual harassment or refusing to carry out a lawful and reasonable instruction that is part of the job.”

Can an employer lawfully dismiss an employee whose absence is not authorised?

The answer may differ depending on the circumstance. However, according to Fair Work Legal Advice: “Under the Fair Work Act regulations, it is unlawful for an employer to dismiss an employee for being temporarily absent from work due to temporary illness or injury unless the period of absence exceeds three months.”

“Other unauthorised absences will be potential grounds for an employee’s employment to be terminated depending upon the circumstances.”

Can an employee be required to take their outstanding annual leave while on garden leave?

Garden leave refers to an employee being placed on leave as they’re on their notice period during a job exit.

Employees must still be paid by their employer during this period and accrue sick and annual leave. They also cannot be forced to go on garden leave.

Fair Work stated that employees cannot be forced to take annual leave unless the business is closed during the Christmas and New Year period, or an employee has accumulated excess annual leave.

In a redundancy situation, how should an employer select which employees to make redundant?

Research into the specifics should be done so the decision is fair. Employsure listed the selection criteria as:

• Individual skills and qualifications
• Performance or aptitude for work
• Attendance and absence record
• Disciplinary record
• Customer feedback

The selection should be non-discriminatory, objective, and measurable.