If you are an employer in Adelaide, Christies Beach, McLaren Vale, Norwood, Renmark or Unley, in fact anywhere in South Australia you should read on.
You have a contract of employment with each employee.
You know that an employment contract is an agreement between you, as the employer and the employee and it is the basis of the employer/employee relationship between you.
It is taken for granted that the employment contracts with each employee set out the nature of the employment lawyer Adelaide, in other words the employee works full-time or part-time or as a casual, or perhaps even a combination of all these.
There are specific terms and conditions written into the employment contract and it is taken as a given that both you and the employee understand your obligations under the contract.
As an employer you know that under Australian law whether there is in place an employment contract or not there is a set of minimum entitlements owed to the employee.
They are called the National Employment Standards or NES.
As an employer it is illegal for you to agree to an employment contract with an employee that offers anything less than the entitlements that the NES guarantees.
Through the employment contracts you have with each of your employees, the employee
- Will know the maximum weekly hours he/she is to work;
- Is able to request flexible working arrangements;
- Understands their entitlement to annual leave;
- Understands that they are entitled to
- Parental leave
- Personal carer’s leave and compassionate leave
- community service leave; and
- long service leave.
But wait more NES to come. There are also minimum entitlements for your employees in relation to
- Public Holidays
- Notice of Termination and
- Perhaps Even Redundancy Pay
Finally, for some quiet reading the employee is to be provided with a “Fair Work Information Statement.”
Just to be clear if your employee misses out on any of those non-negotiable NES entitlements then as the employer you will have broken Australian law, that is the law under the Fair Work Act.
You have written code of conduct that you expect all employees to observe; you have in place a Health and Safety policy. You also have clear policies that deal with, Recruitment and Promotion, Internet and Email, Bullying and Sexual Harassment, Mobile Phone, Non-Smoking, Drug and Alcohol, and an Anti-Discrimination and Harassment policy. Each of these policies, along with the employment contract set out how your employees are to conduct themselves in that workplace.
Your employment contracts and your workplace policies are up-to-date available to each employee and clearly understood by all employees. All company policies, as well as an employer’s disciplinary code, should form part of the contract of employment lawyer in Adelaide.
In your comfortable home in Adelaide or Christies Beach or Norwood or perhaps even Renmark you feel so assured that the employment contracts and workplace policies you have in place are crystal clear and regulate the conduct of employees while they are at work in your workplace so that you can make a profit.
There would be no problem then in, as an employer disciplining, even perhaps dismissing an employee who engages in serious horseplay, such as an assembly line worker who sprayed a co-worker with paint.
If you were to be called before the Fair Work Commissioner, would your employment contracts and company policies withstand a challenge from an unhappy and disgruntled employee whom you dismissed on the spot for serious horseplay?
As an employer, you would most likely consider dishonesty an example of serious misconduct that would warrant instant dismissal. It would be reasonable for you to take it for granted that there is a law that supports the instant dismissal in such circumstances, after all everyone knows there is a price to pay for say driving through a red light at set of traffic lights.
A slam dunk you would think! But what if you need to cross that line at that intersection at that red light to give access to an emergency vehicle behind you whose path you are blocking.
In fact dishonest behaviour may be considered serious misconduct but it will depend on the circumstances.
No doubt before you took the significant step of dismissing someone from the employment you would be satisfied that the employee’s conduct would make it unreasonable to keep them employed in your workplace.
It is easy enough to satisfy yourself that the employee should be dismissed however you should keep in mind that your employee may well challenge your decision and that if that is the case your record-keeping and your investigations need to be balanced, transparent and aboveboard so that any other reasonable person would have come to the same conclusion.
For example, before terminating their employment did you give the employee a chance to respond to any allegations, and if you did so, did you give the employee the opportunity to have someone with them when they responded to the allegations? Did you take notes of the meeting?
Serious misconduct has never been more highlighted in light of recent allegations of highly inappropriate behaviour made against various media and entertainment personalities.
It is without question, in my opinion that some of the allegations of behaviour that have been levelled can only be described as serious misconduct.
Herein lies a conundrum…
In respect to the NES, employment contracts and workplace policies.
And in circumstances where, the NES does not deal with such behaviours
And where there are no workplace policies in place that deal with such behaviour
And what if by the very nature of an employment contract where the “job description” in itself would include theatrical performances that, under other circumstances had they occurred anywhere else, could be considered offensive and inappropriate and examples of serious misconduct had they occurred in work place other than a theatre or a television set.
Or what if there is no job description at all and the very nature of the theatrical, Bohemian environment it is assumed that “performances” that under other circumstances would be considered inappropriate, are in fact taken for granted and accepted within the industry.
The question to be asked is, does conduct of that kind in that specific workplace constitute serious misconduct and particularly circumstances where all parties to the contract agreed that such behaviour forms part of the workplace agreement?
Perhaps a discussion for another time!
Finally, if you are an employer and you have read this far then ask yourself this question: “Do I want to spend hours dealing with the Fair Work Commissioner in the Industrial Tribunal in litigation with an unhappy/disgruntled employee simply because I didn’t bother to have employment issues in my workplace sorted?”
If you are an employer in Adelaide, Christies Beach, McLaren Vale, Norwood, Renmark or Unley, anywhere in South Australia and you have a question about where you stand in relation to employment contracts with your employees call ORB Lawyers (08) 8384 3430.