If you follow me on Insta or Facebook you may have seen this ⬇️ photo about how I spent my 1st business birthday getting papped by the lovely Rachel of Madison Studio Photography.
This week I wanted to make use of my post to cover off on a few HR related bits and pieces that small – medium businesses commonly have misconceptions about, or are common errors, but aren’t sufficient enough to warrant a stand alone post on the subject.
Terminating employees as a small business
As a small business you may have heard you are exempt from Fair Work action if you have less than 15 employees, a belief that has lead many an employer to just terminate the employment of people willy nilly without cause.
In actual fact Fair Work introduced a Small Business Code in 2009 to provide a framework in regards to the termination of employees. The Code provides a process that employers must demonstrate they have followed prior to termination. If the employee in question is eligible to lodge a claim through Fair Work, and the employer cannot demonstrate procedural fairness was shown through the following of the Code, then Fair Work will rule the dismissal as being unfair and the employer will be liable for compensation.
Requesting or forcing the resignation of an employee
The legal definition of Constructive Dismissal is conduct of the employer was so “harmful, adverse or unfriendly to” the contract of employment and the employment relationship that the employee could not be expected to put up with it. Some examples of Constructive Dismissal include;
- an employer expressly suggesting that an employee resign (irrespective of whether the employee made the suggestion) so as to assist with preserving the employee’s future ability to obtain work;
- an employer actively making it very difficult or impossible for an employee to fulfil their role;
- an employer continuously failing to provide, to a serious degree, a safe and/or healthy working environment (this includes failing to act on bullying and / or harassment of an employee); or
- an employer imposing unauthorised and detrimental variations to the employee’s contract, such as a pay-cut, demotion, change of working hours, relocation or unreasonably failing to prevent or punish a co-worker who may be harassing or discriminating against the employee.
The steps you take as an employer to terminate an employee must be well considered and consistent with your termination policy. No matter how well intentioned your actions may have been, there is rarely a low risk shortcut that can substitute the correct performance management or redundancy process. You can read more about Constructive Dismissal here.
Abandonment of employment
Lets say you have an employee that hasn’t turned up to work for the past couple of days and hasn’t called in sick, what do you do? At what point does their job no longer exist?
Abandonment of employment is defined as “circumstances where an employee is absent from the workplace without reasonable excuse, or has failed to communicate with the employer to provide an excuse for being absent.” Traditionally, modern awards have allowed an absence of more than 3 days as evidence a worker has abandoned their employment and an absence of 14 days without reasonable cause showing clearly that they have. Recently Fair Work removed the relevant clause from a number of awards, despite this procedural fairness is still required, therefore best practice for unauthorised absences should be;
After a 3 day period of unauthorised absence the employer should make an attempt to contact the employee firstly with a telephone call, and, if there is no response, to follow up with a written request sent by email or registered post requiring the employee to provide an explanation for their absence by a specified deadline.
It is very important that the employer is aware of what provisions govern that particular employee’s employment— whether that be a modern award, enterprise agreement or contract of employment — as that particular instrument may contain a specific clause stating how abandonment of employment must be handled. Also, an employer may have a workplace policy dealing with absences which should be considered.
Finally, once all avenues have been exhausted and there is no explanation for the absences provided, an employer should always issue a letter stating that the employee’s employment has been terminated without notice, effective immediately, on the basis of abandonment of employment.
What is NOT abandonment of employment
- When an employee has provided a medical certificate for an absence (note the “temporary absence” provisions of the Fair Work Act).
- When an employee has made a workers compensation claim and is unfit for work while being paid weekly payments under the claim.
- When an employee has taken authorised leave.
- Unnotified absence from work for up to 3 days.
Do you have a subject that you would like to know more about? Contact Me via email to let me know and I can write a blog or Facebook post about it.
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