From hiring to firing – written by Nicole Doyle, Associate.
Small businesses today face a growing minefield of challenges when it comes to employees. From recruitment right through to the cessation of an employment relationship, it is important that employers know their legal rights and obligations.
The modern employment relationship is governed by:
- Legislation – including the Fair Work Act, the Work Health and Safety Act, the Disability Discrimination Act, the Workers Compensation and Rehabilitation Act and the Competition and Consumer Act;
- Industrial instruments – including modern awards and enterprise agreements;
- Contract law; and
- Common law, including negligence and fiduciary duties.
Miller Sockhill Lawyers have created the following checklist designed to guide employers through their employment relationship from hiring to firing:
- Publish a clear and transparent job advertisement. The job description should accurately describe the genuine requirements of the role and avoid discriminatory language.
- Use clearly defined selection criteria to shortlist and then interview candidates. It is important to clearly document any interview process as an unsuccessful candidate may request feedback or suspect bias.
- Conduct referee checks and arrange medical testing if relevant to the role prior to formally offering the position. It is not uncommon for candidates to withhold information in the application process.
- Offer employment subject to a probationary period.
- Prepare and sign an employment agreement as soon as possible after the employee commences.
- Induct all new employees with a comprehensive explanation of the workplace, policies and procedures and expectations. An employer cannot later rely on a policy unless the employee was aware of and understood the policy.
- Prepare a position description that matches the job description advertised. Clearly defining expectations can avoid confusion and is an easy way to measure the performance of the employee.
- Maintain up to date and relevant policies. The operational requirements of your business should be detailed in a policy and not the employment agreement. Such policies can include a uniform policy, IT policy and WHS policy.
- Know the National Employment Standards and any applicable award and review both on an annual basis. Minimum wages and entitlements typically increase each financial year. Financial penalties can be imposed on employers who fail to keep proper pay roll records or underpay employees. We note that the Miscellaneous Award also has a wide application and may apply to your business.
- Conduct performance reviews annually, particularly with respect to casual employees, and update employment contracts if necessary. Casual employees covered by an award (which the majority are) are entitled to request permanent employment if they have been engaged on a regular and systematic basis for at least 12 months.
- Always act fairly and reasonably. It is critical that your policies are applied consistently among employees. Particularly when it comes to disciplinary action, it is also critical that employees be afforded procedural fairness. Even if an employer has a valid reason for taking management action, remedies exist for employees if the management action itself was unfair.
- Keep a paper trail. The best way to substantiate action taken against an employee is with evidence.
- Protect your business with post-employment restraint of trade clauses in your employment contracts.
Miller Sockhill Lawyers can draft, update or review your employment contracts and policies. Miller Sockhill Lawyers can also guide you through any problems you might encounter in your employment relationship.