Wage theft accusations are not new in Australia. That doesn’t change the fact that it can leave bruised brands and big dents in bottom lines. Small cafés to giant international organisations have been targeted. Their HR policies have been investigated with particular focus given to overtime payment. Industries such as the hospitality industry are hot targets with wage theft and exploitation accusations.
Wage theft can take various forms such as underpayment of wages, having entitlements such as leave and penalty rates withheld, and an employer not making required superannuation contributions on an employee’s behalf.
Business owners need to address two questions: What brings about wage theft? How can the business solve this?
Wage Theft Sources
An interesting example was brought to the public’s attention via a very public protest in Northcote, UK. Former staff had misunderstood the company’s award system (or the company hadn’t been clear enough?). Staff thought weekend portions of wages could be traded for staff meals. In addition, the staff members were unclear on the wage rates. This lack of clarity is a quick way to get a labour complaint against you, even if it is an unwitting lack of transparency.
The Chamber of Commerce Chief Executive Greg Bicknell commented that “The award system is quite complex for small businesses to use.” There are other examples where businesses themselves have misunderstood their complex rewards system, short paying staff thousands of dollars.
A globally published wage theft incident occurred with Lush cosmetics stores. They purportedly unwittingly underpaid $2 million to 5,000 workers. This was apparently due to a glitch in its payroll system brought about by a 2010 transition to Modern Awards.
Another incident in the international media is that of the Super Retail group. This, again, was due to the company not correctly interpreting their own complex award system. Other areas where they tripped up were overtime, allowances and time in lieu. This purportedly was also due to miscalculations.
Wage theft scandals (only the tip of the iceberg)
- February 2020 – high-end restaurant Dinner by Heston Blumenthal in Melbourne allegedly underpaying its staff by A$4 million
- February 2020 – Supermarket giant Coles reveals staff payment issue, sets aside $20 million to cover costs
- February 2020 – George Calombaris’ restaurant group, Made Establishment, has gone into voluntary administration following an ongoing underpayment scandal.
- February 2020 – Target will be forced to pay back at least $9 million to employees after it discovered an issue with its payroll.
- June 2020 – Supermarket giant Woolworths has revealed another blowout in its wage theft scandal, admitting it owes $390 million to short-changed workers after uncovering more in its hotel’s division.
Ignorance Is Not A Legal Plea
As we all know, pleading ignorance of a law or business fault does not protect your business from the responsibility. A very high end set of eateries Burch & Purchese Sweet Studio and Vue de Monde were put in the public eye when staff sued them. The claim is annualised salaries worked out to 38 hours of payment when 50 hours were being worked per week. In addition, 12-hour shifts were worked with no breaks.
The restauranteur Neil Perry also came under fire and settled on a 1.6 million dollar payback. This was also due to annualised salaries. The annualised system needs to be well understood by both staff and business owners, or you can easily make compounded errors.
There are lists of examples with payments in the millions: George Calombaris – $2.6 million back payment and a significant impact on his TV career. Bookings slowed down dramatically.
When is wage theft a crime?
New laws were passed in Queensland Parliament on 9 September 2020 amending section 391 (‘Definition of stealing’) of the Queensland Criminal Code to capture deliberate, intentional behaviour leading to under or non-payment of entitlements as a criminal offence. This could include where deliberate wage theft occurs through:
- unpaid hours or underpaid hours
- unpaid penalty rates
- unreasonable deductions
- unpaid superannuation
- withholding entitlements
- underpayment through intentionally misclassifying a worker including wrong award, wrong classification, or by ‘sham contracting’ and the misuse of Australian Business Numbers (ABN)
- authorised deductions that have not been applied as agreed.
The impact is far-reaching. Your access to talented, top quality resources also falls away. Partnerships and collaborations will be nervous about being associated with you.
From a federal government perspective, wage theft is being viewed as a criminal offence. Queensland’s Palaszczuk government had hearings after being contacted by 169 people requesting intervention with systematic wage theft. On 16 June 2020 the Victorian Parliament passed Australia’s first laws on wage theft, the Wage Theft Bill 2020, which creates a criminal offence for underpayment of employee wages and entitlements by employers.
Using Tech, Using Specialists
The Fair Work Commission has stated that businesses need to comply with the current system and fast. Modern awards complexity requires time, money, and effort. In 2018 a Payroll Benchmarking Report stated an estimated $36.30 cost per single payslip for SMME companies (<200 employees). Time, money and effort are also required to keep up with ongoing superannuation, and tax policies change.
There are automated systems to monitor time and attendance, employee rosters and apply modern awards. The setup is critical with regards to data quality and correct legal and administrative interpretation of company policies. A transition project with specialist stakeholders is recommended.
Responsibility And Trust
As a business owner, you are 100% responsible for paying your staff correctly. It is not the employees’ responsibility to notify you of a glitch that they didn’t see for years. What needs to be noted here however is that the new law criminalises ‘deliberate wage theft’ by an employer against an employee.
Investing in specialists to correctly review, setup, automate and manage your payroll, awards, contracts and HR disputes is a highly valuable insurance policy against public scandals in the future.
Having a reliable and fair HR Consultant for your business means happier staff, greater loyalty and the best service possible to your customers/clients.
To quote Rosie Ramirez, of Tanda software, it creates “a win-win situation because it maximises the bottom line without defrauding the front line…”
Get your payroll compliance reviewed starting today. At Fresh HR Insights [insert hyperlink to https://www.freshhrinsights.com.au/services/payroll-compliance-reviews/] we can protect businesses such as yours from wage theft mishaps or accusations.
We audit your compliance and give clarity and peace of mind to you and your staff. We can help your business set a solid foundation and support you effectively when faced with problematic employees, unfair dismissal [https://www.freshhrinsights.com.au/how-to-protect-yourself-from-unfair-dismissal-claims/] claims or harassment claims. This allows you to focus on growing the business.
Set your appointment today to start protecting your company. Alternatively, call us on 0452 471 960 or email us.
Fairness’ can be quite a relative term, depending on personal perspective. Still, in terms of a business and employment scenario, certain circumstances fall within or outside of those boundaries. Whether you keep your company safely within reasonable levels depends on your overall approach to your employees. Unfortunately, however, sometimes it’s just not a good fit between the two of you, and you end up having to deal with unfair dismissal claims after letting go of an employee.
There are numerous reasons to terminate an employment agreement from outright and explicit defiance of company rules to clashes between employees that cannot be resolved due to irreconcilable differences. But, as is the case with many interactions, people can have a knee-jerk reaction out of anger, and in this case, it might well come back to bite you if you’re the one firing a staff member in a moment you feel overwhelmed.
If you do find yourself facing unfair dismissal claims, the best course of action starts with being thoroughly prepared.
Respect The Process
Over the years, a reasonably tight-knit structure has been developed by the commission to deal with unfair dismissal cases. This is, in part, due to employees familiarising themselves with the process and manipulating the matter in their favour.
Employers must present sufficient records of the employee failing to positively respond to warnings or performance reviews and specify as clearly as possible what led to their dismissal. Feeling justified as an authority is not going to suffice as a reasonable warrant.
Remain Consistent In How You Treat Staff
When your business is brought under investigation, there will be reviews done of the way you have treated other staff members in the past. This includes how severely they were reprimanded, which process of warning and reprimand were followed, and whether you as an employer have been inconsistent in the treatment of employees.
If it is found that your process has been erratic, there could be strong grounds for a claim that they did not know where the boundaries were drawn, or that you were harsher on them than others.
Make Your Policies Watertight
In addition to fair and consistent treatment of your employees, be sure to set out unambiguous and specific business policies as well. This includes rules for requesting leave notice as well as possible exceptions to this rule, should your employee face an emergency or have a valid reason to request urgent leave.
For those instances where a point of consideration is not clearly stated in policy clauses, introduce an open-door policy of sorts, where an employee can raise the matter with their superiors to reach a recorded decision and course of action. Should they not respect this policy, it can then be held against them if they claim unfair dismissal.
For more information and professional, guided assistance, contact us. Discover how we can help you create a better, more solid human resource policy for your business.
What will the commission look for when considering an unfair dismissal claim?
It may be that the dismissal is:
- harsh but not unjust or unreasonable
- unjust but not harsh or unreasonable, or
- unreasonable but not harsh or unjust.
The concepts of harsh, unjust or unreasonable may overlap.
A dismissal may be:
- unjust because the employee was not guilty of the alleged misconduct
- unreasonable because the evidence or material before the employer did not support the conclusion
- harsh on the employee due to the economic and personal consequences resulting from being dismissed, or
- harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime).
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
- whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
- whether the person was notified of that reason
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
- any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
- if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
- the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
- the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
- any other matters that the Commission considers relevant.
Owning a business is no simple feat. You have to deal with maintaining a continuous, focused balance between the quality of service you provide and maintaining good relationships with customers while working on acquiring new ones. Then, of course, there’s the very machine that drives your company: your employees.
Even with careful reviews and selection processes before hiring a new staff member, sometimes situations arise where said employee’s behaviour was in direct contravention to company policy. Alternatively, it caused such a sudden and intense disruption that decisions were made to terminate their employment immediately.
Whether the decision was on justified grounds or not, sometimes there will be a disgruntled employee striking back at you and demanding payout for unfair dismissal. There are several cases to reference where companies were forced to provide compensation after the release of an employee was found to be unfair.
Here’s how to reduce the chances of this happening to your business.
Be Sure To Understand The Situation From All Sides
If an employee fails to live up to their role or acts in a way that requires reprimand, be sure to take reasonable action before considering dismissal. This includes discussing the situation with the employee and clearly explaining what is required of them. Also, tend to their concerns and show that you care about their wellbeing as an employee. Sometimes there are less obvious, underlying causes for their behaviour and knowing about these will aid you in making appropriate decisions. Forming a relationship based on trust and mutual respect will also improve their work ethic while reducing the chances of things turning ugly later down the line.
Provide Sufficient, Warranted Intervention And Warnings
Always ensure that you have a concrete historical timeline of when incidents occurred and that a warning was issued to the employee, clearly stating the reason for being reprimanded. Ensure that you have sufficient documentation to prove that you have done all you could to salvage and support your employer/employee relationship.”if it’s not written down it didn’t happen”
Remember that a compassionate approach and intervention at first will be far better received than immediately lashing out against the employee. Steadily increase the level of urgency and clarify what the problem areas are if they recur.
Lastly, remember that your employees are people. The longer they work for you, the more they will expect their loyalty and time to be appreciated, and their concerns heard. Scale your response and approach accordingly, and maintain objective reasonability at all times if you want to prevent payout for unfair dismissal in future.
Are you looking for HR solution that you can depend on? Contact Fresh HR Insights today for the ultimate preventative solution. You can also check out our – 9 Burning HR Questions Answered https://www.freshhrinsights.com.au/product/top-9-burning-hr-questions-answered/ for the answer to some of the key areas our clients often ask us about.
A performance improvement plan (PIP) can solve workplace productivity issues and help even the most unlikely of employees thrive. Not every employee is efficient at delivering projects on time. It could be that they lack focus or create more work and setbacks. To address such concerns, a supervising member of the workforce may speak to an employee with the hope that this resolves the problem. However, even if the worker tries to do better, they may continue to have difficulty completing their tasks.
This is where a successful PIP can provide employees with the necessary directions for completing specific goals. It can be an efficient tool for increasing productivity and taking care of weakness in the workplace.
What Is A Performance Improvement Plan?
A PIP is an official company document that declares the existence of any chronic performance issues and goals that a worker must achieve in order to redeem good standing with the organisation. These plans typically have a specific timeline in which it needs to be completed.
In layman’s terms, it’s like being putting an employee on probation in school – the worker will be monitored closely during this time. A PIP is meant to provide concrete ways to turn poor performance around.
When Is It Appropriate To Use A PIP?
As mentioned above, PIPs work best to solve performance issues, like a team member not reaching their mandatory sales goals or failing to complete projects on time. PIPs will commence for a fixed period (typically between 30 and 60 days) and involve routine meetings to gauge the worker’s progress.
If once this period comes to a close, the worker in question’s performance has not improved, you can decide whether to start the disciplinary process which may lead up to and include termination of their employment.
Where, a disciplinary warning is only necessary when there is a policy that the worker has violated the PIP looks to support the employee in improving their capability or conduct. The disciplinary written warning is where there is no option to improve and is typically for a severe or repeated offence and more often than not due to the conduct of the employee.
A PIP is recommended for employees that may need a push (or support in the right direction), but the issue is not so severe that a disciplinary action and/or warning is warranted.
For HR solutions and advice when you need it, contact Fresh HR Insights. Check out our website, call or email us and let’s talk about we can help you with Performance Improvement Plans.
Key take away – What ever process you as a business owner initiate you need to ensure that you advise the employee of the areas of concern, given them an opportunity to improve and or respond, allow them a support person and have it all in writing. Download FREE our importance of documentation checklist
Virtual HR means having HR advice and support whenever it is needed – giving you the chance to protect yourself from Fair Work Breaches. This in turn means having peace of mind in times of turbulence thanks to the HR experts supporting your small business every day.
If you’re new to the world of Virtual HR, check out our Small Business New Starter Kit. With Fresh HR Insights we will manage your records, new employee procedures and more, leaving you to deal with the important things like running your business.
Advice & Support
Virtual HR means having a team of professionals that offer expert advice and support on matters such as:
- Pay rates and BOOT calculation
- Award and Legislation interpretation
- Workplace legislation obligations
- Probation periods and workplace inductions
- Disciplinary Management
- Absence management
- Terminations of employment
- Unfair Dismissal claims
- Sexual Harassment, discrimination and bullying claims
- Updating and developing policies and procedures
- Casual Conversion clauses and Management
- Employment Contracts and flexible working agreements
- Reasonable Management Action v Bullying claims
No matter the situation, your team of HR experts will know what to do and offer support whenever you need it.
With Virtual HR, you with always have open access to your preferred consultant. Additionally, your Virtual HR team will be accessible over the phone or via email to fully support your business.
Your HR Policy Problems Solved
Virtual HR supplies small businesses with HR policies and employee handbooks in fully downloadable formats. You will never need to guess the next step or be in the dark as to the best legal course to take because Virtual HR will be there to guide you.
Fair Work Australia Legislation Updates
Virtual HR services include remaining up to date with legislation. You can rest assured that your workplace procedures are on the right side of the law by having your HR team regularly update you on legislation changes in Australia.
Are you ready to discover what Virtual HR can do to improve your small business? Our team of HR professionals here at Fresh HR Insights offer free 30-minute consultation calls. Click here to schedule your free, obligation-free consultation.
Managing employees can be complex, but a claim-free and happy workplace with motivated, loyal, and productive employees, is possible through a few simple steps and a fair and transparent process, free from discrimination, or harsh, unjust or unfair treatment.
Disciplinary action which is not handled correctly, can expose a business to legal risk. These risks include findings of unfair dismissal, adverse action (like unlawful termination) and discrimination. If a claim is successful, it can lead to damaging financial penalties by Fair Work Australia, the reinstatement of an unfairly dismissed employee and damage to the employer’s reputation.
Due to the minefield of legislation when it comes to Fair Work, terminating an employee is the greatest risk for employers to take. This is only because there is a chance that the employee could dispute the termination through one of four methods of claim:
- Unfair Dismissal
- General Protections/ Adverse Actions
- Breach of Contract
If owners and managers are not careful, any of these methods of dispute can negatively impact businesses in some if not all the following ways;
- Lost time,
- Compensation and penalty costs (the compensation for unfair dismissal claims is limited to six months wages or up to $76,800k in compensation – as of the 1st of July 2020)
- Legal costs,
- Potential forced reinstatement of the staff member, and
- Damage to the business’s reputation.
What about employees of less than 12 months?
Your employees can not bring an unfair dismissal claim in the first 12 months of their employment, which means they cannot take you to the Fair Work Commission simply because they believe their dismissal was “harsh, unjust or unreasonable”.
However, this does not mean you can dismiss an employee for any reason, even in the first 12 months of employment. You are still bound by the general protections in the termination provisions of the Fair Work Act.
Here are some examples when a business gets a dismissal wrong
- Basic error costs employer over $10,000 in unfair dismissal case – In this case the employer lost an unfair dismissal case and was ordered to pay compensation to the employee in the amount of $10,695(approximately 13 weeks’ pay). Adding insult to injury, the employee then sought a cost order against the business, arguing it had acted unreasonably during the proceedings. The costs application was successful, with the Commission found that the business acted unreasonably when it reneged on the “entirely reasonable” settlement struck during conciliation without any proper basis for doing so. A costs order in the amount of almost $3,000 was ordered against the business (on top of the $10,695 in compensation).
- An employer has been ordered to pay 17 weeks’ salary worth $22,882 as compensation to an employee who was unfairly dismissed by her employer after she refused to sign her revised employment contract.
- Farmer v KDR Victoria Pty Ltd T/A Yarra Trams FWC 6539 a tram driver was found to be wrongly accused of using his mobile phone while operating a tram after a flawed investigation into the incident, therefore there was no substantive and valid reason for dismissal.
- An employee was dismissed from after she was found asleep on the job the morning after the Melbourne Cup. She was sacked for being intoxicated at work, but the Commissioner found the business did not have sufficient evidence to prove she was drunk and did not provide her with an opportunity to respond to the allegation. She subsequently won the case and was awarded close to $7,000 in compensation.
- A recent case involving a casual bottle shop worker who was unfair dismissed for not cleaning up a broken sign showed a casual worker can be covered by unfair dismissal protection if they can show they work regular shifts. The employee was awarded $7,000 in compensation after the Fair Work Commission ruled he was covered by unfair dismissal laws because he worked on a regular and systematic basis and could reasonably expect to work the same shifts each week.
- If you encourage something, you can’t sack someone for it – an insurance broker awarded $300,000after he was sacked for passing out drunk in a hotel corridor. Employees in the company were expected to socialise and consume alcohol with clients and prospective clients and were routinely reimbursed alcohol expenses resulting from employee gatherings or entertaining clients. Justice Taylor awarded damages of $296,650: $99,092 in lost salary, $118,182 for his lost retention bonus, $48,620 in long service leave and $30,755 in interest. – “If the employer is going to conduct a training conference that includes alcohol at dinner and paying for alcohol at a venue afterwards the employer needs to accept some degree of responsibility,”
Did you know: The Commission has the discretion to order one party to an unfair dismissal matter to pay the other party’s legal or representational costs, but only where the Commission is satisfied the matter was commenced or responded: vexatiously or without reasonable cause, or. with no reasonable prospect of success.
Employers often tell us that the system is geared towards the employee BUT NO –you’re your case right and you, as a business can get orders awards in your favour too – In Green v Toll Holdings Pty Ltd (2015 / 8793) – The Fair Work Commission made an order requiring an employee who filed an unfair dismissal claim against his former employer “without reasonable cause” to pay the employer’s legal costs of $18,618.31.
- Unfair dismissals can be upheld where terminations are substantively unfair, that is where there is no valid reason to terminate employment.
- Procedural fairness is also an important consideration in determining whether are dismissal is unfair.
- The FWC also takes into consideration whether the termination is otherwise unduly harsh in relation to the effect on the dismissed employee.
This is where a disciplinary manual can guide businesses safely through the disciplinary process step by step through the provision of templates, tips and advice and to ensure procedural fairness. If this manual is followed, you will be drastically reducing the risk of having an unfair dismissal claim filed against your business. However, it must be said that this manual is paired best with expert advice to ensure that each unique case is taken into full consideration.
For a disciplinary process to be considered effective and risk-free, business owners and managers need to understand:
- What can be viewed as an unfair dismissal;
- How and when a business can lawfully dismiss an employee;
- How a business’s policies and procedures can help you manage dismissals in the workplace;
- The alternatives to a dismissal; and
- The notice and termination compensation requirements.
Fresh HR Insights has assisted various business owners in the preparation of unfair dismissal claims while also acting as an agent in the conciliation process. Even so, we sincerely hope that you adhere to our procedures so that this is prevented. We can help make sure that you have the right documentation, the right process, and approach all dismissals as per the Fair Work Australia Legislation. Do you need practical support? Click here to book a consultation with us today,
Many businesses make use of performance improvement plans to gauge the current performance of their employees and analyse this data to assess how things can be done better.
As HR specialists, we have seen that performance improvement plans can assist businesses in a myriad of ways. By implementing a performance improvement plan, you could experience the following positive results:
Retention of Employees
Hiring new employees is a time-consuming and expensive task, so you want to retain as many of your valued employees as possible. Performance improvement plans help to retain your current employees, as they pick up on ways that employees’ performance and work satisfaction could be improved.
The fact that you are devising a plan, will also show your current employees that you care about their job satisfaction. Once a performance improvement plan has been set in place, it can be used as a reference for when employees face certain struggles.
As your business grows and expands, the skills of your employees may have to grow and expand with it in order to keep up.
You don’t need to hire new employees necessarily, as a performance improvement plan can indicate where further education and training will be most valuable for your current employees.
Heighten Your Standards
A performance improvement plan allows you to take a good hard look at your current standards and assess which standards and expectations should be improved upon. These improved standards should be communicated to employees so that they know the new business benchmarks.
One of the most enticing factors of performance improvement plans (well for employees at least) is the assessment of rewards. Incentives can be a great way in which to improve production, performance and general atmosphere. Performance improvement plans can help assess which rewards will work best for which goals.
Make Use Of Employee Skills
One of the greatest benefits of performance improvement plans are the insight that they give you into your employees’ strengths and weaknesses. After an assessment of the plan, you may want to offer certain employees more responsibilities and provide other employees with further training.
This is a real morale booster and shows your employees that you care about seeing them succeed.
Protection against unfair or unlawful dismissal claims
Have you ever heard the saying “if it wasn’t written down it didn’t happen” Paperwork and process is the key to performance issues. Without a performance management process in place you are hard stretched to terminate without the risk of being found harsh, unjust and unreasonable.
In 2020 with job prospects low and a recession on the horizon after the COVID-19 pandemic there will be a greater and almost certain chance of an application for unfair dismissal occurring. The reality is what does someone have to lose? The current application fee is $73.20. and this fee can be waived in cases of serious financial hardship.
Make sure it is not you losing some money out of your bank account let along the time and effort to defend such a claim. Get the expert support on the process NOW.
We have a comprehensive manual currently under development. We will be covering off the following areas;
- Performance management
- Communicating expectations
- Providing Opportunities to improve
- Disciplining for poor performance
- Performance reviews
- Step by Step guides
- Counselling under performance
- Performance issues arising from an illness or injury
- How to discipline a poorly performing employee
- What to do before dismissal and underperforming employee
If you would like to be on the list to receive one at the introductory new release offer when they are released, kindly email us today. You can also sign up to our newsletter and not only keep up to date with all things related to Employment Relations BUT you will be there when we announce our Performance Management, PIPS and Perfromance Appraisals release. you can contact us for human resource policies and procedures.
Whatever the size of your company, Human Resources has to form an essential part of your business in order for your business to run effectively. For small businesses especially, there are lots of advantages to using a HR consultant.
As a professional HR consultancy firm, we have helped many businesses solve HR issues through our expert services. An outsourced HR consultant could truly transform your business through:
When you have an HR emergency, but no HR department to deal with it effectively, it can cause major issues throughout the running of your business. By making use of the services of an outsourced HR consultant, you are able to hand over HR issues as they arise and have the peace of mind that they are being dealt with effectively.
If you’d like to hear how our team, at Fresh HR Insights, can take care of HR tasks and solve any HR problems you may be facing, feel free to make use of our free, 30-minute, obligation-free consultation call.
With Fresh HR Insights we understand that business is not always a 9am – 5pm so we are available when you need us. If that means weekends or evenings – no problem. Just because others have stopped does not mean that you don’t have the support you need when you need it.
Most small businesses consist of a small team, with each team member having to take on a few roles, and operate somewhat outside of their job description, in order for operations to run smoothly. Sometimes these additional tasks can take up valuable time, especially if the person doing them is not an expert.
Outsourcing will save you both time and money as it will allow for the more efficient running of your business and ensure that tasks are delegated to the right person. Having the expert at the helm also means that the job not only gets done properly but also quickly. No fumbling about trying to find the information.
You can’t argue with expertise and sound advice. An HR consultant has all the knowledge and experienced needed to give you insightful advice as to how your operations, methods and procedures could be improved. HR consultants focus on making small, easy adjustments that make for greater outcomes in the grander scheme of your operations. There are many things that they may be able to see that you don’t. At Fresh HR Insights we pride ourselves on our academic achievements, continued professional development and real world experience – a combination of expertise above many others.
Within every industry, there are a variety of intricate rules and regulations that businesses need to abide by. If you don’t have a HR consultant or department in place, you may be breaking laws that you do not even know about. When it comes to matters of employment legislation ignorance is no excuse. Give yourself the peace of mind by outsourcing a professional HR consultant.
Want to experience what a HR consultant could do for your business? Our team at Fresh HR Insights offer free 30-minute consult calls. Click here to book a free, 30-minute, obligation-free chat.
It is true that the great majority of unfair dismissal claims in Australia are resolved before they reach a hearing with the Fair Work Commissioner. However, these disputes can still end up costing companies significant time and money.
A person has been dismissed from their employment when:
- Their employment has been terminated at the initiative of the employer, or
- They have resigned their employment but the resignation was forced by something the employer did.
What Can Be Considered An Unfair Dismissal?
We can say that an employee has been unfairly dismissed when the Fair Work Act labels it as such. If a dismissal is found to have been:
- Unreasonable, unjust, or harsh;
- Was not a genuine redundancy;
- And was not consistent with the Small Business Fair Dismissal Code.
2018-2019 FWC Annual Reports
The Fair Work Commission’s (FWC) annual reports highlight emerging trends within employment law in Australia. The latest report for the 2018-2019 financial year advises that employers have greater regard to the general protections provisions when interacting with members of the workforce.
To summarise the findings within these reports, there has been significant growth in the number of general protections claims over the previous financial year. It is interesting that while the number of applications lodged and finalised has decreased (5,287 in 2017-18 down to 4,932 in 2018-19), an increasing number of agreements are only achieving approval once there has been a provision of undertakings. Here are some of the key findings regarding unfair dismissals within this report:
- 13,422 applications for unfair dismissal were finalised, 78% of which were resolved after a conciliation.
- Just 5% of applications were resolved by the FWC. Only 19% of which were found to be harsh, unreasonable or unjust dismissals.
The costs that a claim such as this can have on your business extends further than just the monetary kind. Some of these can include the cost of disruption to the business, management time, the cost of legal representation, and more still.
On average, an unfair dismissal case can cost a business up to $13,500.
One case in August 2017 saw a basic error cost an employer more than $10,000 in an unfair dismissal case.
A few of the claims within the case include the business having failed to appreciate its exposure to an adverse outcome leading to an aggressive stance, reneging on a settlement agreement, a failure to maintain communication during settlement discussions, a number of failures to produce witnesses, damaged credibility of statements, and more.
The outcome of this case was an unsurprising loss and an unfair dismissal payout of $10,695 (roughly 13 weeks’ pay) to the dismissed employee. The costs did not stop with this amount, there was an additional $3,000 ordered against the business due to indiscretions and reneging on the settlement agreement.
Behind the scenes, there were no doubt plenty of other overheads proving the importance of remaining compliant with the legal system and having access to specialist advice.
Save yourself the headache and the hidden costs of remedy payments by seeking expert advice. Fresh HR Insights is well-versed in the legal ins and outs of the commerce sector and can help your business remain on the straight and narrow and avoid these kinds of costly expenses.
We have helped various business owners across various industries in the preparation of unfair dismissal claims and acted as an agent in the conciliation process. The ideal however is don’t go there in the first place and ensure you have the right documentation, the right process and approach all dismissals fairly and in line with legislation. Need pragmatic support – call Fresh HR Insights.
Expert HR support and advice is something that every company needs. Protect yourself and your workers from fair work breaches and have that peace of mind in times of turbulence with an HR Expert supporting you every step of the way.
What Is The Benefit of Using HR Consulting Services?
No matter the size of your company, Human Resources is the glue that holds all of the elements together. This department does a whole lot of good for businesses including damage prevention and control. Among these functions are:
- Training and development
- Performance management
Expert HR solutions can come in many forms such as virtual, outsourced and internal. One convenient way that these solutions can be accessed is through an on-call consultant or agency for times that you require advice on anything from workplace procedures to conflict resolution and beyond. Having these services at your beck and call will mean less stress and a positive impact on your business’s bottom line.
Here is a closer look at some of the benefits that expert HR services provide.
A HR consultant can provide expert advice on areas that are in need within your business. From establishing procedures to troubleshooting disputes, a professional HR consultant will be able to help guide you and ensure that everything is done by the book. It is a requirement of the Australian Human Resource Institute (AHRI) for all Certified Professional members (Which Fresh HR Insights Director Paulette McCormack is) to maintain Continued Professional Development (CPD) hours giving you confidence in up to date current support and advice.
Each industry comes with strict rules and regulations, expert HR services can help keep you in line and your professional hands clean. This saves businesses a lot of trouble down the line as some rules may overlap or seem murky to the untrained eye.
Workplace may fall under a model Award. Awards provide pay rates and conditions of employment such as leave entitlements, overtime and shift work, amongst other workplace related conditions. Most modern awards relate to particular industries or occupations. There are currently 122 modern awards of general application. Awards can change so its vital that you keep up to date. A breach of award conditions can attract substantial civil penalties for a corporate employer and individuals involved can also be penalised for each breach
Employee Development And Training
You may have stellar methods for training and developing employee skills but there are several points within these procedures that need to be considered. For instance, employee motivation and making sure that they feel heard is extremely important. With the right advice, your workforce will feel appreciated and productive so that your business can grow.
Paired with the above benefit, this assistance from a consultant will greatly influence productivity. With the company goals in mind, it is good to be sure that your workforce is on the same page as you. A HR consultant will guide you toward implementing a comprehensive performance management plan and help you utilise it to its maximum potential.
Some other benefits that expert HR consulting services and packages can offer businesses include:
- Effective recruitment
- Time management
At Fresh HR Insights, it is our passion to keep business booming. Let us assign a HR expert to you today.
Unfair dismissal claims are every employee’s worst fear. Here are some common cases and scenarios of unfair dismissal in Australia that everyone should know about and learn to avoid. If you are an employer, you can learn to avoid such happenings through the correct HR procedures.
What Constitutes As Unfair Dismissal?
According to Australian workplace laws, legislation and the Fair Work Act, unfair dismissal refers to an instance whereby an employee is dismissed from their position in an unreasonable, unjust or harsh manner.
A dismissal can be considered harsh, unjust and unfair if the worker was:
- Dismissed in any manner listed above;
- Let go without the correct dismissal procedure;
- Not provided with the opportunity to have a support person
- Not given an opportunity to respond
- Or dismissed by a small company that did not follow the Small Business Fair Dismissal Code.
COVID-19 And Unfair Dismissal
This has to be the most relevant scenario out there due to the global pandemic that is currently wreaking havoc on everyday life (as at April 2020). With the unsettled economy and some forced self-isolation and quarantines in Australia, the workforce is looking a little unsteady as well, at that in some cases may be a massive understatement with Hospitality and tourism pretty much disseminated.
Know this, the workplace laws are still in place and unfair dismissals that are related to the pandemic will be treated like any other dismissal case. There have been updates and advice posted on the Australian Fair Work Commission website – it is strongly advised that all employers make themselves familiar with these. At present, the gist of it is that there are procedures in the works for businesses that are impacted by the pandemic.
It has been encouraged that employers and members of the workforce work together to maintain business continuity. The goal is for beneficial and workable solutions to be found for each workplace and circumstance. It is in times like this that treating your teams correctly could be the difference in how you come out into what Fresh HR Insights has coined “the new world of working”.
The current options for employees that aren’t able to work include paid leave and unpaid leave. Updates on this can be found on the official website along with other options and scenarios for workers and businesses alike. Included in the listings are entities that are eligible for government financial support. Accountants are all over the JobKeepers so it is advised that you make sure you have made contact with them and
Sham Redundancy (not a genuine redundancy)
This is a pretty common sight within the category of unfair dismissals. Sometimes an employer will terminate a member of their workforce for alleged ‘redundancy’. The truth of the matter is usually uncovered upon investigation.
The way that this sham is revealed as such is when:
- The worker could have offered assistance, retrenched, in another area of the company;
- The vacated position needs to be filled by another therefore the work was still there;
- Or the company failed to consult with the worker before deciding to make their position redundant.
It is STRONGLY recommended that an employer always gets advice when looking at redundancy. All awards and registered agreements have a consultation process for when there are major changes to the workplace, such as redundancies. The consultation process sets out the things the employer needs to do when they decide to make changes to the business that are likely to result in redundancies.
A failure to comply with those consultation obligations means that an employer:
- will not be able to establish that a person’s dismissal was a case of “genuine redundancy” under s389(1)(b) of the Fair Work Act (FW Act) and therefore is at risk of an unfair dismissal claim;
- may be required to participate in a dispute settlement procedure under the enterprise agreement if this is activated by a union/employees; and/or
- may be ordered by a Court to pay penalties and/or compensation for breach of an award/agreement (in addition, interim orders may be made including temporarily preventing the employer from implementing any redundancies).
Plain and simple, it is unlawful to terminate a worker if there is any hint that it is on discriminatory grounds. This includes but is not limited to an employee’s sex, age, familial responsibilities, nationality, political opinion, religion, marital status, sexual orientation or race.
Thankfully this is not one of the top reasons for unfair dismissal cases these days, but these cases do still occur and it’s crucial that, as a company, any dismissal is not construed as having a discriminatory basis.
It’s not discrimination if the actions:
- are allowed under state or federal anti-discrimination law
- are taken against an employee of a religious institution to avoid harming the organisation’s religious beliefs
- do not relate to one of the protected attributes, or
- relate to the necessary requirements of the job.
When A Workplace Right Was Exercised
Believe it or not, simply exercising one’s right has gotten employees sacked in the past. It is against workplace laws for anyone to be dismissed for intending to or exercising a workplace right. This would be a breach of the general protection’s provisions of the Fair Work Act of 2009.
Included within the category of workplace rights is a rightful benefit claim, participating in procedures, filing a complaint – the list goes on. General Protections claims are often difficult to navigate and can have costly implications.
The general protections have been introduced to:
- protect workplace rights
- protect freedom of association
- provide protection from workplace discrimination, and
- provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.
A person (such as an employer), must not take any ‘adverse action’ against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.
Adverse actions that can be taken against an employee or potential employee might include:
- dismissing them
- not giving them their legal entitlements
- changing their job to their disadvantage
- treating them differently than others
- not hiring them
- offering them different (and unfair) terms and conditions, compared to other employees.
Terminations Without Due Process
If an employer does not follow the proper dismissal process (be procedurally unfair), the terminated employee is at liberty to file for unfair dismissal. As a business, this is where knowing and exercising the correct disciplinary process is crucial. We have seen many a case where a dismissal was deemed to have been a fair reason BUT the process was deemed to be harsh and therefore the employee was awarded compensation. Don’t let this happen to you – a simple call or email to our team can save you costs that don’t need to be incurred.
All workers should be given the chance to improve before dismissal. If it comes to be that this opportunity was not offered to the dismissed employee, it can serve as grounds for an unfair dismissal case.
Here are a few circumstances that are covered by unfair dismissal laws:
- The proper training was not provided for the position.
- The poor performance was out of the employee’s hands.
- The worker has a good explanation for not performing according to expectations.
- There was no warning that performance needed to improve.
- It was not explained that performance was lackluster.
This is just the start, there are so many cases out there where the proper procedures were not followed. This is not just bad for employees, as if it is proven that the employee termination was unfair, it does not reflect well on the company.
Check out Fresh HR Insights for HR support services and consultancies that you might not even realise you need.
The human resources department is often the heart of a company. Did you know that they can also be added to your business virtually?
What Is Virtual HR?
Virtual Human Resources refers to the process of providing a range of services within this department through various technological channels. A virtual HR department uses technology to connect HR services with the workforce rather than having a physical presence within the business’ premises.
The way that this is achieved is through self-service platforms where workers provide data directly into the channels thereby avoiding having to reach out to a third party for the service. The demand for Virtual HR has increased as more businesses seek to reduce costs in their HR departments. Additionally, virtual HR has been found to offer users a competitive edge and a reduced risk compared to traditional HR outsourcing. The main virtual HR functions that exist include virtual training, onboarding and recruiting. Virtual HR can be offered in packages, as software and more.
COVID-19 has catapulted the need as well as the technology that allows for virtual HR. From ZOOM meetings including disciplinaries and performance management to team meetings and get togethers. What has been a challenging time for all not just on the Gold Coast but Australia wide has actually shown immense innovation in what we can actually do virtually.
Advantages Of Virtual HR
At present, whether you are using outsourced experts or an in-house team for HR services, the fact is that good HR is a necessity in any business. Human resources professionals are the lifeblood of the company because their job is to ensure that the business gets the most out of its employees. Unfortunately, the costs of hiring or running a good HR team is often pretty high. Here are five of the top advantages of using virtual HR.
- Integrated HR
For some, HR services are more of an afterthought or “as needed” practices, only being brought in when there’s an issue. This is somewhat limiting as ongoing practices and procedures are often integral to smooth sailing in a business. For instance, let’s say that concerns aren’t being addressed on a regular basis, your workforce may end up feeling demotivated and unsupported. The goal is, as always, to keep productivity steady and the bottom line in mind.
This is where virtual HR would come in. HR functions and services can be better integrated across the board. This would allow for an extended reach and ensure higher efficiency in integral functions throughout the entire workforce of the business.
- Ongoing Performance Reviews
Instead of the once-a-year meeting companies tend to have on performance reviews, virtual HR can monitor workforce performance continuously. This will allow you to collect data on a larger scale and in turn make it easier to identify bugs as they happen. This can include employee feedback and correspondence which, if done right, will make your workforce feel valued, engaged and assisted.
- Improved Efficiency
Virtual HR allows companies to do more with less. This practice promotes self-service among employees. Other HR services like payroll are done with automated ease which eliminates human error and the expense of company resources.
- Overhead Reduction
Another top advantage that the use of virtual HR brings is the reduction of overhead costs. Thanks to virtual HR, having a physical human resources department filled to the brim with employees and other costs is not a necessity. The integral functions and practices of HR can be present in a company without the “middleman”.
Imagine you have a chain of business locations, having a physical HR presence in each will prove taxing on your company resources. It’s possible to still have an efficient workforce and only one HR department running the show thanks to virtual HR. You also do not have to pay superannuation (in most cases) on the cost of the virtual HR team
- Being Everywhere At Once
It is no longer a necessity to be physically present in the world of business. This might have seemed like a strange made-up concept a few years ago but it is entirely possible to achieve an entire department’s tasks without having a set of HR offices in your company building. Coupled with the fact that your reach is actually extended through the use of virtual software means that physical location is no longer a hindrance and HR services can be accessed anywhere with just a few clicks of a mouse.
If you’re looking to streamline your processes, check out Fresh HR Insights for HR support services and packages that you might not even realize you need! Did you know that we offer a system of hours as opposed to a monthly fee.
We also do not run a call center – you get direct access to an employment relations expert whenever you need assistance. We help you resolve HR/ ER issues & put a plan in place to avoid future problems. The hours in our HR/ER support bundles include phone, emails, forms, correspondence letters, advice, policies, procedures and onsite meetings. Find out more HERE https://www.freshhrinsights.com.au/hr-er-advice-line/
It’s true that there are workplace policies and procedures within a company’s employee handbook, however, they are not one and the same. Employee handbooks are also designed with a particular audience in mind whereas the policies and procedures manual is applicable company-wide.
What’s The Difference?
As mentioned, an employee handbook is written with employees as the intended audience. A handbook is a vehicle for getting employees of a workplace familiar with company policies, procedures, and benefits. This is also where workers can learn about general expectations that the company has which includes behaviour which is considered acceptable or not. This is also where disciplinary measures are covered.
Now, if we’re just talking about workplace policies and procedures, this often refers to a comprehensive manual that covers every aspect of the business policy in detail. This includes the procedures in place for following those policies and the relevant paperwork. This manual is used mainly by management in order to gauge a deeper understanding of a desired process. This text is helpful in many ways, one of which is how it references federal and state laws for each of the policies in place. This is helpful when enforcement is needed.
A typical employee handbook consists of general information about the business, a welcome cover letter from the owner, CEO, or president, the company vision, mission, values, purpose, and broad strategic goals. Additionally, the company will typically include a reiteration of its commitment to employees and any agreements that are made in its name.
Attendance expectations defined exempt and nonexempt employment statuses, severe weather protocol, use of company property, and more still.
Lastly, another important inclusion in these handbooks is workplace bullying, Workplace Health and Safety, Family and Domestic Violence Policy, Leave, Unpaid Leave and one that has become very important in the current 2020 pandemic – is the Epidemic/Pandemic policy and procedure. Other important factors here include additional terms and conditions of employment, paid time off, and so on.
If you’re in need of good workplace policies and procedures, check out Fresh HR Insights for HR support services and consultancies that you might not even realise you need.
Something that we can all agree on, is that it’s no fun being the new kid. Stepping into a new place filled with new faces and procedures is pretty scary and the last thing that you’d want is to compromise a brand-new hire. Learn HR solutions for recruitment. The good news is that if you’re within a position of power there is something that you can do to help welcome your new recruits. If you don’t have a full-on starter kit, here is how you can improve:
- Show That You’ve Been Expecting Them
The first step to making anyone feel welcome in a new space is showing that you’ve been expecting them and are happy to have them there. One way to do this would be sending out a memo that someone new will be joining a department and to have an immediate superior meet with them first thing.
An example may be;
Good Morning Team,
Please be aware we have new starter coming on board. Please all extend a warm welcome to <Employee name> on <her/his> first day and provide any support required for his/her future success within the team.
NAME: <Employee first and last name>
START DATE: <date starting>
JOB TITLE: <title of role>
Please ensure that everything is ready for <employee first name> on day one. This includes computer, workstation, stationery, paper, computers linked to printers and email addresses set up.
Please all make <her/him> feel welcome to the team.
Any questions please let me know.
- Give Them A Tour
Next, showing a new hire around is a great way to introduce them to colleagues, the facilities, and so on. This takes care of a lot of uncertainty and will make it less likely that they get lost searching for the restroom.
- Provide Enough On-The-Job Training
This is a given but what really cements the training process is not overlooking things that a seasoned employee might take for granted. Try to be as thorough and basic as possible.
- Ease Them In With Smaller Manageable Tasks
Letting a new hire settle in will go a long way as having a stressed out, unhappy employee is not good for your productivity or workforce.
- Assign A Mentor
Help clear some confusion indirectly by introducing the new hire to someone that they can consider a mentor. This will result in a speedier learning process and the complicated specifics will be dealt with.
- Square Off The Paperwork ASAP
This is by far the least exciting step but having the forms and documents signed and sealed is best for everyone. Sending through the forms even before their first day will help move things along faster.
- Request Feedback
Sitting down with them at the end of their first day is great for morale as it shows that you care. There is also a learning possibility here as you can find out how sound your introduction procedure is.
If you’re looking to improve your HR policies and procedures, Fresh HR Solutions is the perfect outsourced agent that can shape up the way you recruit, hire, and retain your workforce.
If you are happy to go it alone then jump on over and grab a copy of our Manual – Induction – WOW your new Team Member. We have for the months of March – May 2020 reduced this by 70% to $149 inc GST. PLUS, you get as part of this manual a Bonus on Retaining Employees.
Grab it HERE
If you’re experiencing an issue at work, who is it that you go to for help? The answer to this is a no-brainer, of course, you seek out the human resource department. The problem, however, is if the company that you work for does not have an HR department or the department simply is not big enough to assist with every issue inside the office. There is another answer to this dilemma, this is where outside support can be your saving grace.
Human Resource Help
These companies act as the go-between and can bridge the gap between management and employees. They could even help with employee-to-employee discrepancies. As a sort of ‘middle-person’, all parties can be supported and represented fairly in the bid for achieving a productive and respectable workspace.
Here are some reasons why having a HR team that knows what they’re doing so important:
Wages And Salaries
Are you paying your employees the right amount in reference to the work done? Take a look at this high-profile case where they really could have used the help of a HR team and their prevention procedures:
A&K Property Services Pty Ltd, which operated two Sushi 79 stores in the Sunshine Coast and Ipswich respectively was hit with penalties of over $125,000 due to not keeping proper wage records. This also resulted in the company not issuing payslips to employees. Any HR team member would have seen this coming from a mile away.
There are a number of possible happenings that will require procedures to be in place such as investigations, disciplinaries and terminations. When it comes to times like these, a HR team will have the rules and procedure in place to protect the business and employees.
Here is a real-life case that highlights the importance of this:
In the case of Anderson v Thiess Pty Ltd  FWC 6568, Mr. Anderson had been dismissed for sending an offensive work email that targeted persons of the Muslim faith. Even though this act was a breach of the company’s policies and risked damages to the company, Anderson was awarded $28,000 in compensation on the grounds that the dismissal was unreasonable and harsh. The issues here were a combination of Anderson’s advanced age, only a verbal warning was issued when this had happened previously, and sufficient time was not given for Anderson to accept his mistake and apologise.
Having the correct processes in place is a must. There are numerous procedures that the right HR team can put in place to protect you and your employees. For more information about what passes for a good HR team, check out Fresh HR Insights, or better yet, get in touch with them.
When it comes to improving workplace performance, there is a fine line between improvement and doing more damage than good. In other words, ineffective performance management can decrease the level of performance in the workplace and create a level of distrust. Here are a few easy steps to take to manage underperformance and improve workplace performance.
The Only Performance Improvement Plans You’ll Need
Here is a simple step-by-step blueprint for managing underperformance in any business:
- Find The Problem
Before you can put any improvement plans in place, there needs to be an understanding as to why these plans are necessary in the first place.
- Assess And Analyse
Next, the employer will need to determine:
- the seriousness of the problem
- the amount of time that the problem has been a problem
- the gap between the expected and the reality, and
- Look also at any mitigating circumstances or things that may be happening outside of the workplace.
After identifying and assessing the problem, the employer should arrange a meeting to discuss the problem. Adequate warning of the meeting needs to be given so that the employee can prepare and they need to be told that in this meeting they are permitted to bring along a support person.
- Discuss The Problem
Once in a private and comfortable environment, the meeting can take place between employee and employer. The conversation should begin by explaining the problem clearly. The aim of the meeting is for the employee to understand:
- the problem
- why it exists
- the impact it has on the workplace, and
- the reason for concern.
The outcomes that the employer wishes to achieve from the meeting should also be stated.
- Come Up With A Solution
It is important that a solution be jointly devised where possible. If the employee contributes to the solution, they will more likely accept and act on it.
- Sit Back And Watch
The final step is monitoring the employee’s performance. Encouragement and feedback is important here. A follow-up meeting is also strongly recommended. You need to monitor the behaviours and give the employee opportunities and support to improve. You cant do this if you do not follow up.
Performance improvement plans should always come with strict guidelines so that cases like Mr. Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears  FWC 2906 do not happen. In this case, an experienced and long-serving employee, Mr. Blagojevic, was involved in an application for orders to prevent workplace bullying. Blagojevic was placed in a Performance Improvement Plan (PIP) and this has a devastating effect on the employee and his mental health.
Something to keep in mind here, there is nothing wrong with managing performance among your employees, however, there are measures that need to be in place to make sure that no lines are crossed.
- ensure all performance and disciplinary matters are documented;
- provide clear instructions, training and information to employees particularly with respect to the scope of their role and expected standards; and
- ensure that if management action is taken, it is justified and conducted in accordance with any established policies and procedures.
For more information on how to improve and manage workplace performance, check out the packages that Fresh HR has to offer. As experts in this area, they will know just what to do.