8 common alternative facts about employment law

 When it comes to hiring and firing staff, a lot of what employers and employees believe seems to be based on myth, hearsay or out-of-date information. Some of these "facts" are very often wrong.

To help you cut through the noise and know where you stand, we set the record straight on eight of the most common employment law alternative facts.

'Fact' 1: An employee earning more than the high-income threshold can’t bring an unfair dismissal claim.

The reality: The high-income threshold - currently $138,900 exclusive of super - can be overridden by the terms of a modern Award or enterprise agreement. So, if an employee is entitled to bring an unfair dismissal claim under one of these instruments, it may not matter what they earn. They can still bring a claim.

'Fact' 2: Once an employee has for worked six months they’re out of probation and can bring an unfair dismissal claim

The reality: A probationary period gives both an employer and employee the chance to assess each other - and the role - to make sure they’re a good long-term fit. Under the Fair Work Act, all employees serve the first six months effectively on probation - although it’s called a qualifying period. During the qualifying period, employees can’t bring an unfair dismissal claim; and for employees of smaller businesses - with less than 15 staff - this qualifying period lasts 12 months, regardless of what their employment contract says about their probation period. So small business employees can only usually bring an unfair dismissal claim after they’ve been employed for a full year.

'Fact' 3: An employee can’t bring a workers' comp or bullying claim if they're being performance managed

The reality: While an employee can’t bring a claim over “reasonable management action conducted in a reasonable manner”, bullying behaviour doesn’t fit into this category because it’s not reasonable. Similarly, a worker who ends up suffering from anxiety or depression after a bad performance review may still succeed with a claim if they can show their employer didn’t act appropriately.

The important thing here is that, even if an employer is legitimately managing someone’s performance, they need to do it in a reasonable manner. If you need help determining what constitutes “reasonable”, get in touch.

'Fact' 4: Employment contracts need to be in writing, and verbal agreements don’t count

The reality: An employment contract can be verbal, in writing, or a mix of both.

Here’s a tip though, the less that’s written down, the messier - and more expensive - any potential claim is likely to get. So always put it in writing where you can.

'Fact' 5: Employers always have to accept an employee’s medical certificate

The reality: In some circumstances, employers are entitled to question an employee’s medical evidence, so long as they do it reasonably. This may include asking questions of the employee’s treating doctor or even requesting an independent medical examination.

'Fact' 6: Employers need to give employees three warnings before dismissing them

The reality: Every case is different. A lot depends on the employee’s conduct and the circumstances surrounding it. For instance, if a worker engages in serious misconduct they can often be dismissed summarily, or without any notice whatsoever. The most important thing here is to follow your internal policies, and ensure your actions are "reasonable". If you don’t have any internal policies, call us now.

'Fact' 7: Employers no longer have to give notice of termination in writing

The reality: Yes, they still do, although what constitutes notice in writing is evolving. For instance, in one recent case the Fair Work Commission found that an employer had satisfied this requirement when it let an employee know they were sacked by sending an SMS to their phone.

We’d never advise an employer to take it to that extreme (and of course in these situations context can be crucial). But what’s clear is that "notice in writing" no longer necessarily means a signed and sealed letter.

'Fact' 8: Employers need to give written warnings

The reality: Although notice of the termination needs to be in writing, strictly speaking, the warnings leading up to the dismissal don’t have to be. However, we will always recommend that a written warning is given. . Most importantly, they’re much better as evidence if the matter ever ends up in a court or tribunal. They also mean that the employee can have no doubts about what your expectations are. Ideally, have the conversation (and keep a file note), but also get the warning down in writing and give it to the employee as soon as possible after your conversation.

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