In talking with many managers it is interesting to discover how many hold beliefs around a variety of employment issues in Australia they think are fact, that are actually myths. These range from giving 3 warnings when terminating an employee to believing casuals are not entitled to any paid leave.
We lift the lid on 5 common myths here.
Myth – Employers have to give employees 3 warnings before they fire them
Fact – False. There is no legal requirement in Australia that you have to give an employee 3 warnings. However, if an employee makes an unfair dismissal claim, the Fair Work Commission may consider whether an employee was given a chance to fix their behaviour or performance when deciding whether a termination is fair or unfair.
Warnings are often used for poor performance and as a way to let employees know that they have an opportunity to fix the problem. Managing underperformance is important in any business to make sure employees are doing what you expect them to do. If underperformance is not managed well, there can be negative consequences for the employer, employee and the rest of the workplace. So given it is a not a legal requirement in Australia, it is up to the employer, or representative, to consider the risk. But beware, you could also face high consequences if taken to court.
Myth – It’s OK to trial some one in a job for a short period, e.g, one or two days, unpaid.
Fact – This practice is rampant in many industries in Australia where there is a high entry popularity. If some one is working for your business for any period of time you must pay them wages. As a minimum, casuals are entitled to 4 hours payment in many awards as a minimum. They are also entitled to conditions covered by Australia’s National Employment Standards, any relevant award or enterprise agreement. Check all conditions before making any assumptions.
Myth – Casuals are not entitled to leave, and get a loading to account for this.
Fact – Casuals do get a loading for their status as casuals, however there are various types of leave, and some paid, that they are entitled to. In Australia these include 2 days unpaid carers leave, and 2 days unpaid compassionate leave, per occasion. Community service leave and 2 days pre-adoption leave. Some casuals may be entitled to unpaid parental leave if they have worked for same employer consistently for 12 months or more. Long service leave and paid jury service leave are also applicable to some casuals under state legislation.
Myth – Employees don’t need to provide a medical certificate for sick days unless it is over 2 days consecutive duration.
Fact – Employers are entitled to ask an employee for a medical certificate for any period of personal leave, even it is only one day, unless the relevant award or employment contract says otherwise. If an employee does not provide notice they are on sick leave or a requested medical certificate from a registered medical physician, they are not entitled for payment for the time off.
Myth – Casual’s can’t apply for unfair dismissal.
Fact – They can. If a casual has worked systematically and regularly for the same employer for more than 12 months, with a reasonable expectation of ongoing work. (i.e there was no major change, or restructure to their work or the business) the casual can lodge an unfair dismissal claim. The Fair Work Commission can decide if the dismissal was harsh, unjust or unreasonable, or not a case of genuine redundancy.
Source: Fair Work Ombudsman – www.fairwork.gov.au/media-centre. Content on this site is not to be considered legal advice and employers should get advice from a legal practitioner when in doubt.
Anne-Marie Orrock is a leading Human Resources expert helping companies raise the level of sophistication of their HR practice and strategy through her consulting organisation Corporate Canary HR. Anne-Marie is regularly sought out for expert comment in the media on human resources, recruitment, leadership, and has featured in BOSS Magazine, Sydney Morning Herald, HR Monthly, HRD Magazine, Management Today, Dynamic Business, ELLE, Cosmopolitain, CLEO, Marie Claire, NETT#, My Business, Sun Herald. She is a consultant writer for online sites including School Hours and contributing author to the book, ‘Mind Your Own Business’ published by Mithra Publishing, in June 2012 in the United Kingdom. Anne-Marie has worked with a range of companies to develop their HR strategy including blue chip organisations such as ANZ Bank, NZI Insurance, Deutsche Bank, 3M, Symantec, PeopleSoft, Citrix Systems, Ella Bache, and NASDAQ.