Transcript Slide 1

Managing your Employees
-protecting your business
Presentation by Master Grocers Australia
Workplace Relations
Managing your Employees
Introduction
Managing Employees and protecting your
business
Objectives of the seminar:
 Achieve an harmonious workplace
 Avoid workplace problems
 Provide a basic understanding of the law
 Provide guidance on dealing with problems promptly
 Provide solutions through handling problems
correctly
Managing your Employees
General Retail Industry Award
- Latest news and updates on the GRA and
how to address some of the award issues
that have arisen in 2011
Managing your Employees
Avoiding workplace problems- new Employeesthe appointment
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Choose your employees carefully- describe the job
and duties
Avoid any discriminatory remarks during the
interview
Check references
Provide new employee with your award or
agreement
Advise employee of status (ft, pt, casual)
Give a letter of appointment
Provide Employee Information Statement
Conduct police check (if required)
Managing your Employees
Avoiding Workplace problems -New EmployeesInduction
Provide the employee with
 OHS advice and instruction
 Your workplace policies( N.B. a statement in a
handbook may be insufficient to afford full protection
to the business)
 Ensure the policies are understood and signed
 Refer employee to the location of industrial
instrument for the business
 If you do a full induction make sure the employee is
paid for that time.
Managing your Employees
Avoiding Workplace problems-Allow learning
time
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Provide guidance
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Make sure that the supervisor provides assistance in
a constructive manner
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Deal with any problems quickly
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Give a chance for improvement
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take action within the “initial employment
period”
Managing your Employees
What is the “initial employment period”?
Small Business-a period of twelve months
Other businesses-six months
A small business is one that has fewer than 15 employees
- this includes all related businesses.
The Fair Work Act does not provide for a 3 months
probationary period- do not include a probationary period
in your offer of employment
Managing your Employees
Termination during the initial employment
period
An employer may terminate the employment during
this period without fear of an unfair dismissal .
However, the employer should provide a reason for the
termination
e.g. unsatisfactory performance and be in a position to
state the reasons for the poor work performancethis may be lateness for work or failure to achieve
good customer service
Managing your employees
Procedural fairness
Counselling an employee involves following a correct
procedure
 Allow a support person to be present
 Have your own witness
 Identify causes of concern
 Ask for the employee’s explanations
 Suggest ways for improvement
 Be prepared to listen and keep an open mind
 Do not prepare for a dismissal before listening to the
employee’s explanation
 Provide a written warning if needed.
Managing your Employees
The Law and Unfair dismissal
The Fair Work Act states that a termination of
employment must not be
“harsh, unjust or unreasonable”
In an application for “unfair dismissal”
Fair Work Australia (FWA) will consider:
 Was the termination fair?
 Did the employer have a valid reason?
 Could the matter have been handled differently?
Managing your Employees
A dismissal may “appear” to fulfill all the
requirements but what is meant by “harsh?”
FWA often takes a very broad view of the term:
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Did the employer consider all the facts
Did the employer consider the consequences?
Should the employer have looked beyond the
immediate employment?
Managing your Employees
1. Summary dismissal
Limited circumstances
 Theft
 Drugs
 Intoxication
 Fighting
2. Termination with notice
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The appropriate period of notice must be given
Dismissal only after warning process.
Note -three warnings not essential – need to asses
the situation
Managing your Employees
Workplace Theft
Handle with care!
Be sure of your facts- check cameras and
with any staff who may have been
involved
Talk to police if necessary
Follow procedural fairness rules
Managing your Employees
Drugs and Alcohol
Non prescription drugs or drinking alcohol
are not permissible at work
The retail industry is not a high risk industry
and drugs and alcohol testing are not
permissible.
Any problems require proof before
termination
Managing your Employees
Fighting in the Workplace
Not a common occurrence in the retail industrybut it does happen and cannot be tolerated.
In most cases it will require
that both parties are
dismissed
Managing your Employees
General Misconduct
Poor performance
 Probably the most difficult area to address
 Do not let the problem linger
 Address the issues openly and with an
offer of assistance
 Provide a letter of advice (warning)
 Follow up after a period of proposed
improvement
Managing your Employees
Lateness
Employees should not be allowed to be
consistently late for work- address the issue
Swearing
What is permissible?
Make your standards clear from the outset
Denigrating the Employer
Emails and face book comments should not be
tolerated. The employer should advise an
employee immediately if adverse comments
are made.
Managing your Employees
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Beyond the workplace location
Is the employee still under a duty to the
employer? How far does the duty extend?
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Abandonment of Employment
>Try to contact the employee by phone
> send a letter to last known address by
registered post- wait a week
> send a second letter- wait 5 days from date of
letter – then terminate- be patient
Managing your Employees
Constant absences from work
If an employee is sick or needs carer’s leave
then personal leave is available.
Annual leave may be used
If sickness is continuous- request a medical at
your expense. Note that 3 months with a
certificate does permit termination.
Managing your Employees
Demotion
Any removal from a current position to a lesser
position may constitute a demotion
However, it is not a demotion if there is no
“significant” reduction in duties or salary
Managing your Employees
Bullying
This may be a OHS issue as well as an
industrial problem
 Verbal abuse
 Gossiping
 Insults and open criticism
 Exclusion from a group
contd/
Managing your Employees
Procedure
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Discuss the issue with the “alleged victim”
to establish the problem
Speak to the “alleged perpetrator”
Be open and frank and request the persons
actions
Discuss your policy and seek a solution to
the problem
Discuss with the “victim”
If no solution- then follow a warning system
Managing your Employees
Adverse Actions
An alleged breach of an employee’s workplace
rights may amount to an adverse action
claim
Actions in this area of the law will
increase in time
Why?
60 days for the application
Reverse onus of proof
Can be taken straight to a Magistrates Court
Managing your Employees
An “adverse action” may include
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an act of discrimination
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an action against a trade union representative
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a termination while on sick leave
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not providing a valid reason for dismissal
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engaging in sham contracting
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depriving an employee of their workplace rights
Managing your Employees
Adverse actions contd/
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A conciliation conference may be heard in
FWA but it can proceed straight to the
Magistrates Court
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Damages are unlimited
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Fines may be imposed also up to $33000 per
offence
Managing your Employees
Sexual Harassment
There are State and Federal Laws that
protest against sexual harassment at
work
Sexual harassment is any conduct that is
Unwelcome
 Sexual in nature
Reasonable that a person would feel
humiliated offended or intimidated
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Managing your Employees
Vicarious liability
An employer is liable for the actions of employees to a third party.
1.If Sally, a manager, makes unwelcome sexual comments to Billy
and another employee overhears and is offended then the
employer is liable for Sally’s actions.
2. Adrian is the store owner. Tom harasses Jenny who then
complains to Joe the manager. Joe then has a “word” to Tom
but nothing is done to resolve the matter. Adrian and Joe are
both vicariously liable for the actions of Tom.
The employer may be protected if all reasonable actions have
been taken to prevent an offence from occurring.
Managing your Employees
What does an employer need to do?
Have a policy in place
 Have a procedure for reporting a complaint
 Make sure the employee knows the manager to
whom a complaint can be made
 Ensure privacy and confidentiality throughout a
complaint process
Even the above may not be enough to ensure full
protection
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What more can be done?
Managing your Employees
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Establish a culture of an harassment free
workplace
Reinforce your policy at staff meetings
Provide training on no sexual harassment
Display posters against sexual harassment
Provide complete solutions if harassment
occurs
Solutions may include termination of
employment
Managing your Employees
Dealing with a complaint
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Discuss the problems
Be supportive – and advise the employee that you
will need to discuss with the alleged harasser
What does the employee see as a solution- if
proven?
Do not accuse the alleged harasser- put the
allegations forward- possibly the person will deny
allegations or even be shocked.
Explain there is a need to understand the meaning
of sexual harassment
Solution – Termination? Apology? Demotion?
Managing your Employees
Recent publicity on sexual harassment
David Jones case
Illustrates the need to be vigilant in ensuring
that all employees fully understand the
meaning of sexual harassment and the
implications of ignoring the problem
Managing your Employees
Managing the workplace is not easy-
if you have any problems-
call MGA for assistance
General Retail Industry Award
General Retail Industry Award Update
1. Leave Loading- now payable on termination or
resignation
2. Overtime and penalties Payable to permanent staff in excess of 38 hours
 Payable to permanent outside ordinary hours
 Not payable to casuals in any of the above
circumstances
General Retail Industry Award
3. Breaks between Work periodsThere must be 12 hours between work periods or not
less than 10 hours by written agreement.
4. Casual Conversion-does not apply to the General
Retail Industry award
5. Night Fill employees- to qualify as a Night filler
an employee must work within the span of hours and
complete the shift on the same day of commencing
the shift