Find below a collection of questions and answers relating to employment law for employers.

Discipline/Dismissals:

I have an employee who takes long breaks and often does not show up to work – is there anything I can do?

Yes, apply Procedural Fairness, even if you have fewer than one hundred employees.

How do I select employees for redundancy?

An employer is required to treat an employee fairly and lawfully. For example, the employer can not unlawfully single out an employee for redundancy in an attempt to avoid performance reviews of an employee or to avoid a claim of unfair dismissal by the employee.

Under the WorkChoices legislation, an employer is exempt from any action where they terminate an employee for "operational reasons". This does not remove the obligation to the "implied term' of Procedural Fairness. In addition, if the employer says the termination was for operational reasons it is possible for the employee to argue that this was a false reason and it was really some other reason. It is therefore essential to be objective and “open” with employees who are about to be retrenched.

Bullying/Harassment:

I want to make sure I have a safe work environment for my staff - what can I do?

An unambiguous, accessible and easy to read policy should be in place. Every employee should be aware and "trained".

I don't want to be sued if one of my employees harasses another - how can I protect myself?

Training on policies reduces this almost to zero.

WorkChoices:

I don't understand the new work choices legislation and don't know what to tell my staff – where can I get help?

Please go to the WorkChoices - How Does it Impact On My Business article and read this easy to follow guide, which includes a check list for more information.

Do I have to do anything when WorkChoices starts?

With the possible exception of annual leave and public holidays, if your
employees are not award or agreement covered now, and you have little dealing
with the Industrial Relations System, then that will not change. For a large proportion
of the workforce, the legislation will have only passing impact.

For further information, go to WorkChoices - How Does it Impact On My Business article.

After WorkChoices, do I still have to comply with NSW Awards?

Yes, they automatically become Federal Documents for a period of three years.

Terms and Conditions:

I want to produce a suite of contracts for the executives and remaining staff – where can I go?

As a matter of fact, we are able to help.

Can I look at my employees emails?

Yes, but only if (see the NSW Workplace Surveillance Act and Issue One of Newsletter, in the News section of the website) you reach an agreement with the employees beforehand and warn them well and truly in advance.

Can I monitor my employees Internet usage?

See the New South Wales Workplace Surveillance Act and Issue One of the McArdle Legal Newsletter (which is included in the News Section of the website for further information about this). In short, yes, an employer can monitor the employee's internet usage. However, an agreement much be reached beforehand with the employees. Additionally, the employees have to warned in advance.

Is a “discretionary” bonus scheme really discretionary?

All discretions have to be exercised with equity and good conscience. The Courts emphasise responsibility where power is to be exercised. It is most unwise to simply “decide” not to pay a discretionary bonus without good reason.

Commercial Litigation:

The other party to my contract has breached it and I have not been paid for goods/services – what can I do?

The Court will award damages for breach of contract, providing it can be proven. This is a fundamental role of the Common Law.