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Inspire Success

Providing hints, tips and ideas that help you maintain high performing workplaces that are customer focussed and free of conflict

When is a direction "lawful and reasonable"?

Rae Phillips - Monday, August 31, 2015
Employers that require information about an employee's medical condition can direct them to attend a medical examination, but must take care to ensure the direction is "lawful and reasonable" an employment lawyer warns.

Employers often receive medical certificates that leave prolonged absences unexplained, and are useless when it comes to determining an employee's fitness for work, says Shannon Chapman, a senior associate at Ashurst.

Ideally, simply requesting the information they need from the employee will result in voluntary provision of further details of their condition, how long they're likely to be off work, and when they're likely to return.

But there are times when that doesn't work. 

  1. If requests for further information fail, an employer's first option is to request that the employee attend a medical examination, and the employee can consent to do so. 
  2. The second option is to rely on an express right in the employee's contract of employment, but express rights clauses within contracts are not all that common. 
  3. A third and also rare possibility is to rely on a legislative requirement for the employee to be assessed, but in many cases, the only option employers have is to provide "a lawful and reasonable direction" that the employee attend a medical examination. 

"If the direction is in fact lawful and reasonable, then the employee has a duty to comply... and failure to do so can result in various consequences, including in some circumstances termination of employment," Chapman says.

"The key issue is of course whether or not the direction is lawful and reasonable", she says, and this will depend on the circumstances.

Four factors that will weigh in an employer's favour include when:

  1. the employer is dealing with a lengthy unexplained absence for which no medical certificates at all have been provided;
  2. medical certificates are vague or lacking necessary details – "You may not even know exactly what is wrong with the employee, what their restrictions are [and] what they can and can't do";
  3. the employer has received zero or insufficient information about the employee's prognosis, for example to determine whether might be able to perform restricted duties; and
  4. the medical evidence is conflicting. "Sometimes an employee will present medical evidence which says that they're unfit for work and at the same time they might present some evidence that says they're fit for work with particular restrictions, and when you've got a situation like that it's particularly difficult for you to understand and know what the true position actually is."

Lessons from case law

Circumstances where an employee's absence affects the employer's ability to plan and manage its business can also support a direction to attend an examination, Chapman says.

"If the person sits within a key work group and you need to be able to assess whether you've got that key skill going forward... it might also be reasonable."

In the case of AIPA v Qantas, for example, the employer threatened to discipline a worker for failing to provide information about his prognosis and return to work plans.

Hearing his adverse action claim, the Federal Court found that Qantas did not intend to interfere with the employee's workplace rights, but requested the information to enable it to plan its roster and staffing levels.

Further, the Court ruled that when it is necessary for employers to meet their work health and safety obligations, they have an implied right to require employees to provide medical evidence to confirm they are fit for work. They can also require employees to attend a medical examination, provided the request is on reasonable terms, to confirm their fitness.

It said the direction given to the employee fell reasonably within the scope of his contract of service and was not unlawful.

A caution on psychiatric exams

Chapman notes that in some cases where a worker has a physical injury, employers have been known to direct them to attend a psychiatric examination, as a way to get around the physical restrictions. "I'd recommend exercising some extreme caution if you're thinking about doing that," she warns.

"There have been cases where employers have relied on evidence to that effect to then dismiss someone, and that decision has then been overturned.

"If that occurs, it's quite likely that decision would be challenged unless you've got some reasonable and legitimate basis to say that you require the employee to be assessed by a psychologist or psychiatrist."

Is this something that could be an issue at your place? Inspire Success is all about making HR SIMPLE - no matter what size your business is. Contact Inspire Success for further information or 1300620 100.

Are you setting your new Leaders up for success?

Rae Phillips - Saturday, August 15, 2015

We all know that it is a good idea to promote from within. So you’ve promoted one of your Stars to their first leadership position but you are worried. If they don’t work out or take too long to get up to speed then all eyes will be on you! So what can you do to ensure your budding leaders get the best possible start to their new role?

A comprehensive induction program designed specifically for new leaders is what you need, and it should be in addition to your existing Induction.

What you want to happen is a change in thinking. They will go in thinking like team members and come out with the knowledge, skills and attitude they need to start being team leaders. Whether you do this as a group event or create a way that individuals can work through it alone, it is vital that you offer new leader induction when they are first appointed.

Your New Leader program should cover off these key areas:

  • the corporate strategy to help them understand the big picture
  • the leadership philosophy of the organisation
  • how their team fits into the organisation
  • the expectations for their role as a leader
  • the reporting requirements they must now meet
  • the relevant policies, procedures and practices
  • relevant, current leadership initiatives and issues
  • other leaders they will be working with
  • ways to get to know their team

This is also a good time to introduce them to senior leaders, directors or owners of the organisation. Even if they have been working with you for a while they might not have met all the people who run it. If you want them to really feel like a member of the leadership team this step is a symbolic, but important one.

We recommend that this is a formal process. You want them to know that they have support and that you recognise this is an important transition for them.

Is this something that could be an issue at your place? Inspire Success is all about making HR SIMPLE - no matter what size your business is. Contact Inspire Success for further information or 1300 620 100.

Are Family Responsibilities Playing Havoc With Workplace Productivity?

Rae Phillips - Friday, August 14, 2015
According to an Australian Bureau of Statistics survey of families, 29 per cent of employed parents had difficulty managing work and caring for children.

And more than 30% of workplace absenteeism can be attributed to family issues.

Does that sound right for your workplace?

Managing work and family life affects not only family functioning but also workplace performance. Not surprisingly, studies reveal that family responsibilities affect business productivity and competitiveness.

And of course ‘family responsibilities’ aren't isolated to just raising kids.

So your need measures in place to help your employees balance work and family. This makes life easier for them and intelligent business sense.

There are many options – and obligations – when it comes to managing staff with family responsibilities. We have outlined a few that we think are important:

  • Parental Leave Policy 
  • Flexible Working Arrangements Policy 
  • Working from Home Workplace Health and Safety Checklist

It is important to have good systems to manage these flexible arrangements. It's not just a nice idea, you are required by law to provide them.

Is this something that could be an issue at your place? Inspire Success is all about making HR SIMPLE - no matter what size your business is. Contact Inspire Success for further information or 1300 620 100

The dangers of misinterpreting doctors advice

Rae Phillips - Wednesday, August 12, 2015
An organisation unlawfully discriminated against an employee when it acted on an HR manager's misinterpretion of advice about the worker's medical condition, a court has found.

The probation and parole officer, who had worked for Corrective Services NSW since 2001, was on sick leave at various times after being diagnosed with Crohns disease in 2009 and Idiopathic Hypersomnolence in 2011, and had her duties informally adjusted.

In 2011 the department told the officer her secondment as an intelligence analyst within the the department's Corrections Intelligence Group was to end, partly because she needed regular access to a bathroom, so was unable to travel for more than 30 minutes. She was told she would be medically retired unless she was found fit to return her former position.

Hearing the worker's disability discrimination claim in the Federal Circuit Court, Judge Nick Nicholls said the "sole basis" for the decision to end her secondment was a "factually incorrect" interpretation of her medical practitioner's advice, which actually specified that she could take trips longer than 30 minutes if she was able to plan for a bathroom break along the way.

The worker's line manager, who was also an HR manager, was found to be the source of the decision.

The judge said there was no evidence that any of the worker's managers or supervisors turned their minds to the inherent requirements of the parole position and the reasonable adjustments that could be made to accommodate her.

Instead of attempting to implement her doctor's advice they continued to require her to take leave. This conduct exacerbated the worker's psychological condition and contributed to her difficulties, which included depression, suicidal thoughts, insecurity, bankruptcy and humiliation.

"On the evidence, CSNSW's conduct in relation to [the worker], and its dealings with her during this period, was characterised by various misunderstandings, assumptions without foundation, an unclear, or lack, of understanding of relevant obligations, and an attitude of presumption, if not a failure to bring an open mind to the resolution of various matters.

"An example of this latter characteristic is [a supervisor's] 'decision' as early as August 2010 that the only option... was that she should be medically retired. All of these elements amounted to CSNSW not attempting to implement reasonable adjustments to assist [the worker], as required by the [Disability Discrimination Act]."

Instead, the judge said CSNSW's primary focus was on "dealing with a person whom they saw had an illness which necessitated long, disruptive and unplanned absences from work which impacted on the efficiency of the work of the office, and impacted on other staff".

While the judge acknowledged that the employer faced some difficult issues, he said these did not exclude its "failed" responsibility to achieve a balance by providing reasonable adjustments.

These failures in making reasonable adjustments and the employer's lack of fairness in its communications with the officer were exacerbated by putting her "on extended leave and recreational leave, and without notification or consultation, sick leave... and then leave without pay."

Judge Nicholls said CSNSW "acted arbitrarily and capriciously" in this regard, with its "unexplained failure to act in good faith" also giving rise to a finding that it acted unreasonably.

He ruled that CSNSW breached the Disability Discrimination Act, the employment contract and its own published policies in treating the worker less favourably as a result of her disability.

He ordered the Department to re-credit her leave entitlements and pay compensation for loss or damage suffered, including $75,000 for pain and suffering and breach of contract, and $98,863 plus interest for loss of wages, leave entitlements, superannuation, psychologist costs and loss of promotion opportunities.

Is this something that could be an issue at your place? Inspire Success is all about making HR SIMPLE - no matter what size your business is. Contact Inspire Success for further information or 1300620 100.

Thanks to HR Daily for this article.

Are you guilty of sham contracting?

Rae Phillips - Wednesday, August 12, 2015
The misclassification of employees as contractors has become more than some dry matter of employment law lately.

First there was ABC's Four Corners investigation into the conditions for some migrant workers, which discovered that many workers who arrive in Australia are wrongly treated as contractors, underpaid and subjected to dangerous conditions.

Then there was the Victorian Government's announcement that it would establish an inquiry into labour hire and sham contracting, and the ACTU's call to establish a national register of labour hire firms.

Meanwhile, a subsidiary of Roy Morgan Research could be going all the way to the High Court of Australia to settle its contractor woes.

Linkhill was hit with a whopping $300,000 penalty for underpaying 10 contractors who a Federal Circuit Court ruled were actually employees. However, it argues that it was making generous over-award payments to the workers that would have otherwise covered employee entitlements, and that prosecutors misrepresented its arrangements.

This is all at the sharp end of sham contracting (or in Linkhill's case, the awfully expensive end). But businesses hire people to carry out work every day, from secretaries to cleaners to IT professionals – and their legal status will vary. What are the essential criteria to cover your back?

A 'sham' independent contractor arrangement is made when one or both parties know, or ought to reasonably know, that it is not a true independent contractor arrangement and you are liable under the Fair Work Act for civil penalties if you:

  • misrepresent an employment relationship as an independent contractor relationship to an employee;
  • dismiss or threaten to dismiss an employee in order to re-hire them as an independent contractor in a job that is the same (or substantially the same), or;
  • make a false statement to a current or former employee in order to influence them to perform the same work as an independent contractor.

Employee and contractor: the key distinctions

You can defend yourself against a penalty for sham contracting if you genuinely didn't know a relationship was that of employer and employee, not of independent contractor and principal.

But that gets you nowhere if a court or tribunal finds you've been reckless about facts that would have put a reasonable person in your position on notice – even if the sham contracting wasn't intentional.

So how do you avoid walking blindfolded into misrepresenting an employment relationship?

These are some of the key indicators that the Fair Work Ombudsman and the courts would expect a reasonable person to have mind to:
  • The level of control over the working relationship (do you control how, where and when a worker's work is performed?)
  • Tax arrangements (do you deduct PAYG income tax yourself from the worker's remuneration or is this left up to the worker themselves?)
  • How the worker is paid (Use an IT professional as an example. Are they paid periodic wages or salary to keep your computer systems ticking over, or do they come in to complete certain tasks for your business that they later invoice for?)
  • How equipment is supplied (Are you supplying the tools and equipment used, or does the worker provide and maintain their own significant tools and equipment to do the work?)
  • How the relationship looks 'from the outside' (Does the worker act as a representative of your business when he or she is working, under your own branding and goodwill? Or do they have a separate place of work, create their own goodwill, and advertise their services independently of you?)
  • Note that no single one of these indicators will clearly determine a worker's status. Employers (and employees!) can attempt to arrange their taxes to unlawfully claim an independent contractor relationship.

And an experienced, specialist worker who you don't need to exercise much control or supervision over will still in many cases be classified as an employee.

If your contractual arrangements with a worker are ever examined, it will involve taking a look at the whole working relationship - not just the written agreements, but the substantial terms and conditions on which work is performed day-to-day.

That means that you should doing the same. Many "employee or contractor" tests will be straightforward, but a few can be complex.

Is this something that could be an issue at your place? Inspire Success is all about making HR SIMPLE - no matter what size your business is. Contact Inspire Success for further information or 1300620 100.

Thanks to Portner Press and their workplace bulletin for the content of this article.

When is performance management bullying?

Rae Phillips - Wednesday, August 12, 2015

According to the legislation, unreasonable performance management of a worker may amount to bullying if it is repeated and creates a risk to health and safety.

If your employee is subject to unreasonable performance management they may apply for an order from the Fair Work Commission (FWC) under the Fair Work Act's anti-bullying powers, requiring this to stop.

Whether performance management is bullying depends on whether a reasonable person, having regard to the circumstances applying at the time, would consider performance management to be unreasonable.

Remember - reasonable performance management carried out in a reasonable manner is not bullying. Performance management may not be reasonable if not justified.

The FWC will not second-guess the employer's judgement as to whether poor work performance justified formal performance management.

It is enough for there to be "evident and intelligible justification (for taking management action) which a reasonable person would not consider unreasonable in all the circumstances."

But to be reasonable, the management action must be lawful. And it must not be 'irrational, absurd or ridiculous'.

By way of example, performance management that involves threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, abuse, belittling, bad faith, harassment, isolation, freezing-out, ostracism, innuendo, rumour-mongering and disrespect will be unreasonable.

Using performance management techniques as a means to achieve and justify a predetermined outcome of termination of employment will also be unreasonable.

Whatever the reasons, you should be aware of the impact of performance management on the worker, particularly if their emotional state or poor psychological health magnifies the impact.

However, bear in mind that the unreasonableness of the action is not judged by the worker's perception of it – and that performance management that is not perfect or ideal, or involve an unreasonable step, may still be reasonable.

If you don't follow your own procedures and policies regarding performance management, this too may point to unreasonableness.

Here are some example of performance management bullying claims:

In AB [2015] a case worker consultant with the Salvation Army claimed her performance management was bullying. The worker had been employed for 9 years to assist job seekers find employment.

The profile of the employee's clients had changed over time, with an increasing proportion of more challenging cases. This was part of her role and she received additional training. However, the employee objected to the number of high-need cases on safety grounds, and claimed her subsequent performance management was unreasonable.

The FWC noted a historical failure of the employer to assess individual work performance. This meant the introduction of individual performance management after several years was a significant change for the worker.

Additionally, the work intensity had increased as the organisation was required to deliver more efficient service. This led to a significant turnover of staff and adjustment difficulties for the worker.

However the FWC ruled the manner in which these changes were introduced and administered was not unreasonable. The employee's safety concerns were not substantiated and the resulting performance management was not unreasonable.

In Applicant v General Manager & Company [2014] an employee of a major national company alleged that a manager's aggressive tone and behaviour in a meeting had amounted to bullying.

The FWC ruled the fact an employee reacts badly to management action does not make the action unreasonable. In this case the general manager forcefully communicating in both words and body language was reasonable management action in all the circumstances. The FWC member stated:

"It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger. Just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable."

Is your performance management process reasonable?

Although none of these bullying claims were successful, all three highlighted the inherent risks of performance management processes which are inconsistently enforced, or not well-documented.

For you to achieve reasonable performance management in your business you should make sure you have these systems in place:

  • performance management policy;
  • using performance improvement plan;
  • line management training on offering constructive feedback and the appropriate use of performance management tools;
  • position descriptions; and
  • grievance procedures coupled with independent workplace investigations.

Is this something that could be an issue at your place? Inspire Success is all about making HR SIMPLE - no matter what size your business is. Contact Inspire Success for further information or 1300620 100.

Thanks to Portner Press and their workplace bulletin for the content of this article.

Managing Performance at your Place

Rae Phillips - Monday, August 10, 2015
We are just starting a brand new (financial year) in one of the most challenging times ever. Many of us have had to change the structure of our business, lay off staff and rethink our priorities. 

We have people in our organisations that we trust with the vision for our business and we are working hard to maintain productivity levels and customer satisfaction results. What can we do to make sure we keep our people fired up and excited? 

My previous newsletters have talked about many of the environmental and cultural things you can do in your workplace. But key to the business success is an effective performance management process.

So what should it include? I have 15 questions for you to consider how your business could benefit from improved performance and productivity from your people.

· Do you have a documented performance review process?
· Does the system apply to everyone?
· Is everyone trained in the use of the system?
· Are reviews undertaken regularly - 30 mins every 3 months?
· Does your system promote for continuous informal feedback?
· Are your position descriptions used as the basis for the review?
· Is the tool clear and simple to understand?
· Does it have objective measures, set down during the probation period and agreed by the employee?
· Are there qualitative and quantitative measures?
· Are poor performers easily identified?
· Are they managed swiftly – to improve or leave?
· Are there action plans for all under performers?
· Do you address managers with poor management skills?
· Are employees with poor communication and people skills never promoted to management roles?

It is good business practice to set up an effective performance management system; it helps improve the performance and productivity of individuals and teams. And that can only be good for the profit at your place!

Is this something that could be an issue at your place? Inspire Success is all about making HR SIMPLE - no matter what size your business is. Contact Inspire Success for further information or 1300620 100.

10 Questions to ask yourself about your Workplace Policies

Rae Phillips - Friday, May 29, 2015
When developing or reviewing a workplace policy, ask yourself the following questions to ensure that your policy includes everything it needs to:

  1. What is the policy’s purpose?
  2. What is the scope of the policy, i.e. what activities does it cover and who does it apply to?
  3. Are there any related policies or procedures that exist or are being developed? (If so, reference them.)
  4. What behaviour is acceptable under the policy? What examples and definitions can you include?
  5. What behaviour is unacceptable under the policy?
  6. Is any behaviour relating to the policy against the law? (If so, reference the related legislation and make it clear that legal action could be taken against any employee who engages in that behaviour. Don’t forget to mention any employee behaviour that you, as the employer, could be vicariously liable for.)
  7. What disciplinary action or performance management procedures will an employee face if they breach the policy?
  8. Who should employees contact with enquiries or complaints relating to the policy?
  9. Who has authorised the development of the policy?
  10. Are there any circumstances in which it will not be possible to follow the policy – if so, how will you respond?

Is this something that could be an issue at your place? Inspire Success is all about making HR SIMPLE - no matter what size your business is. Contact Inspire Success for further information or 1300620 100.

How to be SuperStream Compliant

Rae Phillips - Thursday, May 28, 2015
Be sure to be SuperStream compliant. 

If you’re an employer that has 20 or more employees, you should have started making contributions using SuperStream from July 1, 2014. You have until June 30, 2015, to ensure you’ve changed over. 

For small business employers, with 19 or fewer employees, your SuperStream soft-start begins on July 1, 2015, with one year to make the complete change.

This Employer Checklist makes a great guide to begin changing your super process, while the ATO’s SuperStream website provides plenty of information.

And don't forget that you should pay off whatever super contributions you owe prior to EOFY!

Is this something that could be an issue at your place? Inspire Success is all about making HR SIMPLE - no matter what size your business is. Contact Inspire Success for further information or 1300620 100.

FWC rules on how leave must be accrued

Rae Phillips - Tuesday, May 26, 2015
Looking at the Fair Work Act’s rules and requirements on leave for too long could give you double vision! On the one hand, the law says that an employee’s entitlement to paid annual leave accrues progressively during a year of service, according to their ordinary hours of work.

On the other hand, the National Employment Standards, the absolute bottom line of your employer obligations, talks about annual and personal/carer’s leave in terms of weeks and days. So what happens if your employees work long or unusual shifts? If an employee takes leave on a day where they would have usually worked 10 hours, is that a day’s less leave – or is it 10 hours’ less leave

The decision, RACV Road Party Service Ltd v Australian Municipal, Administrative, Clerical and Services Union (2015), confirmed that for the purposes of paid leave entitlements under the National Employment Standards, any references to a ‘week’ or ‘day’ of paid leave are understood to be an entitlement to be absent for 7 days or 24 hours respectively.

How the case came about
RACV, Victoria’s largest roadside assistance organisation, was in dispute with the Australian Municipal, Administrative, Clerical and Services Union (ASU) about proposed alterations to its enterprise agreement with employees. Specifically, the ASU wanted to maintain the agreement’s current system of deducting 7.6 hours for a day’s leave, regardless of the actual length of the shift worked. RACV wanted to deduct the actual rostered ordinary hours from the employee’s entitlement. 

Due to the RACV’s roster system, the length of shifts on rostered working days varied but was always more than 7.6 hours. So, for example, if an employee took a day’s leave on a day when they would have otherwise worked 10 hours, RACV wanted 10 hours to be deducted from that employee’s accrued leave.

What did the FWC decide?

RACV argued that because the Fair Work Act says that annual and personal/carer’s leave accrue progressively according to the ordinary hours of work, leave should be deducted on the ordinary hours of work. The FWC rejected the employer’s argument. It held that the National Employment Standards (NES) statutory provisions of the Fair Work Act do not express the annual leave entitlement itself in terms of an employee’s hours of work, but instead refer to days and weeks.

Additionally, they do not provide that annual leave when taken is to be debited by reference to ordinary hours of work.

According to the FWC, a week is not the simple aggregation of ordinary hours which an employee would have otherwise been rostered to perform during a seven day period, and should instead be given its ordinary meaning. Likewise, a day off work for annual leave is to be treated as a single day for the purpose of the NES leave entitlement, regardless of the hours that the employee was rostered to work on that day.

So what does this mean in practice?

This means that if a shift worker (as the employees in this case were) works 38 hours in four days in a week over the course of a year, they are still entitled under the NES to take a five week holiday or access 10 days of carer’s leave.

The reduction in an employee’s accrued NES entitlement to annual leave or personal/carer’s leave when the employee takes a day off work does not change depending upon the number of ordinary hours that would have been worked that day.

Any accrued entitlement is simply reduced by the amount of leave taken. If a week of leave is taken, the accrual of leave is reduced by a week, and if a day is taken, the accrual is reduced by a day.

Similarly, if an employee is granted 4 weeks’ annual leave it does not matter that one or more of those weeks would have contained a rostered day off-duty had the employee been at work and not on leave. The employee should still be paid his ordinary pay in respect of those four weeks.

The situation was different under the Workplace Relations Act which applied until 1 July 2009. Under the WR Act the entitlement arose in hours accruing with each four week period of leave.

Is this something that could be an issue at your place? Inspire Success is all about making HR SIMPLE - no matter what size your business is. Contact Inspire Success for further information or 1300620 100.

Thanks to Portner Press and the Workplace Bulletin for this article

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