APPROPRIATE MANAGEMENT of unfair dismissals has become a critical issue for employers since the introduction of WorkChoices earlier this year.
Speaking at a recent breakfast, Campbell Fisher, managing partner at law firm Fisher Cartwright Berriman, said: “There are still significant risks associated with managing people and certainly having separations with employment.”
While WorkChoices aims to curtail unfair dismissals, he said employers and HR professionals should proceed with caution and only terminate employees as a last resort.
Employers must ensure they go through relevant processes first, according to Greg Blacker, associate and solicitor at Fisher Cartwright Berriman. “Too often people start with termination in mind, believing redundancy equals termination,” he said.
When considering redundancies, employers should question whether genuine operational reasons of exclusion apply in order to mitigate the risk of an unfair dismissal. If termination appears a logical response to an organisation's restructure, then employers need to ensure they cover off all possibilities.
Employers should consider whether the work previously performed by the employee is available. If so, alternative work that the employee is capable of performing should be offered to the employee.
Employers were also urged to be cautious about representations made in employment contracts. This makes the interplay between HR policies and contracts relevant, said Fisher.
He said related promises should be limited to matters critical to the employment relationship, and it was essential to ensure conduct was consistent with policy.
Corporate values and mission statements must also be taken into account in terms, according to Fisher. “We try and encourage our clients not to put them in contracts of employment, because they often import a whole lot of obligations that otherwise wouldn't be there,” he said.
To illustrate, Fisher detailed the recent case of Nikolich v Goldman Sachs JB Were Services Pty Ltd. “From an employment law perspective, the interaction between contracts and policies is the most critical part of this case,” he said, noting that providing these at an early stage of negotiating employment contracts could lead to problems.
“The process might need to be changed, so that contractual offers are given and that in fact policies are not provided to employees, until the employees commence induction once employment has started,” Fisher said.
Employers need to err on the side of caution when recruiting people, as evidenced by the recent Walker v Citigroup Global Markets case. Employers must ensure effective management of their relationship with recruiters in order to avoid problematic representations being made, Fisher said.
“This case shows some of the dangers of recruiting people, what representations can be made and the definition of contracts.”
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