Understand your rights as an employer
I’m often asked the question “Do employers have any rights at all?” This is usually asked out of frustration following an employee making a phone call to the Fair Work Ombudsman about some issue at work. Or when an employer finally wants to do something about disciplining a staff member who has been behaving badly for some time. This is a familiar yet understandable situation in which employers often find themselves because of time pressures and being unable to direct focus away from their core businesses to deal with what might seem, at the time, a trivial issue. The problem arises when several smaller issues mount up and paint a picture of a person as an undesirable employee.
The truth is, of course, that the employers do have rights under various pieces of workplace legislation. Employers have the right to recruit who they feel is the best person for the job, to change the duties of employees (within reason) or to instantly dismiss an employee for serious misconduct. Also, by taking advantage of the minimum employment period, employers also have the freedom to determine who they dismiss within that time, without fear of an unfair dismissal claim. The message here is that employers can feel confident in addressing performance or conduct issues by understanding their rights and acting accordingly.
One real point of difference between employers’ and employees’ rights is that the legislation typically requires employers to be proactive so that they are in a situation where they are best placed to rely upon their rights. In contrast, employees tend to enjoy the more easily exercisable rights where the employer has been reactive rather than proactive.
For example, take the situation described above where an employer finally decides to dismiss an employee who has been conducting himself in a less than professional manner at work for some time. If the employer has not been proactive by formally counselling this employee about his conduct and then one day snaps and dismisses the employee when the employer couldn’t tolerate it any longer, the employer will not be in the best position to defend an unfair dismissal claim. This is the very situation where an employer feels that the employee has all the rights as it was the employer who is typically liable for compensation, despite the fact that the employee was not doing the right thing.
However, if the employer had taken the time to exercise its right to performance manage the employee in an appropriate way prior to dismissal, the employer would be in a far stronger position to successfully defend the claim. Where proper performance management has taken place, the likelihood of a claim being made at all is reduced. This is just one example.
Of course, with rights, come obligations. For employers, these include the obligation not to discriminate against employees, the obligation to pay employees and otherwise provide minimum conditions of employment in accordance with the NES, Awards or Agreements as well as ensuring a healthy and safe working environment.
Employees also have obligations. These include the obligation to carry out their work in accordance with their employment contract, to be just and faithful to their employer and to work in a healthy and safe manner.
Ultimately, employers who act in a manner which is fair and reasonable will be able to exercise their rights. They will also reap the benefits of a happier and more productive workforce. Having said that, it is always important that, when dealing with issues such as poor conduct or performance, aggressive behaviour, drugs & alcohol, injuries, health & safety or conflict in the workplace, expert advice be sought before taking action which may result in dismissal. If these matters aren’t handled correctly, not only will the employer feel that they have no rights, the impact on managers, business owners, the individuals involved, the business culture and performance and, therefore profits will all be negatively impacted.
At HR Business Direction we are able to assist with your employee compliance/ governance. Contact us here.
Melissa Fitzpatrick LLB (Hons) B.IntBus
Industrial and Employment Relations Specialist
(07) 3890 2066
melissa.fitzpatrick@hrbd.com.au
www.hrbd.com.au